Jackson v James - [2023] VSC 100

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2021 04110

CHRISTOPHER GERARD JACKSON (who sues as the executor of the Will and Estate of Felicity Irene Beale)	Plaintiff
v
JENNIFER SUSAN JAMES and DAVID JOHN JAMES (who are sued as Trustees of the Jennifer James Testamentary Trust, and personally)	Defendants

---

JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	Written submissions filed on 25 and 31 January 2023
DATE OF JUDGMENT:	6 March 2023
CASE MAY BE CITED AS:	Jackson v James & Anor
MEDIUM NEUTRAL CITATION:	[2023] VSC 100

---

COSTS – Executors and trustees – Indemnification – Where executor sought passing of administration account – Whether executor’s costs should be paid out of estate – Where no determination on the merits – Supreme Court Act 1986, s 24 – Trustee Act 1958, s 36 – Supreme Court (General Civil Procedure) Rules 2015, r 63.26 – Wales v Wales [2015] VSCA 345.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Kathy Wilson Legal
For the Defendants	Gadens

HIS HONOUR:

Background

On 19 August 2016, Felicity Irene Beale (the deceased) passed away, leaving a will dated 31 July 2016 (the will) and a codicil dated 7 August 2016. She was survived by her husband, Julian Beale, and her daughters Deborah Beale and Jennifer James.

The deceased’s will appointed the partner of one of her daughters, Christopher Jackson (the plaintiff), the husband of her other daughter, David James (the second defendant) and her accountant, Peter Clark, as executors.

The deceased’s will contained provisions directing that, following the payments of debts, expenses and specific gifts, and the establishment of a testamentary trust for the deceased’s husband, the residuary estate be divided as follows:

(a) As to 50%, to establish the Deborah Beale Testamentary Trust, of which her daughter Deborah Beale is the primary beneficiary and appointor, and the plaintiff and Deborah Beale are the trustees; and

(b) As to 50%, to establish the Jennifer James Testamentary Trust, of which her daughter Jennifer James (the first defendant) is the primary beneficiary and appointor, and the first and second defendants are trustees.

On 17 October 2016, the plaintiff obtained a Grant of Probate, with leave reserved to the second defendant and Mr Clark.

The inventory of assets and liabilities filed with the plaintiff’s application for probate listed the gross value of the estate at approximately $8,266,000, comprised of bank accounts, shares, jewellery, motor vehicles, traveller’s cheques, and a sliver of vacant land in Slovenia, with liabilities of approximately $20,000.

During the course of the administration, the defendants raised numerous issues concerning the administration of the estate by the plaintiff, predominantly relating to the production of documents in relation to or containing a perceived connection with the estate. Much of this correspondence has been exhibited to affidavits filed in this proceeding.[1]
[1]Examples of the documents requested by the defendants include any documents demonstrating the…

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.

Continue reading Jackson v James

Details

AGLC: Jackson v James [2023] VSC 100
Case: [2023] VSC 100
Decision Date: 6 March 2023

CaseChat Overview and Summary

Jackson v James was a case before the Supreme Court of Victoria where the executor of an estate sought to have the administration costs paid out of the estate. The case involved an executor, Jackson, who had been appointed by the deceased's will and sought to have his costs paid from the estate. The deceased's beneficiaries, represented by James, opposed the executor's costs being paid from the estate. The court was required to decide whether the executor's costs should be paid from the estate when there had been no determination on the merits of the dispute.

The court considered the relevant statutory provisions, including sections 24 of the Supreme Court Act 1986 and 36 of the Trustee Act 1958, as well as rule 63.26 of the Supreme Court (General Civil Procedure) Rules 2015. The court also referred to the decision in Wales v Wales, where it was held that executor's costs should not be paid from the estate when there had been no determination on the merits. The court found that the statutory provisions and the decision in Wales v Wales supported the proposition that executor's costs should not be paid from the estate when there had been no determination on the merits.

The court held that the executor's costs should not be paid from the estate when there had been no determination on the merits. The court found that the executor had not been successful in his application to have his costs paid from the estate. The court made no order as to costs.

Orders