JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	6 September 2019
CASE MAY BE CITED AS:	Re Emmins
MEDIUM NEUTRAL CITATION:	[2019] VSC 605

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WILLS AND ESTATES — Where plaintiff seeks appointment of administrator ad litem —Where plaintiff’s previous application for appointment dismissed — Where instituted executor has not renounced probate — Where plaintiff alleges claims that would be choses in action of estate — Plaintiff in position of conflict of interest — Application dismissed — Greenway v McKay (1911) 12 CLR 310 — Re Estate of McGown [1946] VLR 113 — Hewitt v Gardiner [2009] NSWSC 705.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	MS CH Sparke QC	Robertson Hyetts Solicitors
For the Defendant	Mr JF Richardson	Aitken Partners

HER HONOUR:

Introduction

Irene Eva May Emmins died on 8 October 2009, aged 81 years. Her will dated 4 May 2006 appoints her daughter, Marlene Shannon, as the executrix and trustee of her estate. Mrs Shannon has not sought a grant of probate of the deceased’s will and has not filed a renunciation of probate.

Pursuant to the will, the deceased’s daughter and the deceased’s two grandchildren (being the plaintiff and the defendant) are each entitled to a twenty per cent share of the residue of the estate. The remaining residuary beneficiaries are the plaintiff’s daughter as to twenty per cent and the defendant’s two children as to twenty per cent in total. No distributions from the estate have been made to the residuary beneficiaries.

Plaintiff’s application

By ex parte originating motion filed 28 August 2018, the plaintiff, as the granddaughter of the deceased and one of the residuary beneficiaries of the estate, seeks a grant of letters of administration ad litem in the estate of the deceased concerning the deceased’s shares in Sorrel Holding Pty Ltd (‘Sorrel’) and Noojee Sawmilling & Logging Co. Pty Ltd (‘Noojee’). The details of the limited grant were contained in a separate document headed ‘Notice to Produce’ as follows:

1.Letters of administration of the estate of the [deceased be] granted to [the plaintiff] subject to the limitations set out below.

2.        This grant is limited for the purpose of:
(a)making enquiries of, and obtaining information and documents from, any person or authority who has or is likely to have in their possession, any medical records, legal files, documents, accounts or other relevant documents touching on, or in relation to the transfer of:
(i)        the shares in [Sorrel] previously held by the deceased;
(ii)       the shares in [Noojee] previously held by the deceased;
(b)bringing such proceedings as she is advised in order to recover in to the estate:
(i)        the shares in [Sorrel]…

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 Emmins

Details

AGLC: Re Emmins [2019] VSC 605
Case: [2019] VSC 605
Decision Date: 6 September 2019

CaseChat Overview and Summary

The case of Re Emmins involved a dispute over the estate of a deceased individual. The plaintiff sought the appointment of an administrator ad litem, a request which had been previously dismissed. The executor of the estate had not renounced probate, and the plaintiff sought to pursue claims that would typically be the responsibility of the estate. However, the plaintiff was found to be in a position of conflict of interest, which led to the dismissal of their application. The case relied on precedents such as Greenway v McKay, Re Estate of McGown, and Hewitt v Gardiner to support its reasoning.

The primary legal issue before the court was whether the plaintiff was entitled to the appointment of an administrator ad litem, given their previous application had been dismissed, and the potential conflict of interest they held. The court needed to determine whether the plaintiff's claims were valid, and if the executor's failure to renounce probate had any bearing on the matter. The court also had to consider the established legal principles that govern the appointment of administrators ad litem and the handling of estates where a conflict of interest may exist.

In reaching its decision, the court examined the facts of the case and the relevant legal principles. It found that the plaintiff's previous application for the appointment of an administrator ad litem had been dismissed, and there was no basis to grant the application on this occasion. The court also determined that the plaintiff's claims were choses in action of the estate, and their position of conflict of interest further supported the dismissal of their application. The court relied on the cases of Greenway v McKay, Re Estate of McGown, and Hewitt v Gardiner to support its decision. Consequently, the plaintiff's application was dismissed.

No specific orders were made in the case, as the court found that the plaintiff's application for the appointment of an administrator ad litem was not valid. The court did not make any orders regarding the estate or the executor, as the primary issue revolved around the plaintiff's eligibility for the appointment of an administrator ad litem.

Orders