Jortikka v Haukka - [2023] VSC 20

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2020 01951

IN THE MATTER of the Will and Estate of MAUNU TUOMAS HAUKKA

- and –

IN THE MATTER of s 34 of the Administration and Probate Act 1958

BETWEEN:

ANNELI MARJAANA JORTIKKA	Plaintiff
v
JASMINA ANDREA HAUKKA	Defendant

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2022
DATE OF JUDGMENT:	3 February 2023
CASE MAY BE CITED AS:	Jortikka v Haukka
MEDIUM NEUTRAL CITATION:	[2023] VSC 20

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ADMINISTRATION AND PROBATE – Application under s 34 of the Administration and Probate Act 1958 (Vic) for removal of executor – Whether defendant unfit to continue as executor – Paramount consideration being the welfare of the beneficiaries – Dimos v Skaftouros (2004) 9 VR 584 referred to and applied – Protection of beneficiaries of estate – Unresponsive and cavalier approach of defendant to finalising the administration of the estate – Defendant removed and plaintiff to remain as executor.

ADMINISTRATION AND PROBATE – Claim for mesne profits for defendant’s occupation of estate property – Defendant and plaintiff are the daughters of the deceased and co-executors – Plaintiff and defendant beneficiaries of the residuary estate in equal shares – Protracted negotiations between the parties for the defendant’s purchase of the property failed – Defendant occupied estate property prior to the death of the deceased and status quo maintained – Maher v Kuperholz [2022] VSC 224 and Byrnes v Kendle (2011) 243 CLR 253 referred to – Occupation rent to be paid by defendant for period she was in occupation without the consent and acquiescence of the plaintiff.

ADMINISTRATION AND PROBATE – Application under s 65 of the Administration and Probate Act 1958 (Vic) – Executor’s commission – Pains and troubles – Where executor applying was legally represented for the entire administration of the estate – Defendant’s failure to make arrangements for the monitoring and maintenance of the estate property and failure to engage with correspondence regarding the administration of the estate – Plaintiff undertook substantial work to clear out and refurbish estate property – Executor’s commission of 3.5% awarded.

ADMINSTRATION AND PROBATE – Application for the defendant’s share in the residuary estate be adjusted to account to the estate for costs incurred by reason of the delay in the administration of the estate – Claim that defendant’s share in the estate to be adjusted to account for utilities and other outgoings, legal expenses and for storage and removal costs of defendant’s chattels from the estate’s property – Defendant’s share in residuary estate to be adjusted to account for the removal costs of her belongings from the estate property and their storage and for utilities during her occupation of the estate property.

ADMINISTRATION AND PROBATE – Claim for the defendant’s share in the residuary estate to be adjusted to account for any capital gains tax or land tax assessed and for any depreciation in the value of the estate…

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 Jortikka v Haukka

Details

AGLC: Jortikka v Haukka [2023] VSC 20
Case: [2023] VSC 20
Decision Date: 3 February 2023

CaseChat Overview and Summary

Jortikka v Haukka involved a dispute between the daughters of a deceased person, who were also the co-executors of the estate, over the administration and division of the estate. The case was heard in the Supreme Court of Victoria. The primary issue was whether the defendant, Haukka, was fit to continue as an executor of the estate, given her unresponsive and cavalier attitude towards finalising the estate's administration. The court also considered whether Haukka should be held liable for occupation rent for the period she lived in the estate's property without permission, as well as for her share of the costs incurred due to delays in the estate's administration. The court was further tasked with determining the appropriate executor's commission and whether Haukka's share of the estate should be adjusted to account for certain expenses and taxes.

The court found that Haukka's conduct was indeed unfit for her role as an executor, and she was removed from her position, with Jortikka remaining as the executor. The court emphasised the paramount consideration of the welfare of the beneficiaries, referencing Dimos v Skaftouros. Haukka was held liable for occupation rent for the period she resided in the estate's property without consent, following the principles in Maher v Kuperholz and Byrnes v Kendle. The court awarded an executor's commission of 3.5% to Jortikka, considering the substantial work she undertook in clearing and refurbishing the property. Haukka's share in the estate was adjusted to account for the removal costs of her belongings and utilities during her occupation. The court ruled that the estate would bear the capital gains tax, while Haukka would cover the land tax from her share of the estate.

The final orders included the removal of Haukka as an executor, her liability for occupation rent, the executor's commission awarded to Jortikka, and the adjustment of Haukka's share in the estate to account for specific costs and taxes.

Orders