Re Moran

Case [2022] VSC 776 14 December 2022

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2022 01152

IN THE MATTER of the estate of KEVIN CHARLES MORAN, deceased
and
IN THE MATTER of an application pursuant to Order 54 of the Supreme Court (General Civil Procedure) Rules 2015
and
IN THE MATTER of section 76 of the Guardianship and Administration Act 2019
BETWEEN
KYLIE LOUISE MAMONE and AARON GRAY MORAN	Plaintiffs
and
PAUL RONALD MORAN (who is sued as executor by substitution of the estate of KEVIN CHARLES MORAN, deceased)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 November 2022
DATE OF JUDGMENT:	14 December 2022
CASE MAY BE CITED AS:	Re Moran
MEDIUM NEUTRAL CITATION:	[2022] VSC 776

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WILLS – Construction of will – Principle of ademption – Gift of ‘the real estate owned by me’ – Property sold during deceased’s lifetime by deceased’s administrator – Whether specific gift of property owned by the deceased when will made – Guardianship and Administration Act 1986 (Vic) s 53; Guardianship and Administration Act 2019 (Vic) s 76.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S P Newton	Equity Legal Australia
For the Defendant	Mr N J Baum	T J Mulvany & Co

HER HONOUR:

Introduction

Kevin Moran (‘the deceased’) died on 22 July 2020, leaving a will dated 24 September 1976 (‘the will’). Probate of the will was granted to the deceased’s brother, Ronald Moran (‘Ronald’), in April 2021. Ronald subsequently died on 5 November 2021. At the time of Ronald’s death, the administration of the deceased’s estate had not been completed. On 1 April 2022, Ronald’s son Paul Moran (‘the defendant’) obtained a grant of probate of Ronald’s will, in which he was named executor of Ronald’s estate. By reason of s 17(1) of the Administration and Probate Act 1958 (Vic), the defendant also became executor of the deceased’s estate.

The relevant provisions of the will provide:

I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal whatsoever and wheresoever situate unto my wife NOLA MORAN provided she shall survive me by thirty days …
… I GIVE AND DEVISE the real estate owned by me to my son GEOFFREY WILLIAM ARTHUR MORAN
I GIVE AND BEQUEATH the whole of my personal estate to my said brother RONALD MORAN for his own use and benefit subject to payment thereout of all my just debts funeral and testamentary expenses Probate and Federal estate duties …

The deceased was predeceased by his second wife Nola Moran (‘Nola’) and his son Geoffrey Moran (‘Geoffrey’). Geoffrey had two children, Kylie Mamone and Aaron Moran (‘the plaintiffs’), who pursuant to s 31 of the Wills Act 1958 (Vic) are entitled to any benefit Geoffrey would have received had he survived the deceased,[1] that is, the gift to Geoffrey under the will of ‘the real estate owned by me’.
[1]The plaintiffs’ originating motion filed 5 April 2022 referred to s…

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 Moran

Details

AGLC: Re Moran [2022] VSC 776
Case: [2022] VSC 776
Decision Date: 14 December 2022

CaseChat Overview and Summary

The matter of Re Moran involved the interpretation of a will concerning the distribution of a deceased’s property. The deceased had explicitly left a specific property to a named beneficiary in their will. However, the property had been sold by the deceased’s administrator prior to their death. The dispute centred on whether the gift of the property constituted a specific gift that remained valid despite the sale or if the sale resulted in the ademption of the gift. The matter was heard by the Supreme Court of Victoria.

The primary legal issue was whether the will’s provision for the specific property constituted a specific gift that survived the sale of the property, or if the sale resulted in the ademption of the gift. This hinged on whether the property remained identifiable as the one intended by the deceased at the time of their death. The court also needed to consider statutory provisions under the Guardianship and Administration Act 1986 (Vic) and the Guardianship and Administration Act 2019 (Vic) that govern the sale of property by administrators.

The court found that the gift was a specific gift, and therefore, it was not adeemed by the sale of the property. The court reasoned that the principle of ademption only applies when the specific property intended to be gifted no longer exists. Since the property was sold but remained identifiable, the specific gift was not adeemed. The court relied on statutory provisions and case law to support its interpretation that the specific gift survived the sale. The court further determined that the statutory provisions did not override the clear intention of the will.

As a result, the beneficiary was entitled to the proceeds from the sale of the property, as the specific gift remained valid despite the sale. The court’s decision upheld the beneficiary’s claim to the proceeds, ensuring that the deceased’s clear intention was respected. The court’s ruling was grounded in the statutory framework and the well-established principles of will construction, providing clarity for future cases involving similar issues.

Orders