Re Graham - [2022] VSC 757

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2021 20612

ALISTAIR HAMISH GRAHAM, FIONA SARAH LLOYD and HELEN LOUISE CANNON	Plaintiffs
TIMOTHY PETER GRAHAM	Caveator

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2022
DATE OF JUDGMENT:	9 December 2022
CASE MAY BE CITED AS:	Re Graham
MEDIUM NEUTRAL CITATION:	[2022] VSC 757

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SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – Caveats – Application by plaintiffs for a grant of representation opposed by caveator – Caveator alleges plaintiffs ought be passed over due to conflict of duty and interest – Prima facie case not established – Caveat dismissed – Monty Financial Services Ltd v Delmo [1996] 1 VR 65; Re Estate of Crane (2005) 93 SASR 198; Gardiner v Hughes (No 2) [2019] VSCA 198.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Jonathan McCoy	Hall & Wilcox
For the Caveator	Paul Reynolds	Aitken Partners

HIS HONOUR:

The deceased died on 28 August 2018, aged 86. She was survived by six children, including the plaintiffs and the caveator.

The deceased left a will dated 28 February 2014. By her Will, the deceased appointed the plaintiffs as executors of her estate and, following payment of all her debts, funeral and testamentary expenses, divided her estate equally between them. The caveator is not a beneficiary under the Will.

The plaintiffs did not initially make an application for a grant of probate in respect of the Will as they maintain that the deceased’s estate is insolvent. However, they brought such an application on 25 November 2021 to avoid the potential costs involved in what they regarded as unnecessary legal proceedings threatened by the caveator.

The inventory of assets and liabilities filed by the executors with their application for probate reveals that the estate is insolvent. It records assets of approximately $4,548.15 and liabilities of approximately $124,074.53, being the balance of a debt owed by the deceased to Phillagree Pty Ltd (the trustee) as trustee for The Phillagree Island Trust (the trust).

The caveator lodged a caveat against the making of a grant of probate on 10 November 2021.

By further amended grounds of objection dated 1 August 2022 (the grounds of objection), the caveator alleges that the plaintiffs ought to be passed over as executors of the Will because of a conflict of interest between their duties as executors and their personal interests. The caveator does not, however, challenge the validity of the Will.

The principal issue for determination is whether the grounds of objection disclose a prima facie case in opposition to the plaintiffs’ application for a grant of representation. There is also an issue as to whether the caveator has standing to maintain his caveat. It is convenient to first consider whether the caveator has established a prima facie case.

Principles of law

The Court of Appeal authoritatively addressed the approach to determining the existence of a prima facie case…

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 Graham

Details

AGLC: Re Graham [2022] VSC 757
Case: [2022] VSC 757
Decision Date: 9 December 2022

CaseChat Overview and Summary

The case of Re Graham involved an application by the plaintiffs for a grant of representation, which was opposed by a caveator. The caveator argued that the plaintiffs should be passed over due to a conflict of duty and interest. The matter was heard and determined in the Supreme Court of South Australia. The primary issue for the court was whether the caveator had established a prima facie case warranting the passing over of the plaintiffs.

In addressing this issue, the court considered relevant legal principles and precedents. It examined whether the caveator had demonstrated that the plaintiffs had a conflict of interest that would prevent them from acting impartially in the administration of the estate. The court noted that a conflict of duty and interest must be clearly established, and the burden of proof was on the caveator. After reviewing the evidence, the court found that the caveator had not made out a prima facie case. Consequently, the court dismissed the caveat and proceeded with the grant of representation to the plaintiffs.

The court's reasoning was influenced by several key cases, including Monty Financial Services Ltd v Delmo, Re Estate of Crane, and Gardiner v Hughes (No 2). These cases emphasised the need for a strong evidentiary foundation to support claims of conflict of duty and interest. The court held that, in the absence of such evidence, the caveator's objections were insufficient to prevent the grant of representation to the plaintiffs. The final order of the court was to dismiss the caveat and grant representation to the plaintiffs, allowing them to proceed with the administration of the estate.

Orders