O'Connor v James - [2019] VSCA 265

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0139

KYLIE MAREE O’CONNOR (in her capacity as litigation guardian for EMILY MAREE O’CONNOR, an infant)	Applicant
v
SHANDEL LEA JAMES	Respondent

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JUDGES:	TATE, KYROU and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 September 2019
DATE OF JUDGMENT:	20 November 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 265
JUDGMENT APPEALED FROM:	Re Wood [2018] VSC 597 (McMillan J)

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SUCCESSION LAW — Compromise of a probate proceeding — Application for approval of compromise on behalf of a minor — Minor a beneficiary under penultimate will — Minor objected to grant of probate for final will alleging that deceased lacked testamentary capacity — Terms of settlement executed prior to hearing of objection — Whether contested probate proceeding can be compromised where validity of the will in issue — Executors and other residuary beneficiary of penultimate will to be given notice of application for orders — Supreme Court (General Civil Procedure) Rules 2015 r 54.02(2)(c)(i) inappropriate where identity or authority of executor in issue — Dowling v St Vincent de Paul Society Victoria Inc [2003] VSC 454, applied — Supreme Court (General Civil Procedure) Rules 2015, r 15.08, r 54.01, r 54.02(2)(c)(i) — Trustee Act 1958, s 19(1)(f).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Rizzi	McKean Park Lawyers
For the Respondent	No appearance	No appearance
Amicus Curiae	Mr D Farrands

TATE JA
KYROU JA
EMERTON JA:

Introduction

The applicant seeks leave to appeal from a decision of a judge in the Trial Division dismissing her application for approval of an infant compromise in a contested probate proceeding.

The probate proceeding concerns the estate of Dennis Edward Wood, who died on 24 January 2017 aged 86 leaving a property at 17 Farnsworth Street, Eaglehawk (‘Eaglehawk property’) and a small sum of money in the bank.

The deceased’s last will is dated 29 June 2016 (‘2016 will’). The deceased’s penultimate will is dated 4 August 2009 (‘2009 will’). The applicant is the litigation guardian of a minor (‘Emily’) who is a beneficiary under the 2009 will but not the 2016 will. Emily is the grand-niece of the deceased.

The 2009 will appointed the deceased’s niece, Kathleen Kendall, and her husband, Gordon Kendall, as executors and trustees of his estate. The deceased left ‘any tools and trailers owned at the time of [his] death’ to Gordon Kendall and ‘any car that [he might] own at the time of [his] death’ to Kathleen Kendall. The deceased’s sister-in-law, Lillian Elsie Geff, was permitted to remain as sole occupant of the Eaglehawk property until her death or departure for other reasons.[1] Pursuant to the 2009 will, when the Eaglehawk property was sold, the remaining monies were to be distributed equally between Emily and another grand-niece, Alana Heaft.
[1]In fact, Lillian Geff pre-deceased the testator.

The 2016 will is in entirely different terms. It appoints the deceased’s ‘good friend’, the respondent, as his executor and leaves the entire estate to her,…

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: Kylie Maree O'Connor (in her capacity as litigation guardian for Emily Maree O'Connor, an infant) v Shandel Lea James [2019] VSCA 265
Case: [2019] VSCA 265
Decision Date: 20 November 2019

CaseChat Overview and Summary

The case of O'Connor v James involved a dispute over the validity of a will and the subsequent compromise of probate proceedings on behalf of a minor beneficiary. The dispute arose when the minor objected to the grant of probate for the deceased's final will, alleging that the deceased lacked testamentary capacity. The minor was a beneficiary under the deceased's penultimate will, and the dispute centred around the terms of a compromise agreement that was executed prior to the hearing of the objection. The court was tasked with determining whether a contested probate proceeding can be compromised where the validity of the will in issue is contested and whether the executors and other residuary beneficiaries of the penultimate will should be given notice of the application for orders.

The court considered whether the Supreme Court (General Civil Procedure) Rules 2015 r 54.02(2)(c)(i) were appropriate in circumstances where the identity or authority of the executor was in issue. The court also examined whether the minor, as a beneficiary under the penultimate will, should be given notice of the application for orders. In Dowling v St Vincent de Paul Society Victoria Inc, the court held that where the identity or authority of the executor is in issue, r 54.02(2)(c)(i) is inappropriate. The court applied this principle to the current case and held that the executors and other residuary beneficiaries of the penultimate will should be given notice of the application for orders. The court also considered the Trustee Act 1958, s 19(1)(f) which provides that the court may approve a compromise if it is just and equitable to do so.

The court ultimately held that the compromise of the probate proceeding was appropriate as it was in the best interests of the minor beneficiary. The court found that the executors and other residuary beneficiaries of the penultimate will should be given notice of the application for orders, and that r 54.02(2)(c)(i) was inappropriate where the identity or authority of the executor was in issue. The court approved the compromise agreement and ordered that the final will be admitted to probate. The court also ordered that the executors and other residuary beneficiaries of the penultimate will be given notice of the application for orders.

Orders