Robbins v Hume - [2015] VSC 128

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROBATE LIST

S CI 2015 00300

DEBRA ROBBINS	Plaintiff
v
JAMES ALEXANDER HUME (who is sued personally and as the executor of the will of ALEXANDER DAVID HUME, deceased)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 March 2015
DATE OF JUDGMENT:	10 April 2015
CASE MAY BE CITED AS:	Robbins v Hume
MEDIUM NEUTRAL CITATION:	[2015] VSC 128

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WILLS AND ESTATES — Application by plaintiff to amend summons to seek leave to extend time within which to make a family provision claim — Where estate has been finally distributed — No jurisdiction to extend time where estate finally distributed — Application for leave to amend refused — Administration and Probate Act 1958, s 99

INJUNCTION — Where plaintiff alleges executor of the estate is in breach of fiduciary duty to safeguard her interests and his duty of even-handedness to her — Where plaintiff alleges sale proceeds of specific devise to defendant under the deceased’s will now held on constructive trust for the estate — Application by plaintiff for an injunction restraining the defendant from dealing in any way with the sale proceeds of the devise to the defendant — Where estate finally distributed — Where plaintiff seeks dispensation from undertaking as to damages

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms C McOmish	Arnold Thomas Becker
For the Defendant	Mr M McKenzie	McDonald Slater & Lay

HER HONOUR:

Factual background

Alexander David Hume, deceased, died on 7 June 2013 leaving a will dated 28 May 2010. Probate of his will was granted to his executor, the defendant, on 30 August 2013.

The value of the estate of the deceased at the date of his death was $741,593 comprising the deceased’s property at 70 Boronia Road, Vermont (‘the Vermont property’) valued at $600,000 and his personal estate of $141,593.

By his will, the deceased left his Vermont property to the defendant and his personal estate equally between his five daughters.

After payment of expenses, the estate of the deceased was distributed with each of the five daughters receiving $28,228.20 in mid April 2014 and the defendant receiving the sale proceeds of the Vermont property in June 2014.

The plaintiff’s application

By summons filed 2 March 2015, the plaintiff, who is a daughter of the deceased, sought an order restraining the defendant from disposing of or dealing with or diminishing the net sale proceeds of the Vermont property.

Her application was supported by an affidavit sworn by her on 13 February 2015 and an affidavit of her friend and carer, Jeffrey Robert Peagram, sworn 25 March 2015.

At the hearing, the plaintiff sought leave to amend her summons by seeking an order, pursuant to s 99 of the Administration and Probate Act 1958 (‘the Act’), that the time within which she be permitted to commence an application for provision out of the estate of the deceased be extended.

The plaintiff explained her…

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 Robbins v Hume

Details

AGLC: Robbins v Hume [2015] VSC 128
Case: [2015] VSC 128
Decision Date: 10 April 2015

CaseChat Overview and Summary

Robbins and Hume were parties to an application in which the former sought to amend a summons to extend the time within which to make a family provision claim. The case was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether the plaintiff had the right to extend the time within which to make a family provision claim, given that the estate had already been finally distributed. Additionally, the court had to determine if there was a basis to grant an injunction to the plaintiff, who alleged that the executor of the estate had breached a fiduciary duty and his duty of even-handedness to her. The plaintiff also sought to restrain the defendant from dealing with the sale proceeds of a specific devise to the defendant under the deceased's will.

The court found that, pursuant to the Administration and Probate Act 1958, section 99, there was no jurisdiction to extend the time within which to make a family provision claim once the estate had been finally distributed. The court reasoned that the final distribution of the estate concluded the court's jurisdiction over the matter, and thus, the plaintiff's application to amend the summons was refused. Regarding the injunction, the court noted that since the estate had been finally distributed, the plaintiff could not obtain dispensation from the usual undertaking as to damages. Consequently, the plaintiff's application for an injunction was also dismissed.

Ultimately, the court refused both the plaintiff's application to amend the summons and her application for an injunction. The court held that the final distribution of the estate precluded any further claims or injunctions against the defendant concerning the estate or its proceeds. The plaintiff's attempts to extend the time for a family provision claim and to restrain the defendant from dealing with the sale proceeds were unsuccessful.

Orders