IN THE MATTER of the will and estate of ELIZABETH ANNA MARIA LAUER, deceased
-and-
IN THE MATTER of an application pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 for the determination of a question arising in the administration of the estate
BETWEEN:
ROSS CORBY and GEORGE ANDERSON (as executors and trustees of the will and estate of Elizabeth Anna Maria Lauer, deceased)
Plaintiffs
v
SUZANNE MARY LYTTLETON (as legal personal representative of the estate of George Nagy, deceased)
Defendant
---
JUDGE:
McMillan J
WHERE HELD:
Melbourne
DATE OF HEARING:
On written submissions
DATE OF JUDGMENT:
30 November 2017
CASE MAY BE CITED AS:
Re Lauer; Corby & Anor v Lyttleton
MEDIUM NEUTRAL CITATION:
[2017] VSC 728
---
TRUSTS— Creation of express trusts — Three certainties — Where residue of estate bequeathed to purported express trust — Where multiple deeds of trust — Whether express trust validly created — Where no evidence of intention of settlor — Where no evidence of trust property — Where no evidence of trust beneficiaries — Byrnes v Kendle (2011) 243 CLR 253 — Harpur v Levy [2011] VSC 653 — La Housse v Counsel [2008] WASCA 207.
Elizabeth Lauer (‘the deceased’) died on 10 May 2011. Probate of her will, dated 21 November 2002 (‘the will’), and estate was granted to the plaintiffs on 29 September 2011. At the date of her death, the deceased was 88 years old and had never married. From approximately 2006 onwards, the deceased suffered from dementia.
For probate purposes, the value of the deceased’s estate was estimated to be $448 168. At the commencement of this application on 8 October 2015, however, the estate had diminished to approximately $300,000.[1] This was on account of a property at 133 Spray Street, Mornington being sold for less than the initial estimated value, payment of certain distributions in accordance with clause 6 of the will, and legal costs.
[1]An updated financial statement dated 24 May 2017 provided by the plaintiffs shows the value of the estate at that time to be $255 053, having diminished due to fees and disbursements.
Clause 6 of the will bequeaths six legacies totalling $38 000. Clause 8 of the will devises the deceased’s interest in a property at 216 Eastbourne Road, Rosebud (‘the Eastbourne Road property’) to the defendant. That property was sold in 2005. Relevantly, clause 9 of the will then leaves the residue of the estate to…
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 Lauer; Corby v Lyttleton
Sign in free to access the full text
Details
AGLC
Re Lauer; Corby v Lyttleton [2017] VSC 728
Case
[2017] VSC 728
Decision Date
CaseChat Overview and Summary
The case of Re Lauer; Corby v Lyttleton involved a dispute over the creation of an express trust in relation to the residue of an estate. The primary issue before the court was whether the residue of the estate, which was bequeathed to a purported express trust, was validly created. The court had to determine if there was sufficient evidence of the settlor's intention, identification of trust property, and ascertainable beneficiaries to establish the trust. The case drew on precedents such as Byrnes v Kendle, Harpur v Levy, and La Housse v Counsel to address these issues.
The legal issues required the court to examine whether the three certainties necessary for the creation of an express trust were satisfied. These certainties include the intention of the settlor, the subject matter of the trust, and the beneficiaries. The court had to scrutinise the multiple deeds of trust presented to ascertain whether they provided clear evidence of these elements. The absence of evidence regarding the settlor's intention, the specific property intended to be held in trust, and the beneficiaries posed significant hurdles in validating the trust. The court needed to decide if these deficiencies were fatal to the trust's creation.
The court found that the necessary evidence to establish an express trust was lacking. Without clear evidence of the settlor's intention, identifiable trust property, and beneficiaries, the court concluded that the purported express trust was not validly created. The court's decision was influenced by the lack of documentation and the absence of any personal representative to provide further evidence. Consequently, the court ruled against the establishment of the express trust. This decision was grounded in the legal principles established by the cited precedents, which emphasised the necessity of the three certainties for a valid trust.
The final orders of the court included a declaration that the purported express trust was invalid, thereby preventing the beneficiaries from claiming any rights under it. The court's ruling ensured that the residue of the estate would be distributed according to the intestacy laws rather than being subject to the trust. This decision underscored the importance of clear evidence in trust creation and the consequences of failing to meet the required legal standards.