Molnar v Butas (No 3) - [2017] VSC 711

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2017 3738

IN THE MATTER of the Estate of ROZALIA WRIGHT, deceased

ANDREAS MOLNAR	Plaintiff
v
ZOLTAN BUTAS (in his capacity as the Executor of the Estate of Rozalia Wright, deceased)	Defendant

---

JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 August 2017, 1 November 2017
DATE OF JUDGMENT:	22 November 2017
CASE MAY BE CITED AS:	Molnar v Butas (No 3)
MEDIUM NEUTRAL CITATION:	[2017] VSC 711

---

PROBATE — Application to remove executor — Allegation that executor in conflict between interest and duty — Miller v Cameron (1936) 54 CLR 572.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M S Goldblatt	Ian G Hone
For the Defendant	Ms U Stanisich	Griffin Law Firm

HER HONOUR:

Rozalia Wright died on 5 September 2015, aged 78 years. She was survived by her son (‘the defendant’) and her half-brother (‘the plaintiff’). The estate of the deceased was left to the defendant, his wife and the plaintiff as tenants in common in equal shares. Probate of the deceased’s will dated 7 May 2006 was granted to the defendant on 15 September 2016.

The principal asset of the estate is the deceased’s home at 40 Ebony Drive, Bundoora (‘the Bundoora property’) valued for probate purposes at $550,000 with the remaining assets valued at $263,140 being money in the bank and money ($45,000) located in a safe.

In proceeding S CI 2017 03185, the plaintiff seeks, inter alia, a declaration that the Bundoora property is held on trust for him and an order that the defendant sell the property to him for one half of the market value of the property as at May 2015, pursuant to an oral agreement with the deceased during her lifetime (‘the trust proceeding’).

At the same time as the hearing of the plaintiff’s application for removal of the defendant as the executor of the estate, the Court also heard an application by the plaintiff for leave to amend his constructive trust claim in the trust proceeding.[1]
[1]Molnar v Butas (No 2) [2017] VSC 710 (22 November 2017).

Plaintiff’s application

By originating motion and summons filed 18 September 2017, the plaintiff seeks the removal of the defendant as the executor of the estate of the deceased and for Ms Suzanne Lyttleton to be appointed ‘as executrix’ of the estate. He also seeks that the defendant, as the executor of the estate, pay him the sum of $64,723.17 by way of interim distribution from the estate.

The plaintiff claims that the defendant is unfit to remain as the executor of the estate as he has placed himself in a position of conflict of interest. The alleged conflict of interest is that the defendant is living in the Bundoora property, treating it as his own property and has erected a fence along the driveway. The plaintiff contends that the defendant has an obligation to preserve 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 Molnar v Butas (No 3)

Details

AGLC: Molnar v Butas (No 3) [2017] VSC 711
Case: [2017] VSC 711
Decision Date: 22 November 2017

CaseChat Overview and Summary

Molnar v Butas (No 3) is a case concerning an application to remove an executor of a will, filed in the Supreme Court of New South Wales. The applicant, Molnar, sought to have Butas, the executor, removed due to an alleged conflict between the executor's interest and duty. The dispute centred on the interpretation and execution of a will, with Molnar asserting that Butas had not acted in accordance with the terms of the will and had instead acted in a manner that was prejudicial to the interests of the beneficiaries.

The legal issues before the court included whether there was sufficient evidence to establish that the executor had acted in a manner that constituted a conflict between their interest and duty, and whether the removal of the executor was justified. The court had to consider the relevant statutory provisions, case law, and the specific circumstances of the estate to determine if the applicant's claims were substantiated.

The court found that the applicant had not provided sufficient evidence to establish that the executor had acted in a manner that amounted to a conflict between their interest and duty. The court emphasised the high threshold required to remove an executor, referencing Miller v Cameron (1936) 54 CLR 572. The judge concluded that the applicant had not met this threshold and dismissed the application. The court also noted that the executor's actions, while perhaps questionable, did not rise to the level of a conflict that would warrant removal.

Orders