In the will of (No 3) - [2010] VSC 140

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

---

JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATES OF HEARING:	19 and 22 February, 11 March and 9 April 2010
DATE OF JUDGMENT:	9 April 2010
CASE MAY BE CITED AS:	In the will of Eva Orloff (No 3)
MEDIUM NEUTRAL CITATION:	[2010] VSC 140

---

ADMINISTRATION AND PROBATE – renunciation by named executor and trustee of deceased estate - application for grant of letters of administration – notification of all interested parties of right to apply for administration - whether applicant interested in administration of estate – person with largest interest in the estate requesting applicant to be appointed administrator – application granted – court’s discretion in requiring administration guarantee – s 15 and 57 Administration and Probate Act 1958

TRUSTS – renunciation of probate by executor and trustee of deceased estate – renunciation accepted by the court – power of executor and trustee to appoint new trustee under s 41(1) and (5)of the Trustee Act 1958 – appointment of new trustee prior to trusts under estate coming into effect – new trustee duly appointed – s 41 the Trustee Act 1958

---

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

Giggins, Re [1969] VR 208
Korp, In the Matter of [2005] VSC 337
Pierce (deceased), In Re (1886) 12 VLR 733
Shaw v Blanchett [2006] VSC 295
Tratt (Deceased), Re (1980) VR 657
In the Will of Eva Orlof [2010] VSC 48
In the Will of Eva Orloff (No 2) [2010] VSC 83

HIS HONOUR:

I have before me applications:

(a) that letters of administration with the Will dated 25 October 2004 and the codicil dated 7 June 2006 annexed of the estate of Eva Orloff, deceased, be granted to Ms Terracall, the first plaintiff; and

(b) that the court declare that Ms Terracall has been duly appointed as the trustee of the estate pursuant to the will and codicil and the trusts thereunder.

I have previously considered these applications and adjourned them for the reasons given in In the will of Eva Orloff[1] and In the will of Eva Orloff (No 2).[2] The issues that arose in the applications are identified in those reasons. It is unnecessary for me to set out the relevant facts again.
[1][2010] VSC 48.
[2][2010] VSC 83.

Suffice to say, I am now satisfied that proper notice has been given to all the beneficiaries of this application and that all relevant interested parties have been advised of their right to apply for administration if they so wished.

On the previous occasion the matter was before me, I expressed the view that it would be appropriate for clear evidence to be led that the second plaintiff Ms Steinlauf had…

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.

Keep reading for free

Create a free CaseChat account to read In the will of (No 3) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] VSC 140
Decision Date: 9 April 2010

CaseChat Overview and Summary

The case involved an application for a grant of letters of administration following the renunciation by the named executor and trustee of a deceased estate. The application was made in the Supreme Court of Victoria. The deceased had left a will that appointed both the executor and the trustee. However, both renounced their positions, necessitating the appointment of an administrator. The applicant sought to be appointed as the administrator of the estate.

The primary legal issue before the court was whether the applicant was interested in the administration of the estate. The court needed to determine if the applicant had a sufficient interest in the estate to warrant the grant of letters of administration. Additionally, the court had to consider the discretion in requiring an administration guarantee and the implications of the renunciation on the appointment of a new trustee.

The court found that the applicant was indeed interested in the administration of the estate, as they were the person with the largest interest in the estate. The court accepted the renunciation by the original executor and trustee and exercised its discretion to grant the letters of administration to the applicant. The court also considered the provisions of sections 15 and 57 of the Administration and Probate Act 1958 in its decision. In terms of the trust aspect, the court noted that the executor and trustee had the power to appoint a new trustee under sections 41(1) and (5) of the Trustee Act 1958. The new trustee was duly appointed before the trusts under the estate came into effect.

The court granted the application for letters of administration to the applicant. The final orders included the appointment of the applicant as the administrator of the estate and the acceptance of the renunciation of the original executor and trustee. The court also appointed a new trustee as per the provisions of the Trustee Act 1958.

Orders