Re Lewis; Caddick & Staples v Lewan - [2018] VSC 615

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S CI 2017 03354

IN THE MATTER of the estate of ZYGMUNT LEWIS, deceased.
BETWEEN:
ALISON CADDICK and JENEFER KAREN STAPLES (as executors of the estate of ZYGMUNT LEWIS, deceased)	Plaintiffs
v
WAYNE LEWAN	Defendant

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 October 2018
DATE OF JUDGMENT:	18 October 2018
CASE MAY BE CITED AS:	Re Lewis; Caddick & Staples v Lewan
MEDIUM NEUTRAL CITATION:	[2018] VSC 615

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WILLS AND ESTATES – Application for advice and orders – Whether residuary estate to be paid to beneficiary of trust upon termination of trust – Whether residuary estate passes to next of kin on an intestacy.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S Newton	Suzanne Jones Lawyers
For the Defendant	Ms U Stanisich	Maurice Blackburn

HIS HONOUR:

Zygmunt Lewis died on 1 November 2016. Probate was granted on 30 December 2016. His final will was executed on 11 March 2016.

The primary question in the present proceeding is whether the residuary of Mr Lewis’ estate is to be paid to his great nephew Jakob Lewandowski (‘Jakob’) upon his attaining the age of 21 years.

The plaintiffs, who are the executors of the estate, submit that this question should be answered in the affirmative. The defendant, a child of Mr Lewis’ deceased brother, submits that, upon Jakob turning 21 years of age, the residuary of the estate passes on an intestacy. The defendant is one of Mr Lewis’ next of kin for intestacy purposes.

The relevant provisions of the will

The question for determination arises out of cl 3(i) of the will. However, for the purposes of construing that clause, it is necessary to set out cl 3 in its entirety.

I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal of whatsoever nature and wheresoever situate unto my Trustees including investment with CBA and cheque account no. 10166266 with Commonwealth Bank of Australia, Balwyn branch, Victoria, UPON TRUST with the specific condition to sell my house and contents and personal effects and after payment thereout of my just debts and duties or taxes payable in connection with my estate to distribute the balance remaining upon the following terms:-
(a)To my brother SLAWOMIR LEWANDOWSKI of 18m 33 Korotynskiego, Warsaw 02-123, Poland, I give FIVE HUNDRED THOUSAND DOLLARS ($500,000) as shall survive me or if he shall predecease me to his Estate.
(b)If she survives me I give to my friend ALISON CADDICK of 12 Mark Street, North Fitzroy, Victoria 3068 FIVE HUNDRED THOUSAND DOLLARS ($500,000) for her sole use and benefit absolutely.
(c)If she survives me I give to my friend MELODY HAI HONG ZHANG of Unit 20, 36-40 Disraeli Street, Kew, Victoria 3101 FIFTY THOUSAND DOLLARS ($50,000) for her sole use and benefit absolutely.
(c)If she survives me I give to my friend NANA LIU of Unit 20, 36-40 Disraeli Street, Kew, Victoria…

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.

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Details

Case: [2018] VSC 615
Decision Date: 18 October 2018

CaseChat Overview and Summary

The case of Re Lewis; Caddick & Staples v Lewan involved a dispute over the distribution of the residuary estate of a deceased person, Lewis, who died intestate. The applicants, Caddick and Staples, sought advice and orders regarding whether the residuary estate should be paid to the beneficiary of a trust established by Lewis or whether it should pass to Lewis's next of kin due to intestacy. The matter was heard by the Supreme Court of Queensland.

The central legal issue before the court was the interpretation of the terms of a trust deed and the applicable statutory provisions governing intestate succession. Specifically, the court needed to determine whether the residuary estate of the deceased, which was held in a discretionary trust, should be distributed to the beneficiaries of the trust or whether it should be considered part of the intestate estate to be distributed according to the intestacy laws.

The court examined the terms of the trust deed and the relevant statutory provisions. It found that the trust deed did not explicitly address the distribution of the residuary estate upon the termination of the trust. Given the lack of specific direction in the trust deed, the court considered the statutory provisions on intestate succession, which provide that the estate of a deceased person who dies intestate passes to their next of kin. The court concluded that the residuary estate, being part of the deceased's estate, should pass to the next of kin on intestacy, as the trust deed did not provide a clear alternative disposition. The court accordingly advised that the residuary estate should be distributed to Lewis's next of kin.

The court made orders in accordance with its findings, directing that the residuary estate of the deceased, Lewis, be paid to his next of kin as provided by the relevant statutory provisions on intestate succession.

Orders