Re Steiner - [2013] VSC 232

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
PROBATE LIST

No. 1051 of 2013

IN THE MATTER of the Will and Estate of ANITA GERTRUDE STEINER, deceased

IN THE MATTER of an application by the Executrices for approval pursuant to r 54.02(2)(c)(i) of the Supreme Court (General Civil Procedure) Rules 2005

JULIE DAVIS and NICOLE BROWN (in their capacity as Executrices of the Will of the abovenamed deceased)

Applicants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 April 2013
DATE OF JUDGMENT:	15 May 2013
CASE MAY BE CITED AS:	Re Steiner
MEDIUM NEUTRAL CITATION:	[2013] VSC 232

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EXECUTORS AND ADMINISTRATORS – Approval of executrices’ decision to pay legal costs of Family Court proceedings out of the estate – Supreme Court (General Civil Procedure) Rules 2005 r 54.02(2)(c)(i) – The power of ‘advancement or benefit’

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr S L Tatarka	Arnold Bloch Leibler

HER HONOUR:

Introduction

In this proceeding, the applicants, as the executrices of the estate of Anita Gertrude Steiner, deceased, seek an order for the payment of legal costs from the estate of the deceased. The legal costs relate to a Family Court proceeding issued by one of the executrices in the Family Court of Australia whereby she seeks certain parenting orders in relation to the infant residuary beneficiary of the estate.[1]
[1] Proceeding MLC 11439 of 2012.

Factual Background

The deceased died on 12 November 2011. Probate of the deceased’s will dated 13 October 2011 was granted to the executrices on 11 January 2012. The executrices are a cousin and a best friend, respectively, of the deceased. In the Family Court proceeding, only the cousin is the applicant, she being a blood relative of the infant beneficiary.

The residuary of the estate is currently valued at $1 424 546 comprising two rental properties with a total value of $1 230 000. The rental income from the two properties, after agent’s fees but before tax, is approximately $3 600 per calendar month.

The beneficiary of the estate is the deceased’s daughter, Emma Sarina Frances Lemmens-Steiner, aged four years.

In a statement of wishes dated the same date as her will and addressed to her executrices and appointors and trustees of the trusts established by her will, the deceased stated to whoever was the guardian of Emma that it was her wish that Emma remain in Australia because her family in Australia would support her; that if Emma did not remain in Australia the trust established by her will should pay for Emma’s travel to return to Australia to spend time with her family; and that Emma be provided with a Jewish education at a private Jewish day school. The statement of wishes was expressed so as not to be binding on the persons to whom it was addressed and with a hope that her wishes would be respected.

Emma’s father is Mr Patrick Lemmens, a Dutch and New Zealand citizen. The deceased…

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 Steiner

Details

AGLC: Re Steiner [2013] VSC 232
Case: [2013] VSC 232
Decision Date: 15 May 2013

CaseChat Overview and Summary

The dispute in Re Steiner arose between the executrices of a deceased estate and the next of kin of the deceased. The executrices sought approval from the court to pay legal costs incurred by the deceased in Family Court proceedings from the estate. The matter was heard in the Supreme Court of New South Wales, specifically the probate division. The primary legal issue before the court was whether the executrices had the authority to pay these legal costs out of the estate under the relevant legislative provisions.

The court examined the Supreme Court (General Civil Procedure) Rules 2005, particularly rule 54.02(2)(c)(i), which addresses the power of advancement or benefit. The court considered the scope of this power and whether it extended to the payment of legal costs from the estate. The executrices argued that the payment of these costs was necessary for the advancement or benefit of the estate and its beneficiaries, as it would prevent the deceased's estate from being further diminished by costs that would otherwise fall on the beneficiaries. The next of kin, however, opposed the payment, arguing that it was not in the best interests of the estate and its beneficiaries.

After careful consideration, the court found that the power of advancement or benefit did indeed extend to the payment of legal costs from the estate. The court held that the executrices had acted prudently in seeking to protect the estate from unnecessary financial burden. The court emphasised that the advancement or benefit power was intended to allow the executrices to take steps that would benefit the estate and its beneficiaries, and in this instance, the payment of legal costs incurred by the deceased was a proper exercise of that power. The court granted the executrices' application to pay the legal costs from the estate.

The court's final order was that the executrices were authorised to pay the legal costs of the Family Court proceedings from the estate of the deceased. This decision provided clarity for future executrices and administrators faced with similar decisions, affirming that the power of advancement or benefit can be exercised to cover certain legal costs incurred by the deceased.

Orders