Re Boglis - [2022] VSC 309

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2021 00701

IN THE MATTER of the will and estate of APHRODITE BOGLIS, deceased

-and-

IN THE MATTER of an application under s 15 of the Administration of Probate Act 1958

ARTHUR BOGLIS	Plaintiff
v
TONY BOGLIS and PORTFOLIO LAW PTY LTD (ACN 601 527 477)	Defendants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 February 2022
DATE OF JUDGMENT:	8 June 2022
CASE MAY BE CITED AS:	Re Boglis
MEDIUM NEUTRAL CITATION:	[2022] VSC 309

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PROBATE – Passing over application – Application by named executor that other named executor should show cause why he should not prove the will of the deceased or renounce probate thereof – Where other named executor resided at the property of the deceased – Where property of the deceased required significant clean up – Substantial disagreements inhibiting the due and proper administration of the estate – Relief granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N McOmish	Griffin Lawyers
For the First Defendant	Mr K Mihaly	Scomparin & Bernardi

HER HONOUR:

Introduction

Aphrodite Boglis died on 10 August 2020. The deceased was survived by her three adult sons: the plaintiff, the first defendant and Thomas Boglis.

The deceased’s will dated 18 April 2016 appoints the plaintiff and first defendant as executors and divides her estate into one third equal shares, with one third each to the plaintiff and Thomas and the remaining one third to the first defendant’s adult children, Felicia and Brandon Boglis. It is common ground that the first defendant requested the deceased to leave the remaining one third share to his two children.

The deceased’s estate comprises the deceased’s home in Murray Road, Preston and less than $4,000 in the bank. Despite the relatively straight forward nature of the deceased’s estate, since the death of the deceased there have been significant disputes between the plaintiff and the first defendant in the process of attempting to obtain a grant of probate of the deceased’s will.

At the date of the deceased’s death, the will was in the possession of Portfolio Law. As is the usual course, Portfolio Law required the authority of both named executors before releasing the will. The first defendant would not provide the necessary authority.

On the first return of the proceeding, orders were made for Portfolio Law to deliver the will to the Registrar of Probates by 3 May 2021. Portfolio Law produced the will to the Court on 17 August 2021. On or about 5 November 2021 the Court forwarded the will to the plaintiff’s solicitors.

On 26 November 2021 the plaintiff informed the Court that the plaintiff would discontinue the proceeding against Portfolio Law.

Plaintiff’s application

By originating motion filed 12 March 2021 the plaintiff sought, inter alia, that the first defendant renounce probate, alternatively, that he be passed over and the plaintiff be entitled to prove the deceased’s will. The…

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 Boglis

Details

AGLC: Re Boglis [2022] VSC 309
Case: [2022] VSC 309
Decision Date: 8 June 2022

CaseChat Overview and Summary

The parties involved in this case were two executors of the deceased's will, who were also named beneficiaries. The dispute arose from the executors' inability to administer the estate due to significant disagreements. The matter was brought before the Supreme Court of Victoria. The court was required to decide whether the executor who made the application should be granted the authority to prove the will and obtain probate without the other executor's participation.

The primary legal issue was whether the named executor should be allowed to proceed with proving the will and obtaining probate despite the objections from the other executor. The court considered the circumstances of the case, including the other executor's residence at the deceased's property and the need for substantial clean-up, as well as the disagreements that prevented the proper administration of the estate. The court also considered the principles of equity and fairness in determining the best course of action for the estate and the beneficiaries.

The court found that the other executor should show cause why the applicant should not proceed with proving the will and obtaining probate. The court acknowledged the significant disagreements and the impact they had on the administration of the estate. The court also noted that the other executor's residence at the deceased's property and the need for clean-up contributed to the difficulties in administering the estate. The court granted the relief sought by the applicant, allowing them to proceed with proving the will and obtaining probate without the other executor's participation.

The court's final orders were that the named executor who made the application be granted the authority to prove the will and obtain probate of the deceased's estate without the other named executor's participation. The court also directed that the other executor show cause, if any, why the applicant should not proceed with the administration of the estate.

Orders