Re Mas; Weston v Donaldson - [2018] VSC 405

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2017 04214

IN THE MATTER of the will and estate of LENIN MARTIN MAS, deceased

-and-

IN THE MATTER of an application pursuant to Order 54 of the Supreme Court (General Civil Procedure) Rules 2015

DOUGLAS LINDSAY WESTON (as executor of the Estate of LENIN MARTIN MAS, deceased)	Plaintiff
v
ANDREW ROBERT CHARLES DONALDSON	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	24 July 2018
CASE MAY BE CITED AS:	Re Mas; Weston v Donaldson
MEDIUM NEUTRAL CITATION:	[2018] VSC 405

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SUCCESSION — Construction of will — Whether ‘nieces and nephews’ includes nephews and nieces by affinity — Where phrase ‘nieces and nephews’ not open to equivocation —Fell v Fell (1922) 31 CLR 268 — Perrin v Morgan [1943] AC 399 — Parry v Haisma [2012] NSWSC 290 — Re Staughton; Grant v McMillan [2017] VSC 359 — Wills Act 1997, s 36.

SUCCESSION — Administration — Whereabouts of nephew unknown — Whether Benjamin order appropriate — Advertisement not required if irresistible inference on facts — Benjamin order not yet appropriate — Re Benjamin; Neville v Benjamin [1902] 1 Ch 723 — Gonzales v Claridades [1956] VLR 535.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Guzzo	AB Natoli Pty
For the Defendant	Cavoli & Co Solicitors

HER HONOUR:

Introduction

Lenin Martin Mas, also known as Leonard Martin Mas died on 15 August 2014 (‘the deceased’ or ‘the testator’). His wife predeceased him, having died in 1995. The deceased and his wife had no children.

The deceased’s will dated 19 June 2014 appointed the plaintiff and the defendant as the executors and trustees of his estate. Probate of the deceased’s will was granted to the plaintiff and the defendant on 11 June 2015. The plaintiff is the deceased’s brother-in-law. The defendant is the son of the deceased’s sister-in-law.

Although an executor of the estate of the deceased, the defendant is not named in this proceeding in that capacity as, in a separate proceeding, he claims provision from the estate, pursuant to Part IV of the Administration and Probate Act 1958.[1]
[1]Proceeding number S CI 2015 06250.

Relevant provisions of the will

Clause 3(b) of the deceased’s will provides for the residue of his estate to be distributed as follows:

(b)to pay and transfer the rest residue and remainder of my Estate (herein called ‘my Residuary Estate’) equally between my nieces and nephews or the survivor of them PROVIDED HOWEVER should any such niece or nephew of mine be unwilling or unable to take (whether by reason of death or otherwise) having child or children of their own alive at my death and who have attained or subsequently attain their majority then such child or children shall take the share which his, her or their parent would have otherwise taken and if more than one in equal shares.

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 405
Decision Date: 24 July 2018

CaseChat Overview and Summary

The case of Re Mas; Weston v Donaldson concerned the interpretation of a will and the administration of an estate. The deceased, Mas, left a will which included a bequest to her "nieces and nephews". The primary issue before the court was whether the phrase "nieces and nephews" included nephews and nieces by affinity. The court examined relevant case law, including Fell v Fell, Perrin v Morgan, Parry v Haisma, and Re Staughton; Grant v McMillan, to determine the appropriate interpretation of the term. The court also considered the statutory provisions under the Wills Act 1997, particularly section 36, which deals with the construction of wills.

The court held that the term "nieces and nephews" was unambiguous and did not include nephews and nieces by affinity. The court relied on the principle established in Fell v Fell that where a term is clear and unambiguous, it should be given its ordinary meaning. The court found that Mas's intention was to bequeath to her blood relatives and not to those related by marriage. The court also considered the administration of the estate, particularly the whereabouts of one of the nephews. The court concluded that a Benjamin order, which allows for the administration of an estate when a beneficiary's whereabouts are unknown, was not yet appropriate as there was no irresistible inference that the nephew was deceased.

The court's reasoning was influenced by the case of Gonzales v Claridades, which held that an advertisement for a missing beneficiary is not required if there is an irresistible inference that the beneficiary is deceased. The court held that, given the current evidence, it was not appropriate to make a Benjamin order. The court's decision was based on a careful consideration of the language of the will, relevant case law, and statutory provisions. The court's final orders were to dismiss the application for a Benjamin order and to continue the administration of the estate under the existing provisions.

Orders