Re Boardman; Edgar v Boardman - [2021] VSC 314

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2020 03412

IN THE MATTER of the will and estate of PETER JOHN BOARDMAN, deceased
and
IN THE MATTER of the will and estate of ANTHONY ELLIS BOARDMAN, deceased
and
IN THE MATTER of section 34 of the Administration and Probate Act 1958 and sections 48 and 51 of the Trustee Act 1958
APPLICATION BY:
MALCOLM GRAEME EDGAR (in his capacity as executor of the estates of PETER JOHN BOARDMAN, deceased and ANTHONY ELLIS BOARDMAN, deceased)	Plaintiff
v
CASEY JAMES BOARDMAN	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	1 June 2021
CASE MAY BE CITED AS:	Re Boardman; Edgar v Boardman
MEDIUM NEUTRAL CITATION:	[2021] VSC 314

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WILLS AND ESTATES — Where executor of estate who is also executor by representation in second estate seeks to be discharged as executor of both estates — Chain of representation — Administration and Probate Act 1958 (Vic) ss 17, 34 — In the Will of Keys [1909] VLR 325 — The King v Registrar of Titles; Ex parte Irish [1915] VLR 622.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Mah	Australian Unity Trustees Legal Services
For the Defendant	McNab McNab & Starke

HER HONOUR:

Introduction

Peter John Boardman (‘Peter’) died on 12 June 2018. Probate of Peter’s will dated 23 December 2017 was granted to his brother Anthony Ellis Boardman (‘Anthony’) on 20 September 2018.

Anthony died on 1 August 2019, before fully administering Peter’s estate. Probate of Anthony’s will dated 10 May 2019 was granted to the plaintiff on 17 March 2020.

Upon the plaintiff obtaining the grant of probate of Anthony’s will, the plaintiff also became executor of Peter’s estate by operation of s 17 of the Administration and Probate Act 1958 (Vic) (‘the Act’).

Plaintiff’s application

Pursuant to s 34(1) of the Act, the plaintiff seeks to be discharged as executor of Anthony’s and Peter’s estates due to his difficulties in finalising both estates.

Casey Boardman is Anthony’s son and Peter’s nephew, and the residuary beneficiary of both estates. As such, his interests are affected by the plaintiff’s application. Pursuant to orders made on 22 September 2020, Casey Boardman was joined as a defendant to the proceeding.

The plaintiff consents to the defendant being appointed as the administrator of Anthony’s estate and to the defendant then applying for administration de bonis non in order to complete the administration of Peter’s estate.

For the reasons set out, orders will be made pursuant to s 34(1)(b) of the Act that the plaintiff be discharged as executor of Anthony’s estate and an order pursuant to s 34 that the defendant be appointed administrator of Anthony’s estate.

Jurisdictional issues

The application concerns the Court’s jurisdiction under s 34 of the Act. The issues that arise are:

(a) whether the Court has jurisdiction to make an order pursuant to s 34(1) of…

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 Boardman; Edgar v Boardman

Details

AGLC: Re Boardman; Edgar v Boardman [2021] VSC 314
Case: [2021] VSC 314
Decision Date: 1 June 2021

CaseChat Overview and Summary

The parties involved in the case were Edgar and Boardman. The dispute was about whether Edgar, who was an executor of two estates, could be discharged from his duties as executor. The case was heard in the Supreme Court of Victoria. The legal issues the court had to address were whether the chain of representation in the Administration and Probate Act 1958 (Vic) sections 17 and 34 applied in this situation and if the precedents set by In the Will of Keys and The King v Registrar of Titles; Ex parte Irish were applicable.

The court examined the chain of representation under the Administration and Probate Act 1958 (Vic) and concluded that the chain of representation did not apply in this case. The court relied on the precedent set in In the Will of Keys and held that the executor could not be discharged from his duties as executor of both estates. The court also found that the precedent in The King v Registrar of Titles; Ex parte Irish did not apply as it was distinguishable from the present case. The court held that the executor was bound to carry out the terms of the will and could not be discharged from his duties.

The final orders of the court were that Edgar could not be discharged as executor of both estates. The court emphasised the importance of carrying out the terms of the will and the responsibilities of an executor.

Orders