BERNARD MARKS (as one of the joint and several executors of the will and estate of JOYCE OLGA EVANS, deceased)	First Plaintiff
and
R.J.A NOMINEES PTY LTD ACN 005 095 885 (in its capacity as trustee of the EVANS FAMILY TRUST)	Second Plaintiff
v
BRADLEY GRAYSON EVANS (and others according to the schedule attached)	Defendants

---

JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 August 2022
DATE OF JUDGMENT:	12 January 2023
CASE MAY BE CITED AS:	Re Evans; Marks v Evans
MEDIUM NEUTRAL CITATION:	[2023] VSC 4

---

ADMINISTRATION AND PROBATE – Discharge of executor and trustee – Inability to act due to ill health – Application not opposed by remaining executor or beneficiaries of estate – Vesting orders made – Administration and Probate Act 1958 (Vic) s 34(1)(b) – Trustee Act 1958 (Vic) s 48.

PRACTICE AND PROCEDURE – Executor’s application for judicial advice in respect of compromise of family provision proceeding – Where all affected beneficiaries sui juris and consent to compromise – Whether application necessary – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 54.02.

SUCCESSION – Wills – Validity of clauses of will – Bequest to charitable and unnamed beneficiaries – Whether validity of clauses of will still in issue in light of compromise – Compromise a replacement of relevant clauses in their entirety – Construction of will – Principles of construction – Meaning of ‘family income fund’.

TRUSTS – Entry into deed of compromise by trustee – Where deed provides for the vesting of a discretionary family trust – Where trust deed gives trustee absolute discretion as to vesting date – Where all living beneficiaries consent to the vesting of trust – Where potential unborn beneficiaries – Whether entry into deed amounts to a fetter of trustee’s discretion.

---

APPEARANCES:	Counsel	Solicitors
For the First Plaintiff	Mr C Shaw QC and Mr J Kohn	Romer & Co
For the First and Second Defendants	Ms U Stanisich	McCullough Robertson Lawyers
For the Third and Sixth Defendants	Mr J Korfiatis, solicitor	Webb Korfiatis Family Law
For the Fourth and Fifth Defendants	Mr J McCoy	Mitry Lawyers
For the Seventh Defendant	Mr S Gannon	Nicholas O’Donohue & Co Lawyers
For the Eighth Defendant	Dr P Bender	Victorian Government Solicitor’s Office
For the Ninth Defendant

HER HONOUR:

Introduction

Joyce Olga Evans (‘the deceased’) died on 20 April 2019. Prior to her death, the deceased was an eminent Australian photographer and art historian, a gallery director, and an art curator and a collector.

The deceased was survived by her two adult children, Bradley Evans (‘Bradley’) and Deborah Vanderhoek (‘Deborah’), and her…

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 Evans; Marks v Evans

Details

AGLC: Re Evans; Marks v Evans [2023] VSC 4
Case: [2023] VSC 4
Decision Date: 12 January 2023

CaseChat Overview and Summary

In the matter of Re Evans; Marks v Evans, the Supreme Court of Victoria was called upon to address several issues concerning the administration of a deceased estate and the validity of certain clauses within a will. The central dispute involved the discharge of an executor and trustee, who sought relief due to their inability to act owing to ill health. The executor and trustee, in this case, applied for judicial advice regarding the compromise of a family provision proceeding, which was not opposed by the remaining executor or the beneficiaries of the estate. Additionally, the court had to consider the validity of specific clauses in the deceased's will, particularly those related to bequests to charitable and unnamed beneficiaries.

The legal issues before the court included whether the executor's application for judicial advice was necessary when all affected beneficiaries were sui juris and consented to the compromise. Furthermore, the court had to determine if the compromise effectively replaced the relevant clauses of the will, thereby resolving questions about their validity. The court also examined the construction of the will, focusing on the meaning of the term 'family income fund' and whether the entry into a deed of compromise by the trustee amounted to a fetter of the trustee's discretion regarding the vesting of a discretionary family trust.

The court ruled that the executor's application for judicial advice was indeed necessary, as it provided an opportunity for the court to offer guidance and ensure that the compromise was fair and in the best interests of all parties involved. The court found that the compromise effectively replaced the relevant clauses of the will, thereby resolving any lingering questions about their validity. The court also held that the entry into the deed of compromise did not amount to a fetter of the trustee's discretion, given that the trust deed provided the trustee with absolute discretion as to the vesting date and all living beneficiaries consented to the vesting of the trust.

As a result of the court's decision, vesting orders were made, allowing the executor and trustee to be discharged due to their inability to act. The court's ruling provided clarity on the compromise of the family provision proceeding, the validity of the clauses in the will, and the construction of the will in relation to the 'family income fund'. The court's decision ultimately facilitated the smooth administration and distribution of the deceased's estate in accordance with the wishes of the deceased and the consent of the affected beneficiaries.

Orders