Re Stewart - [2020] VSC 737

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2020 02322

IN THE MATTER of the will and estate of STEVEN CHRISTOPHER JOHN STEWART, deceased

- and –

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

ROBERT WATSON STEWART (in his capacity as executor of the estate of STEVEN CHRISTOPHER JOHN STEWART, deceased)

Plaintiff

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JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	9 November 2020
CASE MAY BE CITED AS:	Re Stewart
MEDIUM NEUTRAL CITATION:	[2020] VSC 737

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WILLS AND ESTATES – Judicial advice – Foreshadowed claim for further provision from estate – Where two claims for further provision from estate have already been settled – Where terms of settlement state that settlement is contingent on no additional claims for further provision being brought – Whether correspondence foreshadowing claim invalidates terms of settlement between executor and claimants – Issue turns on construction of terms of settlement – Foreshadowed claim does not constitute a further claim and does not invalidate terms of settlement – Whether correspondence foreshadowing claim constitutes a notice of intention to make an application for a family provision order under the Administration and Probate Act 1958 – Where correspondence specifies the identity of the claimant, the estate, and that the claimant will make a claim under the Administration and Probate Act 1958 – Correspondence does constitute a notice of intention to make an application for a family provision order – Administration and Probate Act 1958 s 99A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Pitt	Saxby Lawyers

HIS HONOUR:

Introduction

Steven Christopher John Stewart (the deceased) died on 24 January 2019, leaving a will dated 1 October 1992 (the will). The plaintiff was granted probate of the will on 16 April 2019.

Since probate was granted, two of the deceased’s children commenced claims under Part IV of the Administration and Probate Act 1958 (the Act) against the estate of the deceased. These proceedings have been compromised and are subject to terms of settlement dated 19 November 2019. The deceased’s alleged de facto partner, Susan Rose,[1] who is not a beneficiary under the will, has corresponded with the plaintiff in relation to a potential claim against the estate. No proceeding has been issued to date.
[1]For clarity and without intending any disrespect, I will initially identify the deceased’s relatives by their full names and subsequently refer to them by their first names.

On 25 May 2020, the plaintiff commenced this proceeding pursuant to order 54 of the Supreme Court (General Civil Procedure) Rules2015, seeking judicial advice in respect of:

(a) a clause of the terms of settlement dated 19 November 2019, pertaining to any foreshadowed claims against the estate by Susan; and

(b) whether any of Susan’s correspondence with the plaintiff in relation to the estate constitutes a notice…

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.

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Details

Case: [2020] VSC 737
Decision Date: 9 November 2020

CaseChat Overview and Summary

The case of Re Stewart involved the estate of the deceased, and multiple parties interested in the distribution of the estate. The dispute centred on whether correspondence foreshadowing a potential claim for further provision from the estate invalidated a prior settlement agreement, and whether the correspondence constituted a notice of intention to apply for a family provision order under the Administration and Probate Act 1958. The matter was heard in the Victorian Supreme Court.

The primary legal issues were the interpretation of the terms of the settlement agreement and the applicability of the notice of intention requirements under the Administration and Probate Act 1958. The court had to determine whether the correspondence, which foreshadowed a claim, constituted an additional claim that would invalidate the settlement agreement, and whether the correspondence fulfilled the statutory requirement to provide a notice of intention to apply for a family provision order.

The court found that the correspondence did not constitute an additional claim that would invalidate the settlement agreement. The court held that the terms of the settlement agreement were clear and that the foreshadowed claim did not amount to a further claim within the meaning of the agreement. Additionally, the court held that the correspondence did constitute a notice of intention to apply for a family provision order under the Administration and Probate Act 1958. The correspondence specified the identity of the claimant, the estate, and the intention to make a claim under the Act, fulfilling the statutory requirements.

The court's decision clarified the requirements for notices of intention to apply for a family provision order and provided guidance on the interpretation of settlement agreements in the context of estate disputes. The court found in favour of the claimant, and the terms of the settlement agreement remained valid. The claimant was required to follow the statutory process for making a family provision order under the Administration and Probate Act 1958.

Orders