Re Mason; Scott v Petsas - [2017] VSC 687

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2017 03168

IN THE MATTER of the will and estate of ANTHONY IVAN MASON, deceased

-and-

IN THE MATTER of s 34 of the Administration and Probate Act 1958

BETWEEN:

AMANDA SCOTT and DEBORAH SCOTT	Plaintiffs
and
JOHN PETSAS (as executor of the will and estate of Anthony Ivan Mason, deceased)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 September 2017
DATE OF RULING:	14 November 2017
CASE MAY BE CITED AS:	Re Mason; Scott & Anor v Petsas
MEDIUM NEUTRAL CITATION:	[2017] VSC 687

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COSTS—Estate litigation—Defendant named executor in deceased’s will—Plaintiffs beneficiaries under the will—Plaintiffs sought orders removing defendant as executor of the estate—No grant of probate—Proceeding misconceived—Whether plaintiffs entitled to costs out of the estate—Supreme Court Act 1986, s 24.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr I H Percy	Robinson Gill
For the Defendant	Mr R R Boaden	Natoli Howell

HER HONOUR:

Background

Anthony Mason died on 26 April 2017, aged 76 years (‘the deceased’). He did not marry and had no children. He is survived by, inter alia:

(a) his long term partner, Noel Alexander, born 9 May 1932 and now incapacitated;

(b) his two sisters, Marion Scott and Angela Jepson;

(c) his two nieces, Amanda Scott and Deborah Scott, (‘the plaintiffs’); and

(d) his two friends, the defendant, John Petsas, and Rose Di Flumeri.

The deceased left a will dated 13 February 2017 and a codicil dated 11 April 2017. By his will, the deceased named the defendant as his executor, with Rose Di Flumeri as his alternate executor. The deceased bequeathed, inter alia, his valuable pottery collection to his sisters and the defendant in equal shares, his bone china collection to his sisters in equal shares and left a life interest in the residue of his estate to his partner. Upon the death of his partner, the residue of his estate, apart from a small legacy to a friend, was left to his two sisters as to 25 per cent, to his nephew and three nieces as to 5 per cent each (two of whom are the plaintiffs), 45 per cent to a cancer charity and 10 per cent to a charity that deals with Alzheimer’s disease.

Plaintiffs’ allegations of conflict

The plaintiffs are two of the deceased’s nieces. They claimed the defendant was in a position of actual or potential conflict of interest and that he ought not prove the deceased’s will. Their claims of actual or potential conflict of interest arose from certain transactions by the deceased during his lifetime where they allege that the defendant received certain benefits from the deceased.

These transactions arose out of transfers by a discretionary trust controlled by the deceased. The deceased and his partner were the two primary beneficiaries under the discretionary trust. In late 2016, the trust transferred two residential units to Rose Di Flumeri. Although…

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 Mason; Scott v Petsas

Details

AGLC: Re Mason; Scott v Petsas [2017] VSC 687
Case: [2017] VSC 687
Decision Date: 14 November 2017

CaseChat Overview and Summary

The case of Re Mason; Scott v Petsas involved the dispute over the administration of the estate of a deceased person. The plaintiffs, the beneficiaries under the deceased's will, sought to remove the defendant, who was named as the executor in the will, from his role due to concerns over his conduct. The plaintiffs filed their application without a grant of probate having been issued, leading to a dispute over the jurisdiction and the appropriateness of the application. The court was required to determine whether the plaintiffs were entitled to costs out of the estate under the relevant provisions of the Supreme Court Act 1986.

The central legal issue before the court was whether the plaintiffs were entitled to costs from the estate, as they had commenced proceedings that were ultimately deemed misconceived. The plaintiffs argued that the application was properly before the court and sought to have their costs paid from the estate. The defendant, on the other hand, contended that the proceedings were misconceived and that the plaintiffs should not be entitled to any costs from the estate. The court had to consider the relevant statutory provisions, particularly section 24 of the Supreme Court Act 1986, which deals with costs in probate matters.

The court found that the proceedings were indeed misconceived because they were brought without a grant of probate. Consequently, the application to remove the defendant as executor was not properly before the court. The court held that the plaintiffs were not entitled to costs out of the estate as the application was not successful and was deemed misconceived. The court’s reasoning was based on the statutory framework that governs probate matters and the need for a grant of probate before certain actions can be taken in relation to an estate.

As a result of the court’s decision, the plaintiffs were not granted costs from the estate. The orders made by the court reflected the finding that the proceedings were misconceived and that the plaintiffs were not entitled to any costs under the circumstances.

Orders