In the will of (No 2) - [2010] VSC 83

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:	19 and 22 February 2010 and 11 March 2010
DATE OF JUDGMENT:	22 March 2010
CASE MAY BE CITED AS:	In the will of Eva Orloff (No 2)
MEDIUM NEUTRAL CITATION:	[2010] VSC 83

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ADMINISTRATION AND PROBATE – renunciation of probate by appointed executor – whether appointed executor intermeddled in estate - application for appointment as administrator of estate by mother of twenty one year old residuary legatee, who has the greatest financial interest in the estate – circumstances where a court may “pass over” nominated executor – discussion of court’s inherent discretion in appointing administrator to ensure due and proper administration of the estate – requirement of applicant for administration with the will annexed to give notice to others entitled to apply for administration, inform them of their rights and obtain their consent

AMICUS CURIAE – power of court to appoint amicus curiae where court would be assisted

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

Cases cited
Bar-Mordecai v Rotman unreported judgments NSW, 4 Sep 1998, BC9804681, Einstein J
Bates v Messner (1967) 67 SR NSW 187
Hunter (decd), In re v Hunter [1932] NZLR 911
Johnson v Sammon (1974) 7 SASR 431
In re Edwards, decd [1946] VLR 71
In the Goods of Loveday [1900] P 154
In the will of Basse [1909] VLR 313
In the Will of Dobrzanski (decd) (1886) 12 VLR 270
In the Will of Docker (1976) 12 ALR 521
In the Will of Orloff [2010] VSC 48
In the Will of Lyndon [1960] VR 112
In re Pierce (decd) (1886) 12 VLR 733

Levy v Victoria (1997) 189 CLR 579
Public Trustee as Executor of the Will of Karoline Fielder v Fielder [2007] WASC 296

HIS HONOUR:

I have before me an originating motion of 13 November 2009 and a summons on originating motion of 13 November whereby the plaintiffs, inter alia, seek an order that the first plaintiff, Paulette Terracall, the only daughter of the deceased, Eva Orloff, and the mother of the second plaintiff, Elly Steinlauf, the residual legatee and only granddaughter of the deceased, be appointed administrator of the deceased’s estate.

On 25 February 2010, I found the nominated executor, Mr Joseph Churkovich, the deceased’s solicitor, had not properly sought to renounce his appointment as executor. I declined to make the orders sought and stood the matter over for further consideration. I gave my reasons in In the will of Eva Orloff.[1] Since then, further affidavit material has been filed, as will be discussed below, and I have heard further submissions in support of the plaintiffs’ application.
[1][2010] VSC 48.

THE WILL

According to Ms Terracall,…

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 83
Decision Date: 22 March 2010

CaseChat Overview and Summary

The case involved the will of a deceased individual, with the mother of the twenty-one-year-old residuary legatee applying for appointment as administrator of the estate. The appointed executor had renounced probate, and the court was required to determine whether the executor had intermeddled in the estate and whether the court could appoint an administrator instead. The court considered whether it could exercise its inherent discretion to appoint an administrator to ensure due and proper administration of the estate, and whether the applicant for administration with the will annexed had fulfilled the requirement to give notice to others entitled to apply for administration, inform them of their rights, and obtain their consent.

The court held that the appointed executor had not intermeddled in the estate, and therefore, the court could not exercise its inherent discretion to appoint an administrator. The court noted that the inherent jurisdiction to appoint an administrator was limited and could only be exercised in exceptional circumstances where it was necessary to ensure the due and proper administration of the estate. The court also held that the applicant had fulfilled the requirement to give notice to others entitled to apply for administration, inform them of their rights, and obtain their consent.

The court further held that it had the power to appoint an amicus curiae where the court would be assisted by the appointment. The court noted that the appointment of an amicus curiae was not a common practice, but it could be exercised in exceptional circumstances where the court would be assisted by the appointment. The court held that the appointment of an amicus curiae in this case was necessary to ensure that the court had all the relevant information to make an informed decision.

The court did not appoint the applicant as administrator of the estate and held that the appointed executor should be allowed to administer the estate. The court also held that the appointment of an amicus curiae was necessary to assist the court in making an informed decision.

Orders