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Mataska v Browne

Mataska v Browne

Case [2013] VSC 62 22 February 2013

Standing

Adverse Possession

Statutory Construction

Succession Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
PROBATE LIST

No. 4822 of 2012

ANTONINA MATASKA	Plaintiff
v
TRUDI BROWNE (who is sued as executrix of the Estate of JANINA NOWACZEK, deceased)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 October 2012
DATE OF JUDGMENT:	22 February 2013
CASE MAY BE CITED AS:	Mataska v Browne
MEDIUM NEUTRAL CITATION:	[2019] VSC 62

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ADMINISTRATION AND PROBATE – Application for limited grant – Application to pass over executrix – Due and proper administration of estate – Standing to apply for limited grant – Standing to apply to pass over executrix – Whether contingent interest pursuant to Part IV of Administration and Probate Act 1958 sufficient to support standing – Testatrix leaving estate to sole beneficiary – Largest asset passing by survivorship to sole beneficiary

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	S Newton	Clark Toop & Taylor
For the Defendant	R B Phillips	Slater & Gordon

HER HONOUR:

Introduction

By originating motion filed 22 August 2012, the plaintiff seeks the following orders:[1]

a) a limited grant of letters of administration with the will annexed of the estate of Janina Nowaczek (‘the deceased’);

b) that the defendant be passed over as the executor of the estate of deceased; and

c) a declaration that the defendant holds the property situate and known as 2/23 Kyle Road, Altona North (‘the Altona North property’) on trust for the estate of the deceased.

[1] The plaintiff also sought the removal of the defendant as executor pursuant to s 34 of the Administration and Probate Act 1958. This was not pursued at the hearing, as probate of the will had not been granted.

By summons filed 27 September 2012, the defendant seeks to dismiss the plaintiff’s proceeding as disclosing no cause of action, pursuant to r 23.01(1)(a) of the Supreme Court (General Civil Procedure) Rules 2005, or, alternatively, on the ground that it has no real prospect of success, pursuant to s 62 or s 63 of the Civil Procedure Act 2010.

Background

The deceased died on 2 May 2012, aged 89 years. She is survived by her two adult children, the plaintiff and the defendant.

At the age of 81 years, the deceased made a will dated 13 April 2004 (‘the 2004 will’),[2] which appointed her two children as her executrices and left her estate to them equally. The 2004 will was drawn by solicitors, Secombs of Footscray, under the reference ‘Mr Spillane’.
[2]Exhibit AM2 to the affidavit of the plaintiff sworn 21 August 2012 (‘the plaintiff’s affidavit’).

At the age of 82 years, the deceased executed an enduring power of attorney on 17 March 2005,[3] by which she appointed both the plaintiff and the defendant as her attorneys. The power of attorney was prepared by Secombs of Footscray. The witnesses to the enduring power of attorney, a doctor of Williamstown Hospital and a solicitor, ‘John Patrick Spillane’, stated that, at the time…

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 Mataska v Browne

Details

AGLC: Mataska v Browne [2013] VSC 62
Case: [2013] VSC 62
Decision Date: 22 February 2013

CaseChat Overview and Summary

In the matter of Mataska v Browne, the deceased left a will in which she left her estate to a sole beneficiary. However, the largest asset of the estate passed by survivorship to a different beneficiary. The executrix of the estate applied for a limited grant of probate, but the sole beneficiary sought to have the executrix passed over. The dispute involved the standing of the sole beneficiary to apply for a limited grant of probate and to pass over the executrix. The court was required to determine whether a contingent interest pursuant to Part IV of the Administration and Probate Act 1958 was sufficient to support the standing of the sole beneficiary to apply for a limited grant of probate and to pass over the executrix.

The court considered the relevant provisions of the Administration and Probate Act 1958 and found that the sole beneficiary had a contingent interest in the estate. However, the court held that a contingent interest was not sufficient to support standing to apply for a limited grant of probate or to pass over the executtrix. The court held that the sole beneficiary needed to demonstrate a present, vested interest in the estate in order to have standing. The court also held that the sole beneficiary's interest in the estate was not sufficient to establish a failure of administration on the part of the executrix. The court found that the executrix had properly administered the estate and that there was no ground for passing her over.

Accordingly, the court dismissed the sole beneficiary's application for a limited grant of probate and to pass over the executrix. The court held that the sole beneficiary did not have standing to apply for a limited grant of probate or to pass over the executrix, and that the executrix had properly administered the estate. The court made no orders in favour of the sole beneficiary and the executrix was permitted to continue with the administration of the estate.

Orders