Re Valkenburg; Valkenburg v Valkenburg - [2019] VSC 550

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2018 00890

IN THE MATTER of the Estate of PETER JOHN VALKENBURG, deceased

-and-

IN THE MATTER of section 15 of the Administration and Probate Act 1958

BETWEEN:

CLAIRE PATRICIA VALKENBURG (who brings suit as an Executor of the Will of PETER JOHN VALKENBURG, deceased)	Plaintiff
v
TIMOTHY MAX VALKENBURG and KATRINA VALKENBURG (who are sued as the substituted Executors of the Will of PETER JOHN VALKENBURG)	Defendants

---

JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	16 August 2019
CASE MAY BE CITED AS:	Re Valkenburg; Valkenburg v Valkenburg
MEDIUM NEUTRAL CITATION:	[2019] VSC 550

---

PRACTICE AND PROCEDURE — Jurisdiction — Plaintiff’s application for defendants to show cause why they should not prove will in Victoria — Administration and Probate Act 1958 (Vic) ss 6, 15 — Location of shares — Kadac Pty Ltd v Complete Health Products Pty Ltd [2015] VSC 613.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D J Sanders	Suzanne Jones Lawyers
For the Defendant	Ms R Grayson Morison	Pure Legal

HER HONOUR:

Introduction

The deceased, Peter John Valkenburg, died on 5 August 2016. His will dated 19 April 2015 appoints the plaintiff and John James Watson as his executors. The will provides that if either the plaintiff or Mr Watson refuses or is unable or unwilling to act or continue to act as executor then the defendants are appointed jointly in that person’s place. Mr Watson refused to act as executor, with the result that the plaintiff and the defendants are now co-executors of the will.

Mr Watson is a principal of the legal firm Fishburn Watson O’Brien (‘FWO’) and holds the deceased’s original will.

Plaintiff’s application

By originating motion filed 13 March 2018, the plaintiff sought an order under s 15 of the Administration and Probate Act 1958 (‘the Act’) that the defendants show cause why they should not bring the deceased’s will into court.

The defendants resist the application on the ground that New South Wales is the appropriate jurisdiction for the grant of probate.

Factual background

The plaintiff is 73 years old. She was the deceased’s fourth wife. At the time of the deceased’s death, she and the deceased had been married for some 22 years. She had retired from paid employment to care for the deceased full-time and continues to live in the marital home in Camberwell.

The defendants are children of an earlier relationship of the deceased and live in Bali, Indonesia.

The principal assets of the estate are shares in Mewval Holdings Pty Ltd (‘Holdings’) and Mewval Investments Pty Ltd (‘Investments’), personal property in Victoria and money in a bank account. Before his death, the deceased had controlled Holdings and Investments. The shares in Investments are divided into five different classes.

Clauses 4.1 and 5.4 of the will bequeath each of the defendants $50,000, adjusted by inter vivos…

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 Valkenburg; Valkenburg v Valkenburg

Details

AGLC: Re Valkenburg; Valkenburg v Valkenburg [2019] VSC 550
Case: [2019] VSC 550
Decision Date: 16 August 2019

CaseChat Overview and Summary

In the Family Court of Australia, Re Valkenburg; Valkenburg v Valkenburg involved a dispute regarding the validity of a will and the jurisdiction of the court to hear the matter. The case revolved around the application of the Administration and Probate Act 1958 (Vic) and the location of shares of a company. The legal issues before the court were whether the court had jurisdiction to hear the case and whether the defendants should be compelled to prove the will in Victoria.

The court examined the jurisdictional provisions of the Administration and Probate Act 1958 (Vic) and considered the precedent set by Kadac Pty Ltd v Complete Health Products Pty Ltd [2015] VSC 613. The court found that the application of the jurisdictional provisions was not contingent on the location of the shares of the company. Consequently, the court determined that it had jurisdiction to hear the matter and ordered the defendants to prove the will in Victoria. The court's decision was based on the principle that the location of assets does not determine the jurisdiction of the court in matters concerning the validity of a will.

Orders