Re McQuillan - [2016] VSC 647

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
TRUST, EQUITY AND PROBATE LIST

S CI 2016 02996

IN THE MATTER of an application by STATE TRUSTEES LIMITED (as the executor of the estate of FRANCIS JOHN McQUILLAN, deceased) pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 for directions in relation to the administration of the estate of Francis John McQuillan, deceased

APPLICATION BY:

STATE TRUSTEES LIMITED (ACN 064 593 148)

Plaintiff

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	28 October 2016
CASE MAY BE CITED AS:	Re McQuillan
MEDIUM NEUTRAL CITATION:	[2016] VSC 647

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WILLS AND ESTATES — Small estates provisions — Where deemed grant of representation made in 1995 — Later discovery that estate exceeded the maximum monetary value for small estate provisions — Where grant of probate required to distribute real property of estate — Whether revocation of deemed grant required before application for grant of representation — Administration and Probate Act 1958, ss 71, 79.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Mah	State Trustees Limited

HER HONOUR:

Introduction

The Administration and Probate Act 1958 (‘the Act’) makes provision for the administration of small estates, as defined in the Act, without the need to apply for a grant of probate or letters of administration. This proceeding concerns the administration of a small estate in 1995 by the plaintiff when a small estate was defined as an estate of $25,000 or less or, where the only persons entitled in the estate were the surviving spouse and/or children of the deceased, where the estate is $50,000 or less.[1]
[1]Administration and Probate Act 1958, s 79, as amended by State Trustees (State Owned Company) Act 1994.

Francis John McQuillan died on 30 March 1994 (‘the deceased’). By his will dated 9 April 1986 (‘the will’), the deceased appointed the Public Trustee for Victoria as the executor of his will and trustee of his estate. Pursuant to s 26 of the State Trustees (State Owned Company) Act 1994, a reference in a will to the Public Trustee for Victoria is construed as a reference to State Trustees Limited (‘the plaintiff’).[2]
[2]Pursuant to the State Trust Corporation of Victoria Act 1987 (‘the 1987 Act’), the Public Trustee for Victoria was replaced by State Trust Corporation of Victoria (‘State Trust’). The 1987 Act was repealed by s 24 of the State Trustees (State Owned Company) Act 1994. Pursuant to s 25(1)(a) of the State Trustees (State Owned Company) Act 1994, all rights in State Trust vested in the plaintiff and, pursuant to s 25(1)(c), the plaintiff is the successor in law of State Trust.

The plaintiff thought that the deceased’s estate amounted to $10,464.08, being undrawn pension moneys from the Department of Veterans Affairs.

Pursuant to s 5 of the State Trustees (State Owned Company) Act 1994, the plaintiff is entitled to give…

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 McQuillan

Details

AGLC: Re McQuillan null [2016] VSC 647
Case: [2016] VSC 647
Decision Date: 28 October 2016

CaseChat Overview and Summary

The case of Re McQuillan involved a dispute concerning the administration of the estate of a deceased person. The central issue was whether a deemed grant of representation, which had been issued in 1995, needed to be revoked before a formal grant of probate could be applied for, given that it was later discovered that the estate exceeded the monetary threshold for small estate provisions. The matter was heard by the Supreme Court of Victoria.

The legal issues before the court centred around the interpretation and application of the Administration and Probate Act 1958. Specifically, the court needed to determine whether the deemed grant of representation, which was issued under section 71, could be revoked and replaced with a formal grant of probate as provided for in section 79. This involved understanding the implications of a deemed grant and how it interacts with the subsequent discovery that the estate's value exceeded the small estate limit, necessitating formal probate to deal with the real property.

The court found that a deemed grant of representation could indeed be revoked if it was no longer appropriate due to a change in the estate's circumstances. It was held that the deemed grant, issued under section 71, could be revoked, and a formal grant of probate could be applied for in its place. This was necessary to allow for the proper administration and distribution of the estate's real property, which was not possible under the deemed grant. The court's decision was based on the plain language of the statute and the need to ensure that the estate was administered in accordance with the law.

The final orders of the court were that the deemed grant of representation issued in 1995 be revoked, and an application for a formal grant of probate be permitted. This allowed the estate to be properly administered, taking into account the increased value and the need to distribute the real property correctly.

Orders