State Trustees Ltd v Wheeler - [1998] VSC 115

SUPREME COURT OF VICTORIA

CAUSES JURISDICTION

Not Restricted

No. 6783 of 1997

STATE TRUSTEES LTD. Plaintiff
v

NORMA INVERMAY WHEELER and ANOR Defendants

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JUDGE: HEDIGAN, J.
WHERE HELD: Melbourne
DATE OF HEARING: 28 September 1998
DATE OF JUDGMENT: 22 October 1998
CASE MAY BE CITED AS: State Trustees Ltd. v. Wheeler & Ors.
MEDIA NEUTRAL CITATION: [1998] VSC 115

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ADMINISTRATION AND PROBATE - Wills - Provision by will by way of specific gift of chattels to daughter - Beneficiary declining to respond to trustees' attempts to arrange delivery of chattels - Whether chattels should be sold.
TRUSTEES -Trustee Act 1958 s.63 - Whether Court should confer power of sale on trustees - No power of sale of specific legacy arising under will - Sale not ordered.

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APPEARANCES: Counsel Solicitors
For the Plaintiff Mr. R.R. Boaden State Trustees
For the First Defendant No appearance
For the Second Defendant Ms C. McOmish Lawson Hughes McComas

STATE TRUSTEES v. WHEELER

HEDIGAN, J.:

This proceeding is by way of originating motion and summons thereon concerning the will and estate of Invermay Walker, deceased. The motion is brought by State Trustees Ltd. as executor of the will and trustee of the estate of Invermay Walker. The defendants to the motion are Norma Invermay Wheeler, the daughter of Invermay Walker, deceased, and Geoffrey Stephen Wheeler, the son of Norman Invermay Wheeler. A daughter of Norma Invermay Wheeler, namely Diana Invermay Morrisby was, by way of an order of Master Kings, offered the opportunity to be joined as a defendant in the proceeding but did not avail herself of that opportunity. Notwithstanding that, Diana Morrisby purported to and did file affidavits in the proceeding to which I will subsequently refer. I will briefly summarize the mainstream facts concerning the proceeding. They are derived from a number of affidavits of Marina Paleologoudis, a solicitor employed by State Trustees Ltd.; an affidavit of Risto Dimitri Christou, another solicitor with the State Trustees; two affidavits of the second defendant Geoffrey Wheeler and affidavits of John Frederick Ainger, Alwyn Painter, Margaret Quin, Helen Seamer and David Hughes.
The late Invermay Walker died on 13th August 1996 aged 101 years. Her husband had died many years before and there was one child of the marriage, the first defendant Norma Invermay Wheeler. The evidence indicates that the late Invermay Walker had lived a remarkably fulfilled and active life up until the period not long before her death. She had lived in her own home in Kew. She is described in the affidavit of Mr. Alwyn Painter, who knew her for 40 years, as being "a dignified lady of high moral values possessing a strong character and being independent in nature and holding firm ideas about every aspect of life." It is apparent also from his affidavit and the affidavit of Mr. Ainger that she had over her lifetime been a collector of antiques and jewellery and in particular her porcelain. At some time in 1996, the late Mrs. Walker's…

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 State Trustees Ltd v Wheeler

Details

AGLC: State Trustees Ltd v Wheeler [1998] VSC 115
Case: [1998] VSC 115
Decision Date: 22 October 1998

CaseChat Overview and Summary

State Trustees Limited brought a proceeding against Ms Wheeler in relation to the administration of a deceased estate. The estate included a specific gift of chattels to the daughter of the deceased, Ms Wheeler. The trustees had been unable to contact Ms Wheeler to arrange for the delivery of the chattels. The trustees sought the court's permission to sell the chattels in lieu of delivery. The court was required to determine whether the court should confer the power of sale on the trustees in relation to the chattels.

The court considered the provisions of the Trustee Act 1958 and concluded that no power of sale of specific legacies arose under the will. The court found that section 63 of the Trustee Act 1958 did not provide the court with the power to confer a power of sale on the trustees in relation to specific legacies. The court was of the view that the trustees were not entitled to sell the chattels and declined to confer the power of sale on them.

The court made an order declining to confer the power of sale on the trustees in relation to the chattels. The court found that the trustees were not entitled to sell the chattels and that the beneficiaries were entitled to receive them. The court ordered that the trustees should make all reasonable efforts to contact Ms Wheeler and arrange for the delivery of the chattels.

Orders