Sampson v Charleton - [2022] VSC 597

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S ECI 2021 03828

IN THE MATTER of the Will and Estate of MAVIS MARTHA CHARLETON (deceased)

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IN THE MATTER of section 34 of the Administration and Probate Act 1958 and sections 48 and 51 of the Trustee Act 1958

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IN THE MATTER of section 65A of the Administration and Probate Act 1958

BETWEEN:

PIPPA ROSALIND SAMPSON (in her capacity as Executrix of the Will and Estate of GORDON BARRY CHARLETON (deceased))	Plaintiff
v
ROBYN GAYE CHARLETON (who is sued in her capacity as Executrix of the Will of MAVIS MARTHA CHARLETON (deceased))	Defendant

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2022
DATE OF JUDGMENT:	6 October 2022
CASE MAY BE CITED AS:	Sampson v Charleton
MEDIUM NEUTRAL CITATION:	[2022] VSC 597

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ADMINISTRATION AND PROBATE — Application by beneficiary under s 34 of the Administration and Probate Act 1958 (Vic) — Application for removal of executor — Meaning of “unfit” — Paramount consideration of the welfare of beneficiaries — Dimos v Skaftouros (2004) 9 VR 584 referred to and applied — Protection of beneficiaries of estate — Hostile attitude of executor to legal personal representative of one beneficiary — Unreasonable conduct of executor — Antagonism and animosity of executor towards beneficiary — Richard v Johnson [2018] VSC 85 referred to and applied — Executor removed and independent administrator appointed.

COSTS — Application for orders to release of funds transferred to solicitor’s trust account pursuant to orders made in a separate proceeding — Power to make orders in subsequent proceeding where parties have a liberty to apply in original proceeding — Application should be made in original proceeding.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Mah	GE Law Services
The Defendant in person

HER HONOUR:

Introduction and background

These reasons concern an application by the plaintiff, Ms Pippa Sampson, a solicitor and the executor of the estate of Gordon Barry Charleton (‘Barry’) to, among other things, remove the defendant, Ms Robyn Charleton, Barry’s younger sister (‘Ms Charleton’), as the executor of the estate of their late mother, Mavis Charleton (‘estate’). Mavis Charleton died in January 1999, while Barry died in January 2019. Two other siblings, John Charleton and Brian Charleton, are also now deceased, along with their youngest sibling, Peter, who died as an infant. Mavis’ will of 3 March 1994 provided that her estate be divided equally between the five children living at the time of her death.

The dispute between Ms Sampson and Ms Charleton arises as a consequence of the fact that, at the time of her death, the major asset of the estate was Mavis’ beneficial interest in a rural-residential property located in Healesville (‘Healesville property’). Barry was, prior to his death, the registered proprietor of the Healesville property, but by a deed made in June 1993 (‘deed’), Barry declared that he held a two-thirds…

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 Sampson v Charleton

Details

AGLC: Sampson v Charleton [2022] VSC 597
Case: [2022] VSC 597
Decision Date: 6 October 2022

CaseChat Overview and Summary

The case of Sampson v Charleton involved an application by a beneficiary under section 34 of the Administration and Probate Act 1958 (Vic) for the removal of an executor. The dispute centred around the fitness of the executor, the meaning of “unfit” in this context, and the paramount consideration of the welfare of beneficiaries. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the executor was unfit to continue in their role, considering their conduct towards a beneficiary and the legal personal representative of another beneficiary. The court considered the meaning of “unfit” and whether the executor’s antagonistic and unreasonable behaviour towards the beneficiaries justified their removal. The court referred to the case of Dimos v Skaftouros (2004) 9 VR 584, which emphasised the paramount consideration of the welfare of beneficiaries, and Richard v Johnson [2018] VSC 85, which highlighted the importance of protecting beneficiaries from hostile executors.

The court found that the executor’s conduct amounted to being unfit, based on their antagonistic attitude, animosity, and unreasonable behaviour towards the beneficiaries. The court emphasised that the paramount consideration was the welfare of the beneficiaries and that the executor's actions were detrimental to this. Consequently, the executor was removed, and an independent administrator was appointed. The court also noted that any application for the release of funds should be made in the original proceeding, not in a subsequent one.

The final orders of the court were that the executor be removed and an independent administrator appointed in their place. The court also indicated that any application for the release of funds should be made in the original proceeding.

Orders