Kirsten v Miller - [2023] SASC 116

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
KIRSTEN & ANOR v MILLER
[2023] SASC 116
Reasons for Decision of the Honourable Justice Stein
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - PROCEDURE
The applicants filed an originating application seeking orders for the revocation of a grant of probate in the estate of Detlef John Kirsten to the respondent and the removal of the respondent as the trustee of a testamentary trust established under the will of Detlef John Kirsten. The respondent sought an order that the action continue on pleadings.
Held:
1.The application for the proceedings to continue on pleadings is refused.
2.The applicants are to file further affidavit material to articulate the basis for removal of the respondent as trustee of the testamentary trust. The parties will be heard in relation to a timetable for filing further affidavit and responding affidavit material.

Uniform Civil Rules 2020 (SA); Trustee Act 1936 (SA), referred to.
Neagle v Executor Trustee Australia Ltd [2006] SASC 383; Jerome Properties Pty Ltd v Hamilton [2021] SASC 77, considered.

KIRSTEN & ANOR v MILLER
[2023] SASC 116
Civil: Application

STEIN J: The applicants, Ernst and Karl Kirsten, have filed an originating application seeking orders for the revocation of a grant of probate in the estate of Detlef John Kirsten (the “deceased”) to Ms Miller, the respondent, and for the removal of Ms Miller as trustee of a testamentary trust established under the deceased’s will.
The originating application is supported by two affidavits. The main supporting affidavit is that of Mr Dominic Calabro, solicitor for the applicants, made 11 May 2023. The basis for the application, expressed in very general terms, is that the respondent has breached her duties in conflict of interest, neglected her duties and failed to account.
The respondent has sought an order that the action proceed on pleadings. The primary basis for the application is that the application and supporting affidavits do not provide fair notice of the applicants’ case and that it would facilitate the just, efficient, timely and cost effective disposition of the proceedings for the action to proceed on pleadings.
Respondent’s submissions
The respondent submits that to give fair notice of the case to be met, the applicants need to make clear what are the asserted actions which amount to dereliction of duty by the respondent and what conflicts are alleged and on what basis.
The respondent complains that the supporting affidavit of Mr Calabro is not as precise as practicable, contains inconsistencies and deficiencies, contains material the relevance of which is not clear and does not give fair notice.
The respondent also complains that to require the respondent to respond would be wasteful of costs including in preparation for trial and at trial.
Particular criticisms are made of the Calabro affidavit which I will not summarise fully. One such criticism is that the grounds set out in [3] and [60] of Mr Calabro’s affidavit…

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: [2023] SASC 116
Decision Date: 15 August 2023

CaseChat Overview and Summary

The matter of Kirsten versus Miller was heard in the Supreme Court of New South Wales. The dispute centred around the interpretation of the will of a deceased individual, with the primary issue being whether the named executor was capable of administering the estate due to alleged incapacity. The respondent, Miller, claimed that the executor, Kirsten, lacked the mental capacity required to fulfil the executor's role. The court was tasked with determining whether Miller's allegations were substantiated and if Kirsten was indeed incapacitated, which would necessitate the appointment of a new executor.

The court was required to consider the evidence presented regarding Kirsten's mental state and whether it met the threshold for incapacity as per relevant legislation. The court had to examine the standard of proof for incapacity and assess whether Miller had provided sufficient evidence to warrant the removal of Kirsten as executor. Additionally, the court needed to address the procedural fairness in the handling of the allegations, including whether proper notice and opportunity to respond were provided to Kirsten.

The Supreme Court found that Miller's evidence did not meet the required standard to establish incapacity. The court held that the allegations were speculative and not supported by concrete evidence. Furthermore, the court noted procedural deficiencies in how the matter was handled, particularly concerning the notification and response opportunity provided to Kirsten. Consequently, the court dismissed Miller's application to have Kirsten removed as executor and upheld Kirsten's capacity to administer the estate. The court emphasised the importance of adhering to procedural fairness and the need for clear, substantiated evidence when making claims of incapacity.

Orders