Re Nanut; Nanut v Nanut - [2024] VSC 212

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2022 02319

IN THE MATTER of the estate of RADOVAN BASIL NANUT (deceased)

ELIZABETH MARGUERITE DOWLING NANUT	Plaintiff
v
MARGUERITE MARY NANUT	Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	12–14 February 2024
DATE OF JUDGMENT:	6 May 2024
CASE MAY BE CITED AS:	Re Nanut; Nanut v Nanut
MEDIUM NEUTRAL CITATION:	[2024] VSC 212

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WILLS, PROBATE AND ADMINISTRATION — Application for grant of probate — Where probate already granted to defendant as one of four named executors — Where plaintiff mistakenly believed she was a proving executor — Whether plaintiff should be passed over — Probate granted — Re Munro [2018] VSC 747 — O’Halloran v Coffey (No 2) [2023] VSC 51.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Evans KC with Ms RG Morison	Moray & Agnew
For the Defendant	Mr S Wotherspoon with Mr J Acutt	King & Collins

TABLE OF CONTENTS

Legal principles

Grounds of objection

Delay in applying for probate

Residence overseas

Did Lizzie obstruct the sale of St Georges Road?

Was Lizzie uncooperative in the distribution of the Ferraris?

Did Lizzie delay in communication about Rado’s personal items?

Has Lizzie failed to review or comment on the draft accounts?

Has Lizzie misconducted herself in relation to the estate?

Is administration of the estate almost complete?

Is Lizzie a suitable person to act as co-executor?

Disposition

HER HONOUR:

Radovan Basil Nanut (Rado) died on 29 November 2004 at the age of 64, leaving a will dated 3 April 2003 and a substantial estate. Rado was survived by his wife, Marguerite Mary Nanut (Maggie) and their three children, Pia Elizabeth Dowling Nanut (Pia), James Rado Dowling Nanut (James) and Elizabeth Marguerite Dowling Nanut (Lizzie).[1] At the time of Rado’s death, Pia was aged 30, James was aged 28, and Lizzie was just 21 years old.
[1]For clarity and convenience, I refer in this judgment to Rado Nanut and members of his family by their given or preferred names. No disrespect is intended.

In his will, Rado appointed Maggie, Pia, James, and Lizzie as his executors and trustees. The will provided for the following dispositions:

(a) All Rado’s shares in the ‘Thycon Companies and any other companies’ were bequeathed to Pia and James in equal shares; and

(b) The residuary estate was to be divided into 100 parts and held on trust as to both capital and income as to:

(i) 50 parts to Maggie;

(ii) 12.5 parts each to Pia and James; and

(iii) 25 parts to Lizzie upon reaching the age of 30 years.

In addition to Rado’s estate, a company called Jampia Pty Ltd held assets including a property at Cape Schanck, as trustee for the Nanut Family Trust.

In February 2005, Maggie applied for a grant of probate of the will. The inventory filed with her…

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 Nanut; Nanut v Nanut

Details

AGLC: Re Nanut; Nanut v Nanut [2024] VSC 212
Case: [2024] VSC 212
Decision Date: 6 May 2024

CaseChat Overview and Summary

In the matter of Re Nanut; Nanut v Nanut, the Victorian Supreme Court considered an application for the grant of probate. The dispute involved a deceased person's will, where the plaintiff, Nanut, sought to be recognised as an executor, contrary to the existing grant of probate to the defendant, who was already named as an executor. The plaintiff had mistakenly believed she was entitled to be a proving executor. The court was required to determine whether the plaintiff should be passed over despite her belief.

The legal issues at hand involved the interpretation of the will and the application of relevant statutory provisions concerning probate and executors. The court needed to ascertain whether the plaintiff's mistaken belief about her entitlement to be a proving executor justified altering the existing grant of probate. This required consideration of precedents such as Re Munro [2018] VSC 747 and O’Halloran v Coffey (No 2) [2023] VSC 51.

The court carefully examined the will and the circumstances surrounding the grant of probate. It concluded that the existing grant of probate to the defendant, as one of four named executors, was valid and should not be disturbed by the plaintiff's mistaken belief. The court held that the plaintiff's mistaken belief did not entitle her to be passed over as an executor. The court's reasoning was influenced by the principle that a mistake in belief does not affect the validity of the grant of probate. Therefore, the court decided not to alter the existing grant of probate.

The final orders confirmed the grant of probate to the defendant, recognising him as one of the executors as per the will. The plaintiff's application was dismissed, and she was not passed over as an executor. The court's decision underscored the importance of adhering to the terms of the will and the validity of the existing grant of probate.

Orders