State Trustees Limited v Wheeler
[2000] VSC 269
•27 June 2000
SUPREME COURT OF VICTORIA
COMMON LAW DIVISION
No. 6783 of 1997
| STATE TRUSTEES LIMITED | Plaintiff |
| v | |
| NORMA INVERMAY WHEELER and GEOFFREY STEPHEN WHEELER | Defendants |
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JUDGE: | HEDIGAN, J. | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 June 2000 | |
DATE OF JUDGMENT: | 27 June 2000 | |
CASE MAY BE CITED AS: | State Trustees Ltd. v. Wheeler & Ors. | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 269 | |
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Trustee Act (Vic) s.63 – Power of sale of chattels – Expedient to empower trustees to sell antique chattels – Refusal of beneficiary to accept testamentary dispositions.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | C. Sparke | State Trustees Ltd. Legal Branch |
| For the Defendant | No Appearance |
HIS HONOUR:
On 22 October 1998, on an originating motion by State Trustees Limited in this proceeding I made certain orders authorizing the plaintiff to attend to final distribution of the estate of Invermay Walker (deceased) subject to particular orders made by me concerning the firstnamed defendant's share of the residuary estate of the late Invermay Walker and with respect to specific bequests, substantially concerned with a valuable collection of porcelain, some jewellery and antiques.
It is not necessary for me to revisit what I then stated in my reasons reserved and delivered for making the orders which I did make. Essentially the difficulty had been, and has continued to be, the determination of Norma Invermay Wheeler, the first defendant, to have nothing to do with the residuary estate to which she was entitled nor its administration by State Trustees Limited. She has the same determination to ignore the specific bequests to which I have referred. As I said in the course of those reasons, Mrs Walker had neither accepted nor refused to accept the porcelain or other valuables and had completely failed to respond to all oral and written communications attempted to be made to and with her by State Trustees Limited concerning all of the matters over her entitlements to the estate of her late mother. As I said in those reasons, this attitude is likely conditioned by the combination of an unforgiving resentment in her as to certain steps taken towards her by her mother many decades ago and her apparent indifference in the eighth decade of her life to money and property. At that time I made orders that the reasonable costs of storage and insurance of the relevant chattels was to be met out of income accruing on the firstnamed defendant's share of the deceased Invermay Walker's residuary estate. I adjourned the further hearing of the proceeding for a period of not less than 18 months from the date of making those orders. I did this primarily to see whether the passage of a period of time of that extent may have revealed a different attitude in terms of responses or interest in the property on behalf of the first defendant. This has not proved to be the case. The affidavit of Mr R. Christou, the estate management officer employed by State Trustees who has control of this matter, indicates that nothing has changed. The only part of the estate of the late Invermay Walker remaining undistributed is the share held for the first defendant. Exhibit 1 to his affidavit indicates that there is presently held nearly $87,000 in cash and about $80,000 invested in secure Funds remaining undistributed. There is a small quantity of jewellery nominally valued at $1,732. Furniture and antiques, including the porcelain, are valued at some figure between $121,000 and $200,000.
It also appears that attempts to obtain instructions or elicit any response from the first defendant have proved to be unavailing. State Trustees Limited wishes to wind up the estate and conclude the distribution. Therefore, it presses for directions as to the disposition of the chattels including the porcelain in particular forming part of the estate of the deceased.
The gift of porcelain, not accepted by the first defendant, is a very substantial quantity and is as a consequence safely stored and insured. I have previously rejected any suggestion that it might be given to the first defendant to keep in her home, on a number of bases, including the risks it might pose to her and the collection, having regard to the general lack of security of that property. It would appear there is no likelihood of the first defendant doing anything other than maintain her complete indifference to the money and chattels, and the State Trustee's attempts to administer the estate that dealt with them.
