Legal Research
Cases
Re Arklie (No. 2)

Re Arklie (No. 2)

Case [2019] VSC 350 27 May 2019

Appointment of executors

Passing over

Independent executor

Succession Law

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S ECI 2019 00442

IN THE MATTER of the will and estate of MAVIS KATHLEEN ARKLIE, deceased

- and –

BETWEEN

PAMELA ANN SIME	First Plaintiff
- and -
LINDA MARGUERITE MANN	Second Plaintiff
v
MARINA JOY WHITE	Defendant

---

JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	27 May 2019
CASE MAY BE CITED AS:	Re Arklie (No. 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 350

---

ADMINISTRATION AND PROBATE — Succession — Appointment of executors — Passing over — Where relationship between named executors has broken down — Appointment of an independent executor — r 5.02 of the Administration and Probate Rules 2014.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ms E Konstantinou	Tisher Liner FC Law
For the Defendant	Mr A Verspaandonk	Slater & Gordon Lawyers

HIS HONOUR:

Introduction

Mavis Arklie (the deceased) died on 10 December 2017. She is survived by five daughters, six grandchildren, and one great-grandchild. Under her last will dated 29 August 2017 (the will), the deceased appointed as executors three of her daughters, Pamela Sime and Linda Mann (the plaintiffs) and Marina White (the defendant). The executors have not made an application for probate of her estate.

The plaintiffs seek orders that they and the defendant be passed over as executrices of the will and that Letters of Administration with the will annexed be granted to State Trustees Ltd (State Trustees). State Trustees has consented to being appointed in the event that the Court determines that it is appropriate for an independent administrator to be appointed.

The will and the deceased’s estate

Under the will, the deceased’s estate is to be distributed as follows:

(a) a bequest of $400,000 to the first plaintiff for a deposit she gave the deceased during the deceased’s lifetime;

(b) a bequest of $10,000 to the defendant for assistance with building the deceased’s house during the deceased’s lifetime;

(c) a bequest of $5,000 to each of the deceased’s grandchildren and her great-granddaughter and any other great-grandchildren;

(d) a coin album and collection to her granddaughter Kimberley Mann; and

(e) the residue of the estate to be divided between each of her five daughters in equal shares.

The principal asset of the estate is a house located in Bentleigh in the State of Victoria (the Bentleigh property), the estimated value of which was between $900,000-$970,000 as at October 2017. It is encumbered by a reverse mortgage to the Commonwealth Bank, the balance of which was $14,562.88 as at 2 January 2018.

A dispute between the plaintiffs and the defendant over the deceased’s chattels began after family members attended the Bentleigh property and removed various items, allegedly including a number of items of jewellery, furniture, linens, crockery, and other miscellaneous items (the chattel dispute). There is no agreement between the parties…

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 Arklie (No. 2)

Details

AGLC: Re Arklie (No. 2) [2019] VSC 350
Case: [2019] VSC 350
Decision Date: 27 May 2019

CaseChat Overview and Summary

The case of Re Arklie (No. 2) involved a dispute regarding the succession of a deceased estate and the appointment of executors. The relationship between the named executors had deteriorated to the extent that their ability to effectively carry out their duties was impaired. The matter was heard in the Supreme Court of Queensland.

The primary legal issue before the court was whether it should appoint an independent executor in light of the breakdown in the relationship between the named executors. This involved consideration of the relevant statutory provisions, specifically rule 5.02 of the Administration and Probate Rules 2014. The court had to determine if the situation warranted the appointment of an independent executor to ensure the estate was administered properly.

The court found that the relationship between the named executors had indeed broken down to the extent that their ability to act together in the best interest of the estate was compromised. This justified the appointment of an independent executor, who would be able to navigate the challenges presented by the deteriorating relationship. The court held that in exercising its discretion under rule 5.02, it was appropriate to appoint an independent executor to manage the estate.

The court's decision concluded that an independent executor should be appointed to administer the estate of the deceased, ensuring that the estate is managed effectively and that the interests of the beneficiaries are protected. This decision provided a clear direction for the management of the estate moving forward.

Orders