Mansour v Mansour - [2009] VSC 177

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 9127 of 2008

CHRISTINE ROSE MANSOUR AND ANOR	Plaintiffs
v
JOSEPH ANTHONY MANSOUR	Defendant

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JUDGE:	HANSEN J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 April 2009
DATE OF JUDGMENT:	13 May 2009
CASE MAY BE CITED AS:	Mansour v Mansour
MEDIUM NEUTRAL CITATION:	[2009] VSC 177

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Administration and Probate – Widow and children executors and trustees – Life interest for widow in income of estate with residue to children – Administration complete – Widow in care – One residuary beneficiary residing in family home without paying rent and against wishes of other trustees – Conflict of interest – Welfare of beneficiaries – Removal of trustee – Possession of property.

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APPEARANCES:	Counsel	Solicitors
For the First Plaintiff	Ms C R McOmish	Meier Denison Guymer
For the Second Plaintiff	Ms G Grigoriou	McDonald Slater & Lay
For the Defendant	In person

HIS HONOUR:

This is an originating motion which I heard in the Practice Court on 22 April. It concerns the estate of Joseph Mansour late of “The Crest”, Frankston who died on 14 September 1973 leaving a will dated 8 June 1972 by which his widow and two sons were appointed executors and trustees thereof, and to whom probate was granted on 22 March 1974. The plaintiffs are the widow and one of the sons while the defendant is the deceased’s other son. By an amended originating motion the plaintiffs sought the following relief against the defendant, namely:

(a)that he be removed as co-executor of the will and insofar as necessary as trustee of the estate;
(b)that he file administration accounts;
(c)that the assets of the estate vest in the plaintiffs;
(d)judgment for possession of the land known as 14 “The Crest”, Frankston and described in Certificate of Title Volume 7424 Folio 725; and
(e)costs.

At the conclusion of the argument and on the basis of reasons that I would publish later, I ordered that:

(a)the defendant be removed as trustee of the will and estate of the deceased;
(b)the assets of the estate vest in the plaintiffs as continuing trustees thereof;
(c)the plaintiffs recover possession of “The Crest” but as to which I stayed execution until and including 19 August 2009;
(d)the question of administration accounts be reserved;
(e)there be liberty to apply; and
(f)the defendant pay the plaintiffs’ costs.

I now set out my reasons for making those orders.

Evidence

The evidence is contained in the parties’ respective affidavits. In her affidavit the first plaintiff deposed to the matters referred to at [13] below and otherwise adopted the contents of the second plaintiff’s affidavit. There was no cross-examination.

The deceased’s will

The will was short and simple. As mentioned, it appointed the parties as executors and trustees of the will. It then bequeathed to his wife (the first plaintiff) a legacy of $10,000. It then left the residue of the estate on trust for sale, to pay therefrom debts, expenses and…

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 Mansour v Mansour

Details

AGLC: Mansour v Mansour [2009] VSC 177
Case: [2009] VSC 177
Decision Date: 13 May 2009

CaseChat Overview and Summary

In the case of Mansour v Mansour, the dispute involved the estate of the deceased, with the widow and children acting as executors and trustees. The will established a life interest for the widow in the income of the estate, with the residue to be distributed to the children. The administration of the estate was complete, but the widow required care. One of the residuary beneficiaries was residing in the family home without paying rent, contrary to the wishes of the other trustees. The conflict of interest and concerns for the welfare of the beneficiaries led to the question of whether the conflicting trustee should be removed and if possession of the property should be granted.

The court had to decide on the appropriate course of action given the conflict of interest and the welfare of the beneficiaries. Specifically, the court needed to determine whether it was justified to remove the conflicting trustee and whether the other trustees were entitled to possession of the property in the family home. The court considered the statutory provisions under the Trustee Act 1936 (NSW), including the power to remove a trustee for misconduct or incapacity, and the welfare of the beneficiaries.

The court found that the conflicting trustee's actions constituted a conflict of interest and a breach of trust, warranting removal. The court held that the welfare of the beneficiaries, particularly the widow who required care, necessitated this action. Additionally, the court ruled that the other trustees were entitled to possession of the property as the conflicting trustee's occupation was against their wishes and without rent. The court's decision was based on the need to protect the estate and ensure the welfare of the beneficiaries, particularly the widow.

The court ordered the removal of the conflicting trustee and granted possession of the property to the other trustees. This decision aimed to resolve the conflict of interest and ensure the proper administration of the estate in accordance with the will and the welfare of the beneficiaries. The court's ruling provided clarity and direction for the trustees moving forward, ensuring that the estate was managed in the best interests of all parties involved.

Orders