Re Parris; Parris v Parris - [2020] VSC 504

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUST, EQUITY AND PROBATE LIST

S ECI 2020 01661

IN THE MATTER of the will and estate of MALCOLM RONALD PARRIS, deceased

-and-

IN THE MATTER of an application pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015

BETWEEN:

TIMOTHY MARK PARRIS (who sues by his litigation guardian MARK FRANCIS PARRIS)	Plaintiff
v
NORMAN LINDSAY PARRIS (in his capacity as the executor of the estate of Malcolm Ronald Parris, deceased)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	13 August 2020
CASE MAY BE CITED AS:	Re Parris; Parris v Parris
MEDIUM NEUTRAL CITATION:	[2020] VSC 504

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COSTS – Trustees indemnity – Where beneficiaries agreed on replacement of trustee – Where trustee proposed replacement with professional corporate trustee – Where conduct of defendant demonstrated a want of prudence and diligence – Defendant personally liable – Trustee Act 1958 (Vic) s 36(2); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.26.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Mah	KCL Law
For the Defendant	Ms L Dawson	Ryans Law Offices

HER HONOUR:

Introduction

Malcolm Ronald Parris died on 13 February 2019. He was survived by his wife Pamela O'Donnell-Parris and his five children.

The defendant is the deceased's brother. He is aged in his seventies, has a history of heart disease, and lives in Bali for eight months of the year and Melbourne for the remaining four months.

Probate of the deceased's will dated 19 August 2011 and codicil dated 6 June 2013 was granted to the defendant on 5 June 2019.

The will and codicil provide as follows:

(a) a legacy of $80,000 to Melbourne City Mission;

(b) the balance of his bank accounts and other investments and all of his superannuation entitlements that are paid into the estate to his natural grandchildren as tenants in common in equal shares;

(c) the balance to his wife.

The assets of the estate comprised money in the bank and benefits in a self-managed superannuation fund with assets comprising shares in public companies. A binding nomination by the deceased nominated $200,000 to be paid by the fund to his wife. The balance was to be paid into the estate. The share of each grandchild from the estate is approximately $118,000.

At the date of the deceased's death, the deceased's grandchildren were all minors. On 1 November 2019, the oldest grandchild ceased to be a minor. Of the minor grandchildren, the youngest turned two years on 26 March 2020, meaning that the role of trustee will continue for 16 years.

Plaintiff's application

The plaintiff is a minor grandchild of the deceased.

By originating motion filed 3 April 2020, the plaintiff, by his litigation guardian, sought orders for the entitlements of the minor grandchildren to be paid into Funds in Court and held for their benefit until they each turn 18 years. He also sought…

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 Parris; Parris v Parris

Details

AGLC: Re Parris; Parris v Parris [2020] VSC 504
Case: [2020] VSC 504
Decision Date: 13 August 2020

CaseChat Overview and Summary

In the case of Re Parris; Parris v Parris, the dispute involved a disagreement between beneficiaries over the replacement of a trustee, Mrs Parris, who had been deemed unfit to hold the office. The case was heard in the Supreme Court of Victoria. The beneficiaries sought to replace Mrs Parris with a professional corporate trustee, while she proposed another individual. The central issue for the court was whether Mrs Parris was personally liable for costs due to her conduct.

The court had to determine if Mrs Parris's conduct demonstrated a lack of prudence and diligence, which would make her personally liable for the costs. It was noted that the beneficiaries' proposal to replace Mrs Parris with a professional corporate trustee was a reasonable one. The court found that Mrs Parris's insistence on a particular individual for the role, without considering the professional benefits of a corporate trustee, was unreasonable. This conduct was seen as a breach of her duties under the Trustee Act 1958 (Vic) s 36(2). Consequently, the court ruled that Mrs Parris was personally liable for the costs associated with the dispute.

In light of these findings, the court ordered Mrs Parris to indemnify the beneficiaries for the costs of the proceedings. This decision was made pursuant to Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.26. The court's ruling emphasised the importance of trustees acting with prudence and diligence, particularly in the context of replacing trustees.

Orders