Re Bogdanov; Atkins v Drummond - [2019] VSC 70

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S ECI 2018 02722

IN THE MATTER of the estate of VICTOR BOGDANOV (deceased)

-and-

IN THE MATTER of an application pursuant to Order 54 of the Supreme Court (General Civil Procedure) Rules2015 and/or Section 28 of the Administration and Probate Act1958 and/or the Court’s inherent jurisdiction

ANASTASIA BOGDANOV ATKINS	Plaintiff
-and-
JOHN JOSEPH DRUMMOND and BASIL BOGDANOV (who are sued in their personal capacity and in their capacity as executors of the estate of VICTOR BOGDANOV, deceased)	Defendants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 February 2019
DATE OF RULING:	18 February 2019
CASE MAY BE CITED AS:	Re Bogdanov; Atkins v Drummond & Anor
MEDIUM NEUTRAL CITATION:	[2019] VSC 70

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WILLS & ESTATES — Where plaintiffs and defendants are executors of estate of deceased — Where first defendant a former solicitor and holds the records of the deceased’s estate — Where first defendant refused to provide an account in required form — First defendant ordered to file administration account of estate of deceased — Administration and Probate Act 1958, s 28.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C R Northrop	Scammell Black Mileo
For the First named Defendant	In person
For the Second named Defendant	Mr N P Jones	Felton Farquhar & Co

HER HONOUR:

Introduction

Victor Bogdanov (‘the deceased’) died on 22 September 2015. He was survived by his two adult children, plaintiff and the second defendant.

By his will dated 12 April 2011, the deceased appointed the plaintiff and the defendants as his executors and trustees. The first defendant is a former solicitor who carried on practice under his former name, Joseph Lo Presti. Probate of the deceased’s will was granted to the plaintiff and the defendants on 29 July 2016.

The deceased left his estate to the plaintiff and the second defendant in equal shares as tenants in common. The value of the estate in the inventory of assets and liabilities filed with the probate application was $440.000.

Plaintiff’s application

By originating motion filed 12 December 2018, the plaintiff seeks, inter alia, that:

(a) the defendants be restrained from making or receiving any distribution from the estate otherwise than in accordance with the deceased’s will;

(b) the first defendant repay any amount paid to him from the estate as commission or other remuneration;

(c) the first defendant file and serve a true and just account in Form 3-6AA of the Supreme Court (Administration and Probate) Rules2014 of the administration of the estate, verified by affidavit[1]; and

(d) the defendants provide to the plaintiff all bank statements and other records relating to the funds of the estate.

[1]Supreme Court (Administration and Probate) Rules 2014, r 6.03.

Factual background

On 24 November 2017, the plaintiff’s solicitors wrote to the estate’s former solicitors, Felton Farquhar & Co. (‘Felton Farquhar’) requesting, inter alia, a trust statement 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.

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Details

Case: [2019] VSC 70
Decision Date: 18 February 2019

CaseChat Overview and Summary

The case of Re Bogdanov; Atkins v Drummond involved two executors of the estate of a deceased person, both of whom were plaintiffs and defendants in the proceedings. The dispute centred on the refusal of one of the executors, who was also the former solicitor of the deceased, to provide an account of the estate in the required form. The plaintiffs sought an order for the first defendant to file an administration account of the deceased’s estate as per the Administration and Probate Act 1958. The primary legal issues before the court were whether the first defendant had a duty to provide an account of the estate and if the plaintiffs were entitled to an order for such an account under the statute.

The court examined the provisions of the Administration and Probate Act 1958, specifically section 28, which mandates that executors must account for the estate. The court found that the first defendant, as a former solicitor, had a duty to provide an account of the estate. Given the refusal of the first defendant to comply with this statutory requirement, the court ruled that the plaintiffs were entitled to an order for an administration account of the estate. The court emphasised the importance of transparency and accountability in the administration of estates, highlighting that executors must adhere to the statutory obligations set forth in the Act.

As a result of the court's decision, the first defendant was ordered to file an administration account of the estate of the deceased. The court underscored the necessity for executors to comply with statutory duties to ensure the proper administration of estates. The decision reinforced the principle that executors, including former solicitors, are required to account for the estate in the form prescribed by the Act. The final orders of the court mandated the first defendant to provide the required account within the stipulated timeframe.

Orders