Re Aitken; Maier v Hearne - [2020] VSC 432

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2019 04342

IN THE MATTER of an application pursuant to rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 for determination of questions arising in the administration of the estate

-and-

IN THE MATTER of the Will and Estate of MAVIS VIOLET AITKEN, deceased

MARK ALBERT MAIER (as administrator of the estate of MAVIS VIOLET AITKEN, deceased)	Plaintiff
v
CATHERINE MELISSA HEARNE	First Defendant
v
NICHOLAS GIASOUMI (as trustee of the bankrupt estate of PATRICIA AITKEN-WELSH)	Second Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	15 July 2020
CASE MAY BE CITED AS:	Re Aitken; Maier v Hearne
MEDIUM NEUTRAL CITATION:	[2020] VSC 432

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WILLS AND ESTATES — Application to bar claims against the estate — Claims currently vested in trustee in bankruptcy — Trustee does not intend to pursue claims — Claims not instituted by bankrupt personally — Administration and Probate Act 1958 (Vic) s 30; Bankruptcy Act 1966 (Cth) s 58(1)(b).

COSTS — Costs of applications contemplated by terms of settlement — Whether costs claimed reasonable and proportionate to the issues in dispute — Civil Procedure Act 2010 s 24.

COSTS — Costs of investigation into alleged claims against the estate — Whether properly treated as costs of administration of estate — Whether costs claimed reasonable and proportionate.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms U Stanisich	McNab, McNab and Starke
For the First Defendant	Ms C McOmish	Weir & Strempel Pty Ltd
For the Second Defendant	Ms G Grigoriou	MGA Lawyers

HER HONOUR:

By originating motion filed 23 September 2019, the plaintiff seeks certain orders and directions arising in the administration of the estate of the deceased pursuant to Order 54 of the Supreme Court (General Civil Procedure) Rules 2015.

Background

Mavis Violet Aitken died on 4 April 2017. She was survived by her two daughters, Patricia Susanne Aitken-Welsh (‘Ms Aitken-Welsh’) and Robyn Ann Browne (‘Ms Browne’). There is a lengthy history of acrimony between Ms Aitken-Welsh and other members of the deceased’s family. This has continued following the deceased’s death.

The deceased left three wills, dated 20 November 2012 (‘the final will’), 15 June 2007 (‘the penultimate will’) and 5 March 2003. The deceased’s final will appoints Ms Aitken-Welsh and Ms Browne as executors and trustees of the estate. The penultimate will appoints the deceased’s granddaughter, Ms Catherine Melissa Hearne (‘the first defendant’), as executor and trustee of the estate.

Disputes emerged among the family members as to the validity of the final will and the fitness of Ms Aitken-Welsh to be an executor of the deceased’s estate. Ms Aitken-Welsh’s fitness to act as executor was questioned on the basis of her bankruptcy and prior criminal convictions.

On 15 December 2014, Ms Aitken-Welsh was declared bankrupt following a debtor’s petition. On 30 November 2017, the Official Trustee transferred the office of trustee…

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 Re Aitken; Maier v Hearne

Details

AGLC: Re Aitken; Maier v Hearne [2020] VSC 432
Case: [2020] VSC 432
Decision Date: 15 July 2020

CaseChat Overview and Summary

The case of Re Aitken; Maier v Hearne involved an application to bar claims against the estate of a deceased person. The dispute centred around the administration of the estate and whether certain claims could be barred. The matter was heard in the Supreme Court of Victoria.

The legal issues before the court were whether the claims against the estate could be barred under the relevant legislation and whether the costs claimed were reasonable and proportionate to the issues in dispute. The court needed to determine if the claims, which were vested in the trustee in bankruptcy, could be barred under the Administration and Probate Act 1958 (Vic) and the Bankruptcy Act 1966 (Cth). Additionally, the court had to assess the costs claimed in relation to the applications and the investigation into the alleged claims, to determine if they were reasonable and proportionate under the Civil Procedure Act 2010 (Vic).

The court found that the claims against the estate could be barred as they were vested in the trustee in bankruptcy and the trustee had no intention of pursuing them. The court also held that the costs claimed for the applications were reasonable and proportionate given the nature of the issues. However, the court found that the costs of the investigation into the alleged claims were not properly treated as costs of the administration of the estate. The court determined that these costs were not reasonable and proportionate, as they were not directly related to the issues in dispute.

The final orders included barring the claims against the estate and setting aside the costs claimed for the investigation into the alleged claims. The court allowed the costs claimed for the applications to proceed, finding them to be reasonable and proportionate.

Orders