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Groser v Equity Trustees Ltd

Groser v Equity Trustees Ltd

Case [2008] VSC 163 15 May 2008

Probate

Unfulfilled Conditions

Consent Orders

Costs

Statutory Construction

Succession Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8205 of 2006

*ANTHONY PAUL GROSER (who sues as the Executor of the Will of Marjorie Olive Groser, deceased)*	*Plaintiff*
v
EQUITY TRUSTEES LIMITED (ACN 004 031 298) (which is sued as the Executor of the Will of Adrian Charles Noel Groser, deceased)	*Defendant*

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*JUDGE*:	*HABERSBERGER J*
*WHERE HELD*:	*MELBOURNE*
*DATE OF HEARING*:	*6 MARCH 2008*
*DATE OF JUDGMENT*:	*15 MAY 2008*
*CASE MAY BE CITED AS*:	*GROSER v EQUITY TRUSTEES LTD*
*MEDIUM NEUTRAL CITATION*:	*[2008] VSC 163*

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Probate – Testator’s family maintenance – Unfulfilled conditions subsequent to agreement settling disputed claim - Death of claimant prior to obtaining Attorney-General’s non-opposition to settlement – Attorney-General’s favourable decision made in ignorance of death of claimant - Whether Attorney-General’s decision invalid and a nullity – Whether Court bound to make the consent orders agreed to in the settlement – Proceeding dismissed – Costs - Administration and Probate Act 1958 Part IV.

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*APPEARANCES*:	*Counsel*	*Solicitors*
*For the Plaintiff*	*Mr R. B. Phillips*	*McNab McNab and Starke*
*For the Defendant*	*Mr A. Flower*	*Hunt and Hunt*
*For the Attorney-General of Victoria (intervening)*	*Ms S. MacDougall*	*Victorian Government Solicitor*

HIS HONOUR:

The issue for determination in this proceeding arises out of a conditional settlement of an application by the then plaintiff, Marjorie Olive Groser, for further provision out of the estate of her late husband, Adrian Charles Noel Groser, pursuant to Part IV of the Administration and Probate Act 1958 (“the Act”). The enforceability of that settlement has been called into question because Mrs Groser died before the two conditions subsequent were satisfied. Those conditions were that the Attorney-General approved the settlement and that the Court made the proposed consent orders.

The Factual Background

Mr Groser died on 8 December 2000. Probate of his will was granted to the defendant, Equity Trustees Limited (“Equity Trustees”), on 29 March 2001. In August 2006, Mrs Groser commenced this proceeding. Pursuant to s.99 of the Act, Gillard J extended the time within which Mrs Groser could bring her application.[1]
[1] Groser v Equity Trustees Ltd (2007) 16 VR 101.

In his will, after appointing Equity Trustees as his executor and trustee, Mr Groser left a number of small pecuniary legacies to five nieces and a nephew. Clause 3 of the will gave a life interest to Mrs Groser in the matrimonial home in Glen Waverley. In addition, Mrs Groser was given the power to call upon the trustee to sell the Glen Waverley property, and out of the net proceeds of sale to purchase another property as a residence and to hold the same on trust for her. Any surplus after the sale and purchase was immediately to fall into and form part of the residuary estate. The clause went on to provide that upon the death of Mrs Groser, the original or substituted property would fall into and form part of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Groser v Equity Trustees Ltd

Details

AGLC: Groser v Equity Trustees Ltd [2008] VSC 163
Case: [2008] VSC 163
Decision Date: 15 May 2008

CaseChat Overview and Summary

The case of Groser v Equity Trustees Ltd involved a dispute concerning the estate of a deceased individual. The primary issue was whether the Court was obligated to implement consent orders that had been agreed upon in a settlement, which was contingent upon the claimant obtaining the non-opposition of the Attorney-General to the settlement. The claimant passed away before securing the Attorney-General's non-opposition, but the Attorney-General made a favourable decision post-mortem, unaware of the claimant's death. The Court had to determine if the Attorney-General's decision was invalid and whether the Court was required to proceed with the consent orders.

The central legal questions addressed by the Court were whether the Attorney-General's decision, made without knowledge of the claimant's death, was a nullity and if the Court was bound by the terms of the settlement agreement. The Court examined the statutory framework provided by the Administration and Probate Act 1958, specifically Part IV, to understand the conditions under which the consent orders could be enforced. The Court needed to assess if the procedural requirements were adhered to and if the agreement was valid in light of the claimant's death before obtaining the necessary non-opposition.

The Court ruled that the Attorney-General's decision, despite being made in ignorance of the claimant's death, was not invalid or a nullity. The Court found that the statutory provisions allowed for the consent orders to be implemented even after the claimant's death, as the agreement was still valid. Consequently, the Court determined that it was bound by the terms of the settlement and had to make the consent orders as agreed. The proceeding was dismissed, and the Court ordered that costs be borne by the parties as per the Administration and Probate Act 1958 Part IV.

Orders