In the matter of the Will and Estate of the late Maria Carmela Mazza
[2023] VSC 327
•14 June 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S ECI 2022 05352
IN THE MATTER of an application under s 51 of the Trustee Act 1958 (Vic)
IN THE MATTER of the Will and Estate of the late MARIA CARMELA MAZZA (deceased)
BETWEEN:
| LIDIA GIOVANNA DELLO RUSSO and others (according to the attached schedule) | Plaintiffs |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 14 June 2023 |
CASE MAY BE CITED AS: | In the matter of the Will and Estate of the late Maria Carmela Mazza |
MEDIUM NEUTRAL CITATION: | [2023] VSC 327 |
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TRUSTS – Where registered proprietor is deceased and no grant of probate made – Where no trustee due to failure to prove will – Where chain of representation broken by failure to prove a will – Whether to vest property in plaintiffs – Where plaintiffs own the property beneficially and the class of beneficiaries is established and they are adults – Administration and Probate Act 1958 (Vic) s 17(3)(c), Trustee Act 1958 (Vic) s 51.
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APPEARANCES: | Counsel | Solicitors |
| For the First, Second, Third, Fourth, Sixth and Seventh Plaintiffs | Mr R D Shepherd | Contested Wills & Probate Lawyers |
| For the Fifth Plaintiff | Johnston Construction Lawyers |
HIS HONOUR:
Introduction
This proceeding concerns a property at 27 Page Street, Albert Park. Maria Carmela Mazza was the registered proprietor of that property. She died on 29 September 2006. Her will appointed one of her daughters, Assunta Dello Russo, her sole executrix and trustee. Probate of her will was granted to Assunta on 27 February 2007. In her will, she left the property to her trustee (Assunta Dello Russo) on trust for the use and occupation of another one of her daughters, Rosa Mazza, and otherwise, upon the death of Rosa Mazza, upon trust for those of her grandchildren that were alive at the time of Rosa Mazza’s death. Rosa Mazza died on 7 August 2019. In this proceeding, Maria Mazza’s seven grandchildren, the first to seventh plaintiffs, all of whom were alive on 7 August 2019 and all of whom are adults, seek orders by which they may become registered proprietors of the property. There are no unascertained beneficiaries.
The grandchildren have applied to the Court because of various procedural obstacles that have fallen in their way. The relevant chain of events includes the following:
(a) On 7 November 2008, Assunta Dello Russo, as trustee, became the registered proprietor of the property. She is referred to in the certificate of title as the legal personal representative of Maria Mazza, deceased;
(b) Rosa Mazza did not register her interest in the property on title. The seven grandchildren also did not register their interest;
(c) On 20 July 2015, Assunta Dello Russo died. She had appointed her husband, Gerardo Dello Russo, as her sole executor and trustee.[1] She bequeathed her estate to him. No grant of probate of Assunta Dello Russo’s will was obtained;
[1]In the event of his predeceasing her or dying within one month of her death, she appointed Lidia Dello Russo to be executor and trustee. This may be ignored because Gerardo Dello Russo did not predecease her or die within one month of her death.
(d) On 17 November 2015, Rosa Mazza lodged a caveat over the property claiming a life estate;
(e) On 8 July 2018, Gerardo Dello Russo died. He had appointed his daughter (who is one of the grandchildren and the first plaintiff) Lidia Giovanna Dello Russo as his executor and trustee. Probate of his will has been granted;
(f) On 7 August 2019, Rosa Mazza died. That determined her life interest in the property;
(g) On 21 June 2020, Lidia Giovanna Dello Russo applied for a grant of administration of the estate of Maria Mazza de bonis non, that is, ‘of the estate not administered’. The Registrar of Probates refused that application on the grounds that there were ‘no executorial duties remaining’;
(h) On 19 August 2020, Lidia Giovanna Dello Russo applied to the Registrar of Titles under s 58 of the Transfer of Land Act 1958 to be registered as the proprietor of the land. That section applies only if, among other things, it appears to the Registrar of Titles that a person is a trustee of land. The Registrar of Titles refused that application, including because letters of administration appointing Lidia Giovanna Dello Russo as administrator of Assunta Dello Russo’s estate were not produced. (As noted above, Assunta Dello Russo was the registered proprietor of the property);
(i) On 16 September 2020, Lidia Giovanna Dello Russo applied to the Registrar of Titles under s 49 of the Transfer of Land Act 1958 to be recorded as proprietor of the property. She asserted that she was ‘the legal personal representative’ of Assunta Dello Russo (the registered proprietor). The Registrar of Titles was not prepared to grant her application, because, it seems, Assunta Dello Russo’s will was never proved.
The upshot of the above is that the deceased Assunta Dello Russo remains the registered proprietor of the property, and the beneficial ownership is with the seven grandchildren.
It is necessary to recall that there is a difference between an executor of an estate and a trustee. Although the one person often occupies both positions, they are conceptually discrete positions. The executor brings in the assets of the deceased and disposes of them in accordance with the deceased’s instructions. The trustee holds the legal interest in property where that is what is required in order to dispose of the estate. If a testator provides for part of an estate to be held on trust, the role of the executor may cease once the trust has been established, and it is thereafter the role of the trustee to hold the property and to deal with it in accordance with the terms of that trust. The correct analysis is that Assunta Dello Russo, when she died, held the property in her capacity as trustee, not in her capacity as executrix. Accordingly, it is necessary to turn to trust law to ascertain the consequences of her death.
