In the will of - [2010] VSC 48

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION

PRACTICE COURT

No. 10076 of 2009

IN THE WILL OF EVA ORLOFF (DECEASED)

PAULETTE JOAN TERRACALL and ELLY STEINLAUF	Plaintiffs
v
JOSEPH DENNIS CHURKOVICH	Defendant

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JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 February 2010
DATE OF JUDGMENT:	25 February 2010
CASE MAY BE CITED AS:	In the will of Eva Orloff
MEDIUM NEUTRAL CITATION:	[2010] VSC 48

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ADMINISTRATION AND PROBATE – renunciation of probate by executor – form of renunciation – requirement to declare no intermeddling by executor with the estate – power of court to accept renunciation in the event of intermeddling – application for passing over the executor in grant of administration

TRUSTS - appointment of trustee under a testamentary trust – validity of exercise of power to appoint substitute trustee under s 41 of the Trustee Act 1958 before the trust becomes effective or the trustee accepts the appointment – necessary conditions for a trust to come into effect – acceptance by trustee of office

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr M A Robins	Nathan Kuperholz
For the Defendant	No appearance

Cases cited
In the Will of Lyndon [1960] VR 112
Mallott v Wilson [1903] 2 Ch 494

Monty Financial Services Ltd v Delmo [1996] VR 65

Re Higginbottom [1892] 3 Ch 132
Sinnott v Hockin (1882) 8 VLR (E) 205

HIS HONOUR:

This application concerns the administration of the estate of Eva Orloff, who died on 4 September 2009. Mrs Orloff was aged 93 at her death having been born in Berlin , Germany and was a survivor of the holocaust. By her last will and testament the testatrix appointed her solicitor, the defendant, Joseph Dennis Churkovich, the executor and trustee of her estate. The testatrix also made a codicil to her will on 7 June 2006.

The testatrix’s estate exceeds $6m. Under her will and codicil, the bulk of her estate fell into her residuary estate. The testatrix left her family photographs and personal mementoes to her daughter, the first plaintiff. Under her residuary estate, she left $400,000 to a friend, Jasmine Lucic. The balance was divided into two trust funds: one a charitable trust called “The Eva Orloff Trust” for the benefit of several well known medical research institutions; the other in trust for her only granddaughter, Elly Steinlauf, the second named plaintiff, the daughter of the first plaintiff Paulette Terracall. The testatrix settled $650,000 on the charitable trust and the balance of her residue on the trust in favour of her granddaughter. By her codicil, the testatrix left a small sum to another friend.

Under clause 11 of the will, the defendant, as a solicitor, was entitled to a commission of two per cent of the gross capital value of the testatrix’s estate and three and one half percent of the income received by her trustees. Under clause 12 of the will, the defendant was entitled to charge and be paid all…

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: [2010] VSC 48
Decision Date: 25 February 2010

CaseChat Overview and Summary

In the recent case, the executors of the estate of a deceased individual were required to renounce their roles before the grant of probate. The executors had intermeddled with the estate, and there was a dispute over the validity of their renunciation. The court was tasked with determining whether the renunciation could still be accepted, despite the executors' actions. The court also had to decide whether the executors could be passed over in the grant of administration in favor of an alternate applicant.

The central legal issues involved the requirements for a valid renunciation by executors, the implications of intermeddling with the estate, and the court's discretion to accept a renunciation under such circumstances. Additionally, the court needed to address the validity of appointing a substitute trustee under a testamentary trust before the trust's effective date or the original trustee's acceptance of the role.

The court found that while the executors had indeed intermeddled with the estate, this did not automatically invalidate their renunciation. The court exercised its discretion to accept the renunciation, considering the circumstances and the lack of prejudice to interested parties. The court also determined that the appointment of a substitute trustee under the relevant statute was valid, provided that the trust had come into effect and the original trustee had accepted the role. This ruling hinged on the interpretation of statutory conditions and the practicalities of trust administration.

In conclusion, the court granted the application to pass over the executors in the grant of administration, allowing an alternate applicant to assume the role. The court's decision underscored the importance of timely renunciation and the flexibility of the court in accepting renunciations even when there has been some intermeddling with the estate. The ruling also clarified the conditions under which a substitute trustee can be appointed under the statute.

Orders