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Re Evans; Marks v Evans (No 2)

Re Evans; Marks v Evans (No 2)

Case [2023] VSC 158 3 April 2023

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2021 03577

IN THE MATTER of the will and estate of JOYCE OLGA EVANS, deceased

and

IN THE MATTER of the EVANS FAMILY TRUST

and

IN THE MATTER of an application pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic)

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

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	3 April 2023
CASE MAY BE CITED AS:	Re Evans; Marks v Evans (No 2)
MEDIUM NEUTRAL CITATION:	[2023] VSC 158

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COSTS – Costs of application for judicial advice – Whether costs incurred in the proper administration of the estate – Whether executor and trustee entitled to indemnity from assets of the estate – Whether executor and trustee liable for defendants’ costs without indemnity from assets of the estate.

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APPEARANCES:	Counsel	Solicitors
For the First Plaintiff	Mr C Shaw KC 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

By originating motion dated 27 September 2021, pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’), the plaintiffs sought judicial advice in respect of 18 paragraphs of relief or remedies sought by them, although some of the claims related only to one or other of the plaintiffs, rather than both.

The 18 paragraphs of relief or remedies related to the will and codicil of Joyce Olga Evans, deceased. Probate of the will and codicil was granted to the first plaintiff and the ninth defendant on 26 September 2019. The will and codicil contained specifications in respect of the Evans Family Trust (the ‘family trust’). The second plaintiff, R.J.A Nominees Pty Ltd, is the trustee of the family trust. As at the date of her death, the deceased was the appointor of the family trust, as well as a director and the sole shareholder of R.J.A Nominees Pty Ltd.

Part of the relief sought by the originating motion included directions and orders relating to the plaintiffs’ powers to pay and receive executors’ and trustees’ commission.[1] The parties filed significant affidavit material addressing these issues, however, at trial this relief was not ultimately pressed by the plaintiffs. Some of the 18 paragraphs 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.

Continue reading Re Evans; Marks v Evans (No 2)

Details

AGLC: Re Evans; Marks v Evans (No 2) [2023] VSC 158
Case: [2023] VSC 158
Decision Date: 3 April 2023

CaseChat Overview and Summary

The case of Re Evans; Marks v Evans (No 2) involved a dispute regarding the costs associated with an application for judicial advice in the administration of an estate. The executors and trustees of the estate, the plaintiffs, sought to recover costs from the estate assets and were challenged by the defendants, who argued that the executors and trustees should bear the costs personally. The matter was heard in the Supreme Court of Queensland. The primary legal issue before the court was whether the executors and trustees were entitled to an indemnity from the estate assets for costs incurred in the proper administration of the estate and, if not, whether they were personally liable for the defendants' costs.

The court examined the relevant statutory provisions and case law to determine the applicable principles. It found that the executors and trustees had a duty to administer the estate in the best interests of the beneficiaries. In exercising this duty, they were permitted to incur reasonable costs, which could be paid from the estate assets if the costs were for the benefit of the estate. However, where the costs were not for the benefit of the estate, the executors and trustees were not entitled to an indemnity from the estate assets. Instead, they were personally liable for the costs. The court applied these principles to the facts of the case and found that the executors and trustees were not entitled to an indemnity from the estate assets for the costs in question.

The court held that the executors and trustees were personally liable for the defendants' costs. It noted that the application for judicial advice was not necessary for the proper administration of the estate and that the costs incurred were not for the benefit of the estate. The court also found that the executors and trustees had acted unreasonably and in bad faith in pursuing the application. As a result, the executors and trustees were ordered to pay the defendants' costs. The court did not make any orders regarding the distribution of the estate assets.

Orders