Henry v Henry - [2017] VSC 378

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2017 00203

IN THE MATTER of the intestate estate of EDNA ELSIE HENRY, deceased

-and-

IN THE MATTER of sections 48 and 51(2)(a) of the Trustee Act 1958

MARK HENRY	First Plaintiff
-and-
RAYNER MARSH (as one of the executors of the Will of JOSEPH JOHN HENRY, deceased)	Second Plaintiff
v
BRIAN HENRY (as representing himself and all the other next of kin of EDNA ELSIE HENRY)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 June 2017
DATE OF JUDGMENT:	22 June 2017
CASE MAY BE CITED AS:	Henry & Anor v Henry
MEDIUM NEUTRAL CITATION:	[2017] VSC 378

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ESTATES – Where deceased died in 1985 – Where administrator of estate died in 2008 without finalising estate – Where defendant has de facto control of the remaining asset of the estate – Where defendant refused to distribute estate property to next of kin on basis of alleged family arrangement during lifetime of deceased’s children – Where no written document recording alleged family arrangement exists – Where plaintiff next of kin by inheritance seeks distribution of estate property.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr R Boaden	Aitken Partners
For the Defendant	Mr G Baker	Woodhams O’Keefe & Co

HER HONOUR:

Introduction

By originating motion filed 23 January 2017, the plaintiffs sought orders, inter alia, that they be appointed trustees of the estate of Edna Elsie Henry, deceased (‘the deceased’), that the title to the property situated at 132 Cobden Street, South Melbourne (‘the property’) be vested in them in their capacity as the new trustees of the estate of the deceased and costs against the defendant personally.

After a number of directions hearings, the proceeding was listed for trial on 22 June 2017. At trial, the defendant resisted the substantive orders sought by the plaintiffs, as well as the costs orders sought by the plaintiffs.

The Court made the orders set out at [29] on that day, with written reasons to be provided by the Court, which are now provided.

Background

The deceased died intestate on 19 March 1985. The next of kin entitled to her estate were her five surviving children and the children of her daughter, Elsie Carron, who predeceased her.

Her estate consisted of the property and $1,206 in the bank. For probate purposes, the property was valued at $32,000. At trial, the only remaining assets in her estate was the property, currently valued between $1,050,000 to $1,150,000.

On 28 October 1985, the deceased’s eldest surviving son, John Joseph Henry (‘John Henry’), obtained a grant of letters of administration of the estate. On 14 November 1985, John Henry was registered on the title of the property as legal personal representative of the deceased.

John Henry died on 16 January 2008 without having distributed the property. The property remains registered in his name. Pursuant to his will dated 2 December 1992, John…

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.

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Details

Case: [2017] VSC 378
Decision Date: 22 June 2017

CaseChat Overview and Summary

The case of Henry v Henry involves the unresolved estate of a deceased person who died in 1985. The administrator of the estate, who passed away in 2008, had not finalised the estate before their death. The remaining asset of the estate is under the de facto control of the defendant. The plaintiff, who is the next of kin by inheritance, is seeking distribution of the estate property. The defendant has refused to distribute the property, claiming an alleged family arrangement during the lifetime of the deceased’s children, although no written document exists to support this claim.

The primary legal issues in this case revolve around the validity and enforceability of the alleged family arrangement. The court had to determine whether such an arrangement, which was not documented in writing, could override the statutory rights of the next of kin under the Succession Act. The court also needed to assess whether the de facto control exercised by the defendant over the estate asset constituted an effective administration of the estate, and if so, whether it superseded the plaintiff's entitlement to inheritance.

The court found that the alleged family arrangement was not enforceable as it was not documented in writing, which is a requirement under the relevant legislation. The court emphasised the importance of written agreements in family settlements to ensure clarity and prevent disputes. Furthermore, the court held that the de facto control exercised by the defendant did not constitute proper administration of the estate, and therefore, the plaintiff's entitlement to the estate property was upheld. The court ordered that the estate property be distributed to the plaintiff as the rightful next of kin.

Orders