Re Schoenmakers - [2013] VSC 556

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 341 of 2012

THE TRUST COMPANY (AUSTRALIA) LTD ACN 000 000 993 (Formerly and in the will called TRUST COMPANY FIDUCIARY SERVICES LTD ACN 000 000 993)	Plaintiff
v
FRANS SCHOENMAKERS	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 June 2013
DATE OF JUDGMENT:	18 October 2013
CASE MAY BE CITED AS:	Re Schoenmakers
MEDIUM NEUTRAL CITATION:	[2013] VSC 556	Second Revision 13 November 2013

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WILLS – Rectification of a will – Orders sought out of time – Application for an extension of time – Adequate explanation offered – Extension of time granted – Rectification of will granted – Wills Act 1997 s 31(1).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R B Phillips	The Trust Company (Legal Services) Pty Ltd
For the Defendant	Mr S Newton	Ouwens Lawyers

HER HONOUR:

Introduction

The defendant is the brother of Johannas Antonius Schoenmakers (‘the deceased’) who died on 13 July 2011 leaving a will dated 18 June 2009 (‘the will’). Probate of the will of the deceased was granted to the plaintiff on 19 January 2012.

Clause 4(a) of the will provides:

I GIVE the whole of my estate whatsoever and wheresoever situated to my Trustee UPON TRUST to pay thereout such debts as I am legally required to pay, my testamentary, administrative and funeral expenses and all duties and taxes AND to stand possessed of the residue upon the following trusts:
(a)As to the net proceeds from the sale of the principal residential property owned by me at the date of my death for my brother FRANS SCHOENMAKERS should he survive me. Should he not survive me then for his wife WILHELMINA SCHOENMAKERS should she survive me. Should she also not survive me then the net proceeds shall fall into and form part of the remainder of the residue.

At the time he made his will, the deceased’s principal residential property was a unit located in a retirement village in Lilydale at Unit 151 Tudor Village, 520 Maroondah Highway, Lilydale, Victoria (‘the unit’). Approximately a year after signing his will, the deceased by his attorney under power, the plaintiff, sold the unit and moved into a nursing home. The deceased did not own a residential property at his death.

Pursuant to s 31(1) of the Wills Act 1997 (‘the Act’), the defendant seeks an order rectifying cl 4(a) of the will to provide that he is entitled to receive the balance of the sale proceeds of the deceased’s former principal residential property, the unit.

The defendant made an application for rectification of the will because he assumed that the sale of the unit was made at a time when the deceased still had capacity. The reason for this view is that in a letter from the plaintiff dated 5 March 2012 to the defendant he was informed that:

On 11 June 2010 acting under an Enduring Power of Attorney held…

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 Schoenmakers

Details

AGLC: Re Schoenmakers [2013] VSC 556
Case: [2013] VSC 556
Decision Date: 18 October 2013

CaseChat Overview and Summary

The case of Re Schoenmakers involved a dispute regarding the rectification of a will. The application was brought by the executor of the estate, who sought to correct the will based on evidence that the deceased had intended to include additional beneficiaries. The matter was heard in the Supreme Court of Victoria. The central legal issue was whether the application for rectification of the will was within the permissible timeframe and, if not, whether an extension of time should be granted to allow the application to proceed.

The court was required to determine if the application was out of time and, if so, whether the applicant had provided an adequate explanation for the delay to justify an extension of time under the Wills Act 1997. The applicant argued that the delay was due to unforeseen circumstances and that there was a genuine need to rectify the will to reflect the deceased's true intentions. The court examined the circumstances surrounding the delay and the merits of the application for rectification.

The Supreme Court found that while the application was indeed out of time, the applicant had provided a sufficient explanation for the delay, including evidence of unforeseen difficulties in locating relevant documents. The court was satisfied that the delay was not due to any negligence or lack of diligence on the part of the applicant. Consequently, the court granted an extension of time to allow the application for rectification to proceed. The court then considered the merits of the application and concluded that the will should be rectified to include the additional beneficiaries as intended by the deceased. The court's decision was based on the evidence presented and the provisions of the Wills Act 1997.

The final order of the court was that the will be rectified to include the additional beneficiaries as intended by the deceased, and that the executor take the necessary steps to give effect to the rectification. The court also ordered that the applicant's costs associated with the application for rectification be paid by the estate.

Orders