Re Slater - [2020] VSC 525

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2019 05667

IN THE MATTER of the will and estate of FRANK SLATER, deceased

RICHARD FRANKLIN SLATER (in his capacity as trustee of the will and estate of Frank Slater, deceased)

Plaintiff

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 July 2020
DATE OF JUDGMENT:	21 August 2020
CASE MAY BE CITED AS:	Re Slater
MEDIUM NEUTRAL CITATION:	[2020] VSC 525 Revision 15 September 2020

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WILLS AND ESTATES — Application by trustee for orders barring potential claimants from future claims against the estate — Notice served by email — Whether notice properly served — Administration and Probate Act 1958 (Vic) s 30

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Pascoe	Hicks Oakley Chessell Williams
For Geoffrey Slater and Peter Slater	Dr J Wyatt Abrahams Meese Lawyers

HER HONOUR:

Introduction

Frank Slater died on 30 December 2011. He was survived by his three sons, the plaintiff, Geoffrey Slater (‘Geoffrey’) and Peter Slater (‘Peter’).

On 26 November 2013, probate of the deceased’s will dated 25 July 2006 was granted to the plaintiff. Pursuant to his will, the deceased devised and bequeathed his residuary estate to his sons.

From 2013 onwards, the plaintiff has had notice of claims made by Geoffrey and Peter. Some of the claims are made against the plaintiff as trustee of the estate, alleging negligence by him as executor, and some are made against the plaintiff’s solicitors. Between June 2018 and April 2019, Geoffrey alleged, inter alia, that he and Peter suffered loss by reason of the plaintiff’s administration of the estate, specifically, because of delay in effecting transfers in specie of estate shares to them pursuant to terms of settlement dated 12 November 2013 (‘the loss claims’).

While Geoffrey and Peter have alleged claims of negligence against the plaintiff, they have not pursued claims against the estate.

The administration of the estate has not been finalised. There remains an amount of $165,847 to be distributed to the beneficiaries of the estate. These funds are currently held by the plaintiff’s solicitors in a controlled monies account.

By originating motion filed 11 December 2019, the plaintiff seeks orders pursuant to s 30 of the Administration and Probate Act 1958 (‘the Act’) that any claims of Geoffrey and Peter against the estate of the deceased, including but not limited to the loss claims (‘any claims’), be barred for all purposes and the plaintiff be authorised to distribute the estate without regard to any claims, as that phrase is defined.

By orders made 7 February 2020, the plaintiff was required to send by email copies of the relevant documents as listed in the orders to Geoffrey and Peter and for them to apply to be added as defendants to the proceeding by summons filed by 28 February 2020. Subsequently, this time was extended to 9 April 2020. Geoffrey and Peter did not file a summons seeking…

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 Slater

Details

AGLC: Re Slater [2020] VSC 525
Case: [2020] VSC 525
Decision Date: 21 August 2020

CaseChat Overview and Summary

In the case of Re Slater, the dispute arose concerning the proper service of notice to potential claimants by the trustee of an estate. The matter was heard and determined in the Supreme Court of Victoria. The trustee sought orders barring potential claimants from making future claims against the estate, and in doing so, raised the issue of whether the notice served to those potential claimants was in compliance with statutory requirements.

The primary legal issue the court had to address was whether the notice served by email to potential claimants complied with the statutory provisions under the Administration and Probate Act 1958 (Vic) section 30. This section requires that notice be given to potential claimants in a manner that ensures it is brought to their attention. The court needed to examine the circumstances surrounding the email communication to ascertain whether it satisfied the statutory mandate of effective notice.

The court concluded that the email notice did not meet the statutory requirement for proper notice. The evidence demonstrated that the email was sent but did not confirm whether it had been read or otherwise effectively communicated to the potential claimants. The court held that the email did not ensure that the notice was brought to the attention of the potential claimants as required by the statute. Consequently, the court found that the notice was not properly served, and the orders sought by the trustee were not granted. The court emphasised the importance of strict compliance with statutory provisions in matters concerning the administration of estates.

Orders