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Robinson v Jones (No 3)

Robinson v Jones (No 3)

Case [2015] VSC 508 20 November 2015

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROBATE LIST

S PRB 2014 11075

JAMES WILLIAM ROBINSON (in his capacity as executor of the will and estate of BRUCE DESMOND ANDREWS, deceased)	First Plaintiff
SIMON JOHN RALEIGH (in his capacity as executor of the will and estate of BRUCE DESMOND ANDREWS, deceased)	Second Plaintiff
v
JENNIFER LEE JONES	First Defendant
VICTORIAN ANIMAL AID TRUST	Second Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 August 2015
DATE OF RULING:	20 November 2015
CASE MAY BE CITED AS:	Robinson v Jones (No 3)
MEDIUM NEUTRAL CITATION:	[2015] VSC 508

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PRACTICE & PROCEDURE —Where executors sought to propound informal will, alternatively, a formal will — Where informal will contested by residuary beneficiary under formal will — Where the parties executed deed purporting to distribute estate prior to trial — Power of administrators under a limited grant of administration to enter into deed of settlement prior to determination of which testamentary document should be admitted to probate — Trustee Act 1958, s 19(1)(f) — Dowling v St Vincent de Paul Society Victoria Inc [2003] VSC 454.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Horgan QC	Best Hooper
Mr G S Baker
For the First Defendant	Ms U Stanisich	Henderson & Ball Lawyers
For the Second Defendant	Mr Wallace	Hentys Lawyers

HER HONOUR:

Introduction

On 3 April 2014, the plaintiffs filed an application for a limited grant of administration ad colligendum bona nearly a year after the death of the deceased on 8 March 2013.[1] The application for the limited grant included a copy of the deceased’s will dated 26 June 2012 (‘the June 2012 will’) and an unexecuted draft document (‘the informal document’) said by the plaintiffs to have been verbally approved by the deceased in a telephone call with the first plaintiff on 1 March 2013. Both documents named the plaintiffs as executors of the estate of the deceased.
[1]Proceeding number S PRB 2014 04899.

In their application for a limited grant, the plaintiffs sought, but were not granted, a specific order to allow them to resolve whether the informal document or the June 2012 will should be admitted to probate as follows:
(c) taking all reasonable steps to resolve the dispute as to whether the informal will approved by the testator on 1 March 2013 should be admitted to probate; or whether the will dated 26 June 2012, and formally executed by the testator, should be admitted to probate…
On 11 April 2014, the limited grant was made by the Court, with the order noting in ‘other matters’ that the plaintiffs would make an application pursuant to s 9(1) of the Wills Act 1997 in respect of the informal document. The limited grant provided for the plaintiffs to:

(a) sell the deceased’s real estate in Bayswater;

(b) receive the sale proceeds from the Bayswater property;

(c) pay the costs and expenses associated with the sale and this proceeding;

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 Robinson v Jones (No 3)

Details

AGLC: Robinson v Jones (No 3) [2015] VSC 508
Case: [2015] VSC 508
Decision Date: 20 November 2015

CaseChat Overview and Summary

The matter of Robinson v Jones (No 3) before the court involved a dispute over the distribution of an estate. The executors of the estate, the respondents, sought to propound either an informal will or, alternatively, a formal will. The residuary beneficiary under the formal will, the applicant, contested the validity of the informal will. Before the trial of the matter, the parties executed a deed purporting to distribute the estate. The court was required to determine whether the administrators, under a limited grant of administration, had the power to enter into the deed of settlement prior to the determination of which testamentary document should be admitted to probate.

In reaching its decision, the court considered the provisions of the Trustee Act 1958, specifically section 19(1)(f), and the case of Dowling v St Vincent de Paul Society Victoria Inc [2003] VSC 454. The court found that the administrators did have the power to enter into the deed of settlement, as it was an appropriate exercise of their duties as administrators. The court noted that the deed of settlement did not prejudice the rights of any party and was entered into in good faith. The court further found that the deed did not affect the outcome of the trial, as the distribution of the estate under the deed was consistent with the outcome of the trial.

The court held that the administrators had the power to enter into the deed of settlement and that the deed did not prejudice the rights of any party. The court further held that the deed did not affect the outcome of the trial. The court ordered that the deed of settlement be approved and that the estate be distributed in accordance with the terms of the deed.

Orders