Re Mutch - [2018] VSC 619

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2016 20507

IN THE MATTER of the will and estate of ELVA MAISIE MUTCH, deceased

APPLICATION BY:

LESLIE JAMES CLARKE

Plaintiff

---

JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	17 October 2018
CASE MAY BE CITED AS:	Re Mutch
MEDIUM NEUTRAL CITATION:	[2018] VSC 619

---

PROBATE − Application by plaintiff for grant of administration with the will annexed − Where plaintiff not a beneficiary of the estate − Standing of plaintiff − Where plaintiff foreshadowed claim for family provision from the estate − Due and proper administration of estate − Application dismissed − Fodor v Simudvarac [2014] VSC 227 − Mataska v Browne [2013] VSC 62.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W F Gillies	Law Albury Wodonga Pty Ltd

HER HONOUR:

Introduction

Elva Maisie Mutch died on 4 November 2015, leaving a will dated 15 December 1969. The deceased’s husband predeceased her and she had no children. The deceased’s estate is valued at approximately $120,000.

The deceased’s will appoints her two sisters as the executors of the estate and does not nominate any substitute executors. The deceased’s two sisters predeceased the deceased. The will leaves a gift of $300 to the deceased’s father and the residue of the estate upon trust to the Spastic Centre of New South Wales. The deceased’s father predeceased the deceased. The Spastic Centre of New South Wales no longer exists and its successor in title is the Cerebral Palsy Alliance (‘the charity’).

On 7 December 2016, the plaintiff, in his capacity as the nephew of the deceased, filed an application for letters of administration with the will dated 15 December 1969 annexed.

On 8 December 2016, the Assistant Registrar of Probates raised a requisition, refusing the application, stating that the plaintiff has no beneficial interest in the deceased’s estate.

By letter dated 9 June 2017 to the Registrar of Probates, the plaintiff’s solicitors stated that the plaintiff had standing to make the application ‘as both a potential Part IV claimant and a member of the family of the deceased’.

After further correspondence between the plaintiff’s solicitors and the Registrar of Probates, by email dated 23 April 2018, the Registrar of Probates confirmed that he would not grant the application for the reasons expressed in the chain of correspondence commencing 8 December 2016. Throughout that correspondence, the Registrar of Probates set out succinct reasons for not being able to make the grant of representation to the plaintiff.

On 18 June 2018 the plaintiff filed a notice to produce the file to the Judge in the Trusts, Equity and Probate List.

Plaintiff’s application

The plaintiff asserts that he has standing to be appointed as administrator of the estate on the basis that he is a potential applicant for provision from the estate, pursuant to Part IV of the Administration and Probate Act 1958

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 Mutch

Details

AGLC: Re Mutch [2018] VSC 619
Case: [2018] VSC 619
Decision Date: 17 October 2018

CaseChat Overview and Summary

In the matter of the estate of a deceased person, the plaintiff sought a grant of administration with the will annexed. The plaintiff was not a beneficiary of the estate but had foreshadowed a claim for family provision. The matter was before the Supreme Court of Victoria. The primary legal issue before the court was whether the plaintiff had standing to apply for the grant of administration with the will annexed, despite not being a beneficiary of the estate and having foreshadowed a claim for family provision.

The court considered the relevant authorities, including Fodor v Simudvarac and Mataska v Browne, and determined that the plaintiff did not have standing to apply for the grant of administration with the will annexed. The court held that the plaintiff must establish standing by showing a proprietary or pecuniary interest in the estate, which the plaintiff had not done. The court also held that the plaintiff's foreshadowed claim for family provision did not confer standing. The court noted that the due and proper administration of the estate was an important consideration and that the plaintiff's application was dismissed.

The court's decision was based on the established principles of standing in probate matters and the need to ensure that only those with a legitimate interest in the estate can apply for a grant of administration. The court held that the plaintiff did not have standing to apply for the grant of administration with the will annexed and dismissed the application accordingly. No further orders were made.

Orders