As I had indicated on the previous occasion, the will itself contains no power of sale which could be used to sell the subject matter of the specific gifts. At that time Iaccepted there were certain attractions in making an order to confer a power of sale upon the trustee but thought that it may be premature to confer such a power. This was in part as a consequence of statements made by the grand-daughter of Invermay Walker and the daughter of the first defendant, Diana Invermay Morrisby, who, although not a party to the proceeding (having declined to be joined as a defendant) nevertheless filed material by way of affidavit. She has done so again and I have taken into account the matters to which she has referred, at least so far as they are relevant. It should be said that, as on the previous occasion, much of what Mrs Morrisby wished to put forward was concerned with her resentment, not to say dislike, of State Trustees Limited and of her brother.
Section 63 of the Trustee Act 1958 empowers this Court to confer upon trustees a power ... to sell property of the trust where it is "in the opinion of the court expedient, but the same cannot be effected by reasons of the absence of any power" .... Thus, without the conferring of this power, the trustees cannot sell the chattels. It is not necessary for me to articulate the effect of the authorities: see Riddell v. Riddell[1], and Re Baker[2]. Broadly speaking, if the Court considers that it is in the interest of the beneficiaries or the trust as a whole, or a desirable and suitable thing to do in the circumstances of the case, the power should be conferred. No consent of any beneficiary is required to any sale.
[1](1952) 85 C.L.R. 202.
[2][1961] V.R. 641.
I have reached the view that the Court should empower the trustees to sell the chattels, in particular the porcelain. The matter cannot be permitted to remain suspended indefinitely. It is not feasible to deliver the porcelain and antiques to the first defendant, who may possibly destroy or dispose of them. There is still a not inconsiderable risk that her long-term habit of leaving doors and windows open could lead to problems with the security of the chattels, and Mrs Wheeler's own safety. As at February 1998 the chattels were valued at about $150,000-$200,000 by Mr Ainger, an experienced appraiser and auctioneer. Mrs Wheeler receives a pension and has steadfastly refused to give instructions to State Trustees about what to do. The conversion of these chattels into money does offer some end to the issue and certainty for both trustee and beneficiary. It also removes the ongoing costs which might arise in respect to storage and insurance. Thus far, Aingers, who store the porcelain, have made no charge, probably in the expectation that they will recover some costs if they are the persons appointed to manage its sale. Some suggestion has been made by Mrs Morrisby from time to time that the value of the porcelain continues to rise, making the disposal of it imprudent rather than wise. However, Mr Christou's affidavit indicates that the cost of storing the estate porcelain and paintings is about $100 per month and insurance at about $500. More significantly, Mr Ainger has advised that the market for the items held on behalf of the estate for the first defendant has declined, continues to fall and that a better price would have been obtained if they were sold three years ago. The point appears to me to have been reached that some finality about this is desirable.
I do propose to make orders to empower the sale of the chattels. I make one suggestion (and it is not more than) concerning the jewellery and personal items referred to in paragraph 3 of Mr Christou's affidavit of 15 June 2000, nominally valued at a little over $1700. It would seem likely that most of those items were ladies jewellery, that is, of Mrs Morrisby's grandmother. Such matters often are of considerable sentimental value to female descendants and I construe Mrs Morrisby's affidavit as indicating something to that effect. It seems to me that the trustees would be carrying out their duty if they made a first offer for the purchase of those jewellery items to Mrs Morrisby.
Accordingly I order and declare as follows:
1.The Court declares that the power of sale contained in clause 4(a) of the will dated 5 November 1993 of the abovenamed deceased does not extend to the personal chattels the subject of the bequest contained in clause 2(b) of the will.
2.Pursuant to s.63 of the Trustee Act (Vic) 1958, the plaintiff as the trustee of the estate of Invermay Walker, deceased, have a power of sale of the specific chattels the subject of the bequest contained in clause 2(b) of the will.
3.Any proceeds of sale of the said chattels, after payment of the expenses of storage, insurance and sale and appropriate costs, fees and commission of the trustee, be held by the plaintiff upon trust for Norma Invermay Wheeler in accordance with the gift set out in clause 2(b) of the will.
4.The costs of this application and the costs of and incidental to this proceeding, including all reserved costs, be paid or retained out of Norma Invermay Wheeler's share of the estate of the deceased.
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