Re Burstyner - [2021] VSC 531

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2021 05586

IN THE MATTER of the estate of HENRY SAMUEL BURSTYNER, deceased

APPLICATION BY:

DAVID SANDOR BURSTYNER (in the will called David Burstyner) and
JOEL BURSTYNER

Plaintiffs

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	26 August 2021
CASE MAY BE CITED AS:	Re Burstyner; Application by Burstyner & Anor
MEDIUM NEUTRAL CITATION:	[2021] VSC 531 (First Revision 10 December 2021; Second Revision 16 February 2022)

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PROBATE — Where executors seek letters of administration with the will annexed — Where purpose of application is to break chain of representation — Where executors do not wish to renounce probate — Where executors required to renounce probate to obtain letters of administration with the will annexed — Effect of renunciation on a person’s entitlement to apply for grant in another capacity — Administration and Probate Act 1958 (Vic) s 16 — Re William Kennett Loftus (1864) 3 Sw & Tr 307; 164 ER 1293; Re Gill (1872–5) LR 3 P&D 113; Re Sahl (1897) 7 BC NSW 71; Re Saxon (1872) 6 SALR 52.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Boaden	Rockman & Rockman Lawyers Pty Ltd

HER HONOUR:

Introduction

Henry Samuel Burstyner died on 8 January 2021, leaving a will dated 18 February 2000. The deceased was survived by his three adult sons: David Sandor Burstyner (‘David’), Joel Burstyner (‘Joel’) and Shane Burstyner (‘Shane’). The deceased’s will appoints David, Joel and Shane as executors of the estate and leaves his estate to them in equal shares.

Prior to his death the deceased was a practising solicitor. At the date of his death, the deceased was the sole executor of one estate and appeared to be administering that estate. The deceased was also the executor in another estate that was unlikely to need administration. As the deceased’s health declined in the latter part of 2020, the deceased took some steps to engage another law firm to take over files relating to his estate matters.

Application

David and Joel (‘the plaintiffs’) filed an originating motion seeking a grant of letters of administration with the will annexed. By agreement, Shane did not join in the application.

The plaintiffs sought a grant of letters of administration with the will annexed, rather than a grant of probate, in order to break the chain of representation as contained in s 17 of the Administration and Probate Act 1958 (Vic). The plaintiffs did not want to be executors by representation of any estates to which the deceased was an executor having regard to the responsibilities and potential liabilities that may be incurred in taking on such roles.

The plaintiffs made funeral arrangements and obtained information from the deceased’s accountant as to the deceased’s assets and liabilities. Otherwise they have not taken any steps to administer the deceased’s estate. The urgency of the application arose…

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 Burstyner

Details

AGLC: Re Burstyner [2021] VSC 531
Case: [2021] VSC 531
Decision Date: 26 August 2021

CaseChat Overview and Summary

The executors of a deceased person’s estate sought letters of administration with the will annexed. The purpose of this application was to break the chain of representation and avoid the cost and delay associated with a grant of probate. The executors did not wish to renounce their right to probate, as they believed that this would allow them to continue their role without interruption. The court was required to determine whether the executors could obtain letters of administration with the will annexed without renouncing their right to probate, and the effect of such renunciation on a person’s entitlement to apply for a grant in another capacity.

The court held that the executors were required to renounce their right to probate in order to obtain letters of administration with the will annexed. The court noted that the purpose of the renunciation requirement was to ensure that a person did not hold two inconsistent grants at the same time. The court also held that renunciation did not affect a person’s entitlement to apply for a grant in another capacity. The court relied on a number of cases which established that a person who renounced their right to probate could still apply for letters of administration with the will annexed.

The court made an order that the executors renounce their right to probate and apply for letters of administration with the will annexed. The court also made an order that the executors pay the costs of the application.

Orders