Nikoloski v Rodney George Goodall as Executor and Trustee of the Estate of Naume Nikolski
[2013] WASC 179
•13 MAY 2013
NIKOLOSKI -v- RODNEY GEORGE GOODALL as Executor and Trustee of the Estate of Naume Nikolski [2013] WASC 179
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 179 | |
| 13/05/2013 | |||
| Case No: | CIV:1477/2012 | 19 MARCH 2013 | |
| Coram: | EM HEENAN J | 19/03/13 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed No order as to costs | ||
| C | |||
| PDF Version |
| Parties: | KATRINA MARY NIKOLOSKI RODNEY GEORGE GOODALL as Executor and Trustee of the Estate of Naume Nikolski DANIEL DI SCERNI |
Catchwords: | Application under s 6 Inheritance (Family and Dependants Provision) Act 1972 (WA) Beneficiary sui juris Application of the rule in Saunders v Vautier |
Legislation: | Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6 |
Case References: | Phillips v Price [2007] WASC 54 Saunders v Vautier (1841) Cr & Ph 240; (1841) 49 ER 262 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
RODNEY GEORGE GOODALL as Executor and Trustee of the Estate of Naume Nikolski
First Defendant
DANIEL DI SCERNI
Second Defendant
Catchwords:
Application under s 6 Inheritance (Family and Dependants Provision) Act 1972 (WA) - Beneficiary sui juris - Application of the rule in Saunders v Vautier
Legislation:
Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6
(Page 2)
Result:
Application dismissed
No order as to costs
Category: C
Representation:
Counsel:
Plaintiff : Mr M A Tedeschi
First Defendant : In person
Second Defendant : Mr D L Jones
Solicitors:
Plaintiff : Slater & Gordon
First Defendant : In person
Second Defendant : Blatchfords Lawyers
Case(s) referred to in judgment(s):
Phillips v Price [2007] WASC 54
Saunders v Vautier (1841) Cr & Ph 240; (1841) 49 ER 262
(Page 3)
1 EM HEENAN J: These proceedings, commenced by originating summons filed 22 March 2012 advance a claim under s 6 of the Inheritance (Family and Dependants Provision) Act 1972 (WA) (Inheritance Act). The plaintiff, Katrina May Nikoloski, sought orders that the will of her father, Naume Nikoloski, late of 95 Collier Road, Embleton in the State of Western Australia, did not make adequate provision for her maintenance, advancement and support and that adequate provision be made to her from his estate.
2 The late Naume Nikoloski died leaving a will dated 8 August 2010 under which he left the sum of $20,000 to his daughter, the plaintiff, and the balance of his estate to his grandson, the second defendant, Daniel Di Scerni, the only child of the plaintiff, to be held on trust until he attained 23 years of age.
3 The will appointed Rodney George Goodall, the first defendant, as the sole executor and trustee. He obtained probate on 26 December 2011 and commenced administration of the estate.
4 The plaintiff had agreed with the second defendant to divide, equally between them both, his share of the estate if it could be paid to him. However, the executor took the view that he could not distribute until the second defendant turned 23 years of age.
5 The matter first came on for hearing on 15 March 2013. During the hearing, it became apparent that the second defendant, who was an infant when the proceedings commenced and who had been represented by a guardian ad litem during the initial proceedings, had since turned 18 years of age. His position was then that of an adult beneficiary having an absolute and vested interest in the balance of the residuary estate.
6 Under the rule in Saunders v Vautier (1841) Cr & Ph 240; (1841) 49 ER 262 an adult beneficiary who has an absolute, vested and indefeasible interest in trust property may put an end to a trust by directing the trustee to transfer the trust property to him or his nominee, notwithstanding any directions to the contrary in the trust instrument. The rule in Saunders v Vautier will operate to override a testator's intention to prevent a beneficiary from taking his share until reaching an age beyond the age of majority.
7 This rule was applied by Hasluck J in Phillips v Price [2007] WASC 54 [129] - [130] who noted :
(Page 4)
- In the exercise of any power or discretion which is confided to him, a trustee is bound and entitled to use his own judgment and ordinarily is not obliged to consult the wishes or accede to the importunities of the beneficiaries.
However, although the beneficiaries cannot, in general, control the trustees while the trust remains in being, they can, if sui juris and together entitled to the whole beneficial interest, put an end to the trust and direct the trustees to hand over the trust property as they direct; and this is so even if the trust deed contains express provisions for the determination of the trust. In other words, if an accumulation is directed exclusively for the benefit of a beneficiary, the moment he is sui juris he may put an end to it and demand the property.
8 Accordingly, this rule could operate in this present case as the second defendant was in the position of a beneficiary who was ascertained, sui juris and could consent and who held a present interest in the trust estate. It became questionable whether there was any utility in proceeding with the plaintiff's claim in view of the agreement between her and her son to share his interest. Under these circumstances, it was open to the second defendant to put an end to the trust by demanding that the first defendant transfer the interest in the estate to himself immediately, notwithstanding the direction to the contrary in the will.
9 The matter was then adjourned to 19 March 2013 so that the parties could confer as to the appropriate course to take.
10 As a result of the agreement which has been reached between the parties, the proceedings which are the subject of the action listed for hearing today, the application by Katrina Nikoloski under the Inheritance Act 1972 (WA) will be dismissed. There will be no order as to costs of those proceedings.
11 By consent, the parties have agreed to enlarge the relief which may be ordered in these proceedings to concern directions regarding the administration of the estate of the deceased and with that consent, and by the further consent of the parties, there will be further orders as follows:
(1) Within 14 days the first defendant do pay to the second defendant or his solicitor, Blatchfords Lawyers, Level 1 Irwin Chambers, 16 Irwin Street, Perth, by bank cheque the balance of moneys comprising the entire residuary estate of the deceased of Naume Nikoloski, held in the National Bank (accounts numbered), after making sufficient retention to meet existing or anticipated estate liabilities and any of the remuneration to which the first defendant
- may be entitled as trustee for the administration of the estate of the deceased and then to account to the second defendant for any remaining surplus of the trust estate.
- (2) Within 28 days the first defendant do file and serve on all parties any application for executor's commission supported by affidavit by himself including the final accounts of the estate.
(3) There be liberty to apply.
12 I have not dealt with the question of the quantum of the retention from the trust estate because, as I have said, there is no evidence before me which would allow the court to make a determination of what that quantum should be. Nevertheless, the trustee is entitled to make a retention and it is part of his fiduciary duties as administrator and trustee to make an honest and prudent estimate of the maximum needed to meet these anticipated liabilities together with a small margin for safety.
13 It will be for Mr Goodall to make that estimate and he has indicated that he will do so in conjunction with the solicitors for the second defendant. He has also raised the question of whether or not he is entitled to demand a deed of release from the second defendant and I have indicated that that is a matter for negotiation, that is, the court cannot order one, nor that he can insist upon one.