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Jageurs v Downing (No 2)

Jageurs v Downing (No 2)

Case [2015] VSC 509 25 September 2015

Wills & Estates

Costs

Succession Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROBATE LIST

S PRB 2014 17341

IN THE MATTER of the will and informal codicil of DANIEL JOSEPH JAGEURS

MICHAEL DAVID JAGEURS (who is sued as executor and trustee of the estate of DANIEL JOSEPH JAGEURS)	Plaintiff
v
PATRICIA MARGARET DOWNING	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 September 2015
DATE OF RULING:	25 September 2015
CASE MAY BE CITED AS:	Jageurs v Downing (No 2)
MEDIUM NEUTRAL CITATION:	[2015] VSC 509

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WILLS & ESTATES — Where substantial delay in applying for grant of probate of will and informal document as a codicil — Application to propound informal document refused — Where lack of communication with other sibling beneficiaries — Whether executor should be passed over as the executor of the estate.

COSTS — Whether usual rules as to probate litigation apply — Whether costs of unsuccessful party should be assessed on an indemnity basis — Hall v Carney (No 2) [2012] SASCFC 105 — Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M McKenzie	A. B. Natoli Pty Ltd
For the Defendant	Mr S Newton	Suzanne Jones Lawyers
For the non-party, Annette Hope	Ms U Stanisich	David Gibbs & Associates
For the non-party, John Jageurs	Mr G Baker	Wisewould Mahony

HER HONOUR:

Introduction

The plaintiff (‘Michael’) is the executor of the estate of his late father, Joseph Jageurs (‘the deceased’). By application filed 13 November 2014, the plaintiff sought a grant of probate of his father’s will dated 5 April 2007 and an informal document dated 20 May 2010, pursuant to s 9 of the Wills Act 1997 (‘the Act’).

The defendant (‘Patricia’) successfully opposed the application for the informal document to be admitted as a codicil to the 2007 will.[1]
[1]Jageurs v Downing [2015] VSC 432 (21 August 2015) [135].

In the reasons for judgment, I indicated that I would hear the parties as to the costs of the proceeding and, subject to further submissions, my preliminary view was that the entitlements of Patricia and Annette under the 2007 will should not be affected in any way.[2]
[2]Ibid [137].

I also referred Michael’s failure to administer the estate of the deceased in a timely manner and to communicate effectively with Patricia, which raised the question of whether Michael was the appropriate person to be propounding the 2007 will, notwithstanding he is named as the executor in it.[3]
[3]Ibid [136].

On 11 September 2015, the parties to the proceeding and their two siblings, John Jageurs (‘John’) and Annette Hope (‘Annette’), appeared and made submissions as to whether Michael should remain as the executor of the estate the costs of this proceeding.

Should Michael remain as the executor of the estate of the deceased?

Of the four siblings, only Patricia sought that Michael to be passed over as the executor of the estate. The remaining siblings pointed out 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 Jageurs v Downing (No 2)

Details

AGLC: Jageurs v Downing (No 2) [2015] VSC 509
Case: [2015] VSC 509
Decision Date: 25 September 2015

CaseChat Overview and Summary

The case of Jageurs v Downing (No 2) involved a dispute over the administration of an estate. The applicants sought to have an informal document accepted as a codicil to a deceased person's will. The respondent, who was the executor of the estate, opposed the application on the grounds that the applicants had delayed in making the application and had not communicated with other siblings who were beneficiaries of the estate. The case was heard in the Supreme Court of South Australia.

The primary legal issue before the court was whether the informal document could be accepted as a codicil to the will. The court also considered whether the executor should be passed over as the executor of the estate due to the lack of communication with other siblings. Additionally, the court examined whether the usual rules as to probate litigation apply and whether the costs of the unsuccessful party should be assessed on an indemnity basis.

The court found that the informal document could not be accepted as a codicil to the will due to the substantial delay in making the application and the lack of communication with other siblings. The court held that the executor should not be passed over as the executor of the estate as there was no evidence of any wrongdoing on their part. The court also held that the usual rules as to probate litigation applied and that the costs of the unsuccessful party should be assessed on a standard basis.

In conclusion, the court dismissed the application to propound the informal document as a codicil to the will. The executor was not passed over as the executor of the estate, and the costs of the unsuccessful party were assessed on a standard basis. The court's decision highlights the importance of timely and transparent communication with all beneficiaries in the administration of an estate.

Orders