Re Flavel; Application by Lipshut - [2018] VSC 228

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2018 00536

IN THE MATTER of the will and estate of ALBERT GEORGE FLAVEL, deceased

-and-

IN THE MATTER of an application under s 34 of the Administration and Probate Act 1958 and ss 48 and 51 of the Trustee Act 1958

APPLICATION BY:

PHILIP KEITH LIPSHUT (as executor of the will and estate of ALBERT GEORGE FLAVEL, deceased)

Plaintiff

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 March 2018
DATE OF JUDGMENT:	8 May 2018
CASE MAY BE CITED AS:	Re Flavel; Application by Lipshut
MEDIUM NEUTRAL CITATION:	[2018] VSC 228

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EXECUTORS AND TRUSTEES — Where executors disagree over administration of estate and conduct of multiple family provision claims made against the estate — Solicitor executor seeks to be discharged as executor of estate — Remaining executor wishes to continue as executor — Where claimants in family provision claims object to remaining executor continuing as only executor of estate on grounds of conflict of interest and duty — Where claimants in family provision claims seek appointment of an alternative and independent administrator — Administration and Probate Act 1958, s 34(1)(b), Trustee Act 1958, ss 48(1), 51.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S McNab	BJT Legal Pty Ltd
For non-party, Heather Liston	Mr M Goldblatt	Goldsmiths Lawyers
For non–parties, Peter Flavel, Wendy Flavel and Gail Panoutsos	Mr P Crofts	Taits Legal

HER HONOUR:

Introduction

Albert George Flavel died on 21 May 2016 (‘the deceased’). He was survived by his four adult children, Heather Liston, Peter Flavel, Wendy Flavel and Gail Panoutsos (‘Heather’, ‘Peter’, ‘Wendy’ and ‘Gail’, respectively).

The deceased’s will appointed the plaintiff and Heather as his executors and trustees. The plaintiff had been the deceased’s solicitor for several years at the time his will was made. On 14 October 2016, probate of the deceased’s will was granted to the executors.

Pursuant to his will, the deceased left all of his farming land, plant, equipment and livestock to Heather, the sum of $10,000 to Gail, one half of the residue of the estate to Wendy absolutely and the remaining half on a discretionary trust for the maintenance and benefit of Peter, with any balance being held for Wendy’s absolute use and benefit upon Peter’s death. It is estimated that Heather receives at least 83 per cent of the deceased’s estate.

The plaintiff deposed that, as at November 2017, the estate was valued at $4,035,966.61. This includes the farming land valued at $2,850,000 and plant and equipment valued at $373,727. The remaining assets of the estate comprise a term deposit, a unit located in Nhill, shares, motor vehicles, sundry furniture and effects, and trust funds held by the plaintiff’s solicitors.

In separate proceedings, Peter and Wendy, by their respective litigation guardians, and Gail seek further provision from the deceased’s estate, pursuant to Part IV of the Administration and Probate Act 1958 (‘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 Flavel; Application by Lipshut

Details

AGLC: Re Flavel; [2018] VSC 228
Case: [2018] VSC 228
Decision Date: 8 May 2018

CaseChat Overview and Summary

The parties in this case were the executors of an estate, Lipshut and Flavel, who were in disagreement over the administration of the estate and the conduct of family provision claims made against it. The court was required to decide whether Lipshut could be discharged as an executor and if Flavel could continue as the sole executor of the estate. The claimants in the family provision claims objected to Flavel continuing as the sole executor on the grounds of a conflict of interest and duty, and sought the appointment of an alternative and independent administrator.

The court considered the provisions of the Administration and Probate Act 1958 and the Trustee Act 1958. It was noted that under section 34(1)(b) of the former Act, an executor may be discharged if it is in the interest of justice to do so, and under section 48(1) and 51 of the latter Act, the court has the power to appoint an administrator where it is appropriate. The court found that there was a real and substantial risk of a conflict of interest and duty if Flavel were to continue as the sole executor of the estate, and that it was in the interest of justice to discharge Lipshut as an executor. The court appointed an independent administrator to manage the estate and conduct the family provision claims.

The court's decision was based on a careful consideration of the interests of all parties involved and the need to ensure that the administration of the estate was conducted in a fair and impartial manner. The court recognised the potential for a conflict of interest and duty if Flavel were to continue as the sole executor, and found that it was appropriate to discharge Lipshut as an executor and appoint an independent administrator. This decision ensures that the estate is managed in a way that is in the best interests of all parties, and provides a fair and impartial forum for the resolution of the family provision claims.

Orders