O'Connor v James - [2023] VSCA 274

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0052

KYLIE MAREE O’CONNOR (IN HER CAPACITY AS LITIGATION GUARDIAN FOR EMILY MAREE O’CONNOR, AN INFANT)	Applicant
V
SHANDEL LEA JAMES (AS EXECUTOR OF THE ESTATE OF DENNIS EDWARD WOOD, DECEASED)	Respondent

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JUDGES:	NIALL, WHELAN and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	1 November 2023
DATE OF JUDGMENT:	9 November 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 274
JUDGMENT APPEALED FROM:	[2023] VSC 163 (McMillan J)

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PROBATE – Approval of compromise – Whether judge correct to refuse to approve infant compromise in relation to deceased estate – Approval turned on sole question of whether settlement benefited infant – Theoretical doubt about whether agreement would be performed did not preclude finding it in infant’s best interests – Approval of settlement has no effect on different question of validity of will – Critical focus on orders sought – Leave to appeal granted – Appeal allowed.

Supreme Court (General Civil Procedure) Rules 2015, r 15.08.

Dowling v St Vincent De Paul Society of Victoria Inc [2003] VSC 454, considered.

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Counsel
Applicant:		Mr J Rizzi with Mr PD Reynolds
Respondent:		No appearance
Solicitors
Applicant:	McKean Park
Respondent:	O’Farrell Robertson McMahon

NIALL JA
WHELAN JA
KAYE JA:

The issue in this application for leave to appeal is whether a judge of the Trial Division was correct to refuse to approve an infant compromise in relation to a deceased estate. The settlement was reached in October 2017, arose in the context of a very modest estate and was clearly for the benefit of the infant, but approval was refused by the judge on two occasions. The first refusal was upheld by the Court of Appeal and the second refusal is the subject of the present application.
The difficulty has arisen because of a perceived tension between expediency and the principles that apply to the administration of estates which have a broader public focus than that which applies to private litigation generally. As will appear, there is in fact no tension. The compromise should have been approved. At the conclusion of argument we granted leave to appeal, allowed the appeal and approved the infant compromise. What follows are our reasons for doing so.

The facts

Dennis Edward Wood (‘the deceased’) died on 24 January 2017 aged 86, leaving a property at 17 Farnsworth Street, Eaglehawk (‘the Eaglehawk property’) and a small sum of money in the bank.
The deceased’s last will dated 29 June 2016 (‘the 2016 will’) appoints Shandel Lea James (‘the respondent’) as his executor and devises and bequeaths his estate to her, with a gift over to her daughter. The respondent was a neighbour of the deceased.
In 2009, the deceased made his penultimate will (‘the 2009 will’). The 2009 will appoints the deceased’s niece, Kathleen Kendall, and her husband, Gordon Kendall, as the executors and trustees of his estate. Under the 2009 will, the residue of the estate passes to Emily O’Connor (‘Emily’), a great-niece of 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 O'Connor v James

Details

AGLC: O'Connor v James [2023] VSCA 274
Case: [2023] VSCA 274
Decision Date: 9 November 2023

CaseChat Overview and Summary

In the case of O'Connor v James, the dispute before the court involved a compromise regarding a deceased estate, where the infant beneficiary, O'Connor, was the subject of the settlement. The matter was brought before the court for approval of the compromise under the Supreme Court (General Civil Procedure) Rules 2015, r 15.08. The central legal issue was whether the judge correctly exercised their discretion to refuse approval of the compromise, focusing on whether the settlement was in the best interests of the infant beneficiary.

The court examined the basis for the judge's refusal to approve the compromise, which hinged on the question of whether the settlement benefited the infant. The court found that the judge's theoretical doubt about whether the agreement would be performed did not preclude a finding that the settlement was in the infant’s best interests. The court held that the approval of the settlement did not affect the different question of the validity of the will, thereby clarifying that the focus was on the orders sought. The court granted leave to appeal and allowed the appeal, highlighting that the judge's decision to refuse approval was flawed as it did not adequately consider whether the settlement was in the infant's best interests.

Consequently, the court directed that the compromise be approved as it was in the best interests of the infant. The court's decision underscored the importance of distinguishing between the approval of the compromise and the validity of the will, and emphasised that the approval of a compromise rests on whether it benefits the infant, rather than on theoretical doubts about performance.

Orders