Maria Mazza’s will did not provide for another person taking over as trustee on the death of Assunta Dello Russo. Accordingly, the trust was thereafter without a trustee able to execute trust powers.[2] However, given that there were by then no active duties to perform, the executor named in Assunta Dello Russo’s will, Gerardo Dello Russo, would have had the power to transfer the property to the grandchildren.[3] On his death, his executor, Lidia Giovanna Dello Russo, would have had that power.
[2]In re Crunden and Meux’s Contract [1909] 1 Ch 690; Ballenden v Bryant (No 2) [2013] NSWSC 454, [9]-[13] (Pembroke J).
[3]Robson v Flight (1865) 4 De GJ & S 608; 46 ER 1054; Laycock v Registrar-General (2012) 16 BPR 30,367; [2012] NSWSC 248, [16] (Rein J).
That said, in the absence of a grant of probate of Assunta Dello Russo’s will, the Court cannot operate on the assumption that Gerardo Dello Russo was Assunta Dello Russo’s executor. The ‘chain of representation’ is broken by the failure to obtain probate of Assunta Dello Russo’s will.’[4] Equally, although s 22(2) of Trustee Act 1958 provides that that the personal representative of a deceased trustee may perform any power or trust which the deceased trustee could perform,[5] that does not apply where the executor has not proved the will.[6]
[4]Administration and Probate Act 1958 (Vic) s 17(3)(c).
[5]Trustee Act 1958 (Vic) s 22(2).
[6]Ibid s 22(3).
Accordingly, it seems to me the correct analysis is that:
(a) There is, at present, a trust without a person holding the office of trustee;
(b) If there were a trustee, the beneficiaries could terminate the trust and require the beneficiary to transfer to them the property;[7] and
(c) The present registered proprietor of the property has died and there is no identifiable person who has the power to transfer the legal estate in the property to the beneficiaries.
[7]This is known as the rule in Saunders v Vautier [1835-42] All ER Rep 58; (1841) Cr & Ph 240; 41 ER 482.
There are a number of options that could, possibly, now be followed. One is that steps could be taken to have Assunta Dello Russo’s will proved by a grant of administration with the will annexed by the legal personal representative (Lidia Giovanna Dello Russo) of the sole beneficiary (the estate of Gerardo Dello Russo).[8] As this would be a grant of administration, this would not have the effect of repairing the ‘chain of representation’,[9] but would allow Lidia Giovanna Dello Russo to exercise powers with respect of the trust.[10] Assunta Dello Russo died almost seven years ago and there is otherwise no reason to do this. Further, a grant could only be obtained in Assunta Dello Russo’s estate if she died with assets in Victoria, and it is unclear if this is the case. Another might be for me to appoint a trustee and for that person then to transfer the property to the grandchildren. The trustee would have no other duties to perform. Another option, and the option now applied for, is for me to make an order directly vesting the property in the grandchildren.
[8]See, eg, Administration and Probate Act 1958 (Vic) s 15.
[9]Ibid s 17(3)(c).
[10]Trustees Act 1958 (Vic) s 22.
Under s 51(2)(l) of the Trustee Act 1958, I may make a vesting order ‘where there is no personal representative of the last trustee who was entitled to or possessed of any property or where it is uncertain who is the personal representative of such trustee’. Assunta Dello Russo was the last trustee who was entitled to or possessed of the property. In circumstances where her will has not been proved by an executor or grant of administration has been made, I consider that this criterion is met.
The affidavit material filed has satisfied me of the facts set out in paras 1 to 3 above. In these circumstances, it seems to me that the most appropriate step is to make the vesting order applied for. Accordingly, I will order that the property at 27 Page Street, Albert Park, more particularly described in certificate of title volume 02419 folio 759, vest in Lidia Giovanna Dello Russo, Ester Debora Salvo, David Dello Russo, Grazia Marotti, Samuela Dello Russo, Joseph Emanuel Inneo and Anna Inneo, being the plaintiffs in this proceeding, as tenants in common.
I will not make an order directed at the Registrar of Titles. The Registrar of Titles is not a party to this proceeding. Further, I doubt, having regard to s 58(2) of the Trustee Act 1958, that it is necessary for me to do so. I will, however, reserve to the plaintiffs liberty to apply in the event that some further procedural order is required to give effect to my intention.
SCHEDULE OF PARTIES
S ECI 2022 05352
| LIDIA GIOVANNA DELLO RUSSO | First Plaintiff |
| ESTER DEBORA SALVO | Second Plaintiff |
| DAVID DELLO RUSSO | Third Plaintiff |
| GRAZIA MAROTTI | Fourth Plaintiff |
| SAMUELA DELLO RUSSO | Fifth Plaintiff |
| JOSEPH EMANUEL INNEO | Sixth Plaintiff |
| ANNA INNEO | Seventh Plaintiff |
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