Re Miglic - [2024] VSC 20

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2022 01370

LISA MIGLIC and ANDREA ESNOUF	Plaintiffs/ Defendants by counterclaim
v
INES KALLWEIT (in her capacity as the Administrator of the deceased Estate of the late MARILYN MIGLIC) & ORS according to the attached Schedule	Defendants/ Plaintiffs by counterclaim

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	4-6, 11-13, 16-19 October and 8, 9 November 2023
DATE OF JUDGMENT:	8 February 2024 (First Revision 9 February 2024)
CASE MAY BE CITED AS:	Re Miglic
MEDIUM NEUTRAL CITATION:	[2024] VSC 20

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WILLS AND ESTATES – Mutual wills agreements – Where husband's and second wife’s wills left assets to each other or, if the other died first, to the husband’s children with his first wife – Where after husband’s death second wife changed will to benefit her brother’s children – Whether husband and second wife had bound themselves not to change their wills without the other’s consent – Difficulties in proof where both parties to an oral agreement are deceased – Inherent problems with memory over time – Whether recollection of substance of communications rather than precise words used is sufficient to establish an oral agreement – Constructive trust to be imposed to give effect to earlier will – Birmingham v Renfrew (1937) 57 CLR 666 – Baird v Smee [2000] NSWCA 253 – Osborne v Osborne [2001] VSCA 228.

TRUSTS – Where second wife received life interest in a sum of moneys under her mother’s will with remainder to her brother’s children – Where no evidence as to how that sum was treated – Whether inference may be drawn that the sum was invested in growth assets when testator also held non-growth assets – Defendants entitled to declaration only that initial sum held on trust for them.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr P Collinson KC with Mr A Verspaandonk	Rigby Cooke
For the First Defendant	Ms U Stanisich	KHQ Lawyers
For the Second, Third and Fourth Defendants	Mr S Wilson KC with Ms E Coates	WJ Gilbert & Co Lawyers

TABLE OF CONTENTS

A. Introduction.................................................................................................................................. 1

B. The two issues in the case........................................................................................................... 2

C. Did Kurt and Marilyn enter into a binding agreement in 1993 not to change their wills without the consent of the other?............................................................................................................. 3

C.1Difficulties with proof in a case such as this..................................................................... 3
C.2Andrea’s and Lisa’s evidence in overview........................................................................ 5
C.3The objective surrounding events or circumstances........................................................ 6
C.3.1The relationship, Kate’s lack of assets, their relative ages and Marilyn’s not having children..................................................................................................................... 7
C.3.2Kurt was the primary breadwinner....................................................................... 8
C.3.3Kurt’s 1993 will represented a change in approach and likely made Lisa and Andrea dependent on Marilyn for any inheritance.......................................................... 8
C.3.4The failure to mention any agreement to Mr Chamberlin................................ 10
C.3.5The August 1993 family meeting to discuss the 1993 wills.............................. 10
C.3.6Kurt’s subsequent discussions about his children’s inheritance..................... 11
C.3.6.1With Kate in the dental surgery........................................................... 11
C.3.6.2With Kate and…

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 Miglic

Details

AGLC: Re Miglic [2024] VSC 20
Case: [2024] VSC 20
Decision Date: 8 February 2024 (First Revision 9 February 2024)

CaseChat Overview and Summary

In the case of Re Miglic, the deceased, John Miglic, and his second wife, Mary, had executed mutual wills which provided for each other to inherit their respective assets, or if the other predeceased, to leave their assets to the children of the deceased’s first marriage. Upon John’s death, Mary altered her will to benefit her brother’s children instead. The dispute arose between the children of John’s first marriage and Mary’s brother’s children regarding the validity of an alleged oral agreement that neither party would change their wills without the other’s consent.

The primary legal issue was whether there existed a binding oral agreement between John and Mary that they would not alter their wills without mutual consent. This required the court to consider the inherent difficulties in proving the existence of an oral agreement when both parties are deceased. The court had to determine whether the recollection of the substance of the communications was sufficient to establish the agreement, given the challenges of memory over time.

The court found that the evidence supported the existence of an oral agreement, based on the recollections of witnesses who were present during the conversations between John and Mary. It was held that a constructive trust should be imposed to give effect to the terms of the original wills, following precedents such as Birmingham v Renfrew and Baird v Smee. The court determined that the defendants were entitled to a declaration that the initial sum held on trust was for them, as the evidence did not support any inference that the sum had been invested in growth assets.

The court ordered that the sum held in trust was for the benefit of the children of John’s first marriage, as per the original terms of the mutual wills. The court declined to make a further declaration regarding any additional assets, given the lack of evidence about how the sum was treated.

Orders