Legal Research
Cases
Stegnjaic v Stegnjaic

Stegnjaic v Stegnjaic

Case [2019] NSWSC 1208 15 July 2019

Executors and administrators - Proceedings against executors and administrators – Application to remove the executor

Family provision and Maintenance - Failure by testator to make sufficient provision for applicant

Family Provision Order

Succession Law

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Stegnjaic v Stegnjaic [2019] NSWSC 1208
Hearing dates: 20, 21 June 2019
Date of orders: 19 July 2019
Decision date: 15 July 2019
Jurisdiction: Equity - Family Provision List
Before: Rein J
Decision:
1. Plaintiff’s application to remove the Defendant as executor is granted and the Defendant must account for any improper expenditure.
2. An administrator, Mr Terrence Hartmann, is to be appointed to administer the Estate.
3. The Plaintiff is entitled to a 50% share of the Estate pursuant to a family provision order under the Succession Act 2006 (NSW), as well as an ancillary order requiring the Estate properties to be sold and the proceeds distributed.

Catchwords:
SUCCESSION - Executors and administrators - Proceedings against executors and administrators – Application to remove the executor - Where the father’s Will left 50% to each of his two sons, but the elder son (the Defendant), who was the sole executor, was given discretion under the Will to postpone distribution of the Estate indefinitely; where the younger son (the Plaintiff) sought to have the Defendant removed as executor and made to account for improper management of the Estate finances; where the Plaintiff sought to have the Estate distributed on the basis of the “rule” in Saunders v Vautier – Held: Defendant removed as executor and made to account for improper expenditure, but the rule in Saunders v Vautier does not apply to real property and, in any event, the beneficiaries (being the two brothers) were not in agreement in calling for a distribution of the trust property.
SUCCESSION - Family provision and Maintenance - Failure by testator to make sufficient provision for applicant – Where the alleged failure was not the percentage afforded to the applicant under the Will but, rather, the discretion given to the executor to postpone distribution of the Estate indefinitely – Held: applicant entitled to 50% of the Estate pursuant to a family provision order under the Succession Act 2006 (NSW), as well as an ancillary order requiring the Estate properties to be sold and the proceeds distributed.

Legislation Cited: Perpetuities Act 1984 (NSW)
Succession Act 2006 (NSW)
Cases Cited: Bates v Messner (1967) 67 SR (NSW) 187
Beck v Henley [2014] NSWCA 201; (2014) 11 ASTLR 457
CPT Custodian Pty Ltd v Commissioner of State Revenue [2005] HCA 53; (2005) 224 CLR 98
Horton v Jones [1935] HCA 7; (1935) 53 CLR 475
Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76
Mavrideros v Mack [1998] NSWCA 286; (1998) 45 NSWLR 80
Official Receiver in Bankruptcy v Schultz [1990] HCA 45; (1990) 170 CLR 306
Re Estate of Colleen McCullough [2018] NSWSC 1126
Re Estate of Hodges (1988) 14 NSWLR 698
Saunders v Vautier (1841) Cr & Ph 240
Shorten v Shorten [No 2] [2003] NSWCA 60
Taylor v Farrugia [2009] NSWSC 801
Texts Cited: Geraint W. Thomas, Thomas on Powers (Sweet & Maxwell, 1998)
Category: Principal judgment
Parties: Sinisa Stegnjaic…

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 Stegnjaic v Stegnjaic

Details

AGLC: Stegnjaic v Stegnjaic [2019] NSWSC 1208
Case: [2019] NSWSC 1208
Decision Date: 15 July 2019

CaseChat Overview and Summary

Stegnjaic v Stegnjaic was a dispute in the Supreme Court of New South Wales involving the estate of a deceased father. The father's will provided for equal distribution of his estate between his two sons. However, the elder son, who was the sole executor, was granted discretion to indefinitely postpone distribution of the estate. The younger son, the plaintiff, sought the removal of the executor, an accounting for improper management of the estate finances, and distribution of the estate based on the "rule" in Saunders v Vautier.

The court was required to determine whether the plaintiff's request to remove the executor and compel an accounting was justified, as well as whether the "rule" in Saunders v Vautier applied to compel distribution of the estate. The court also had to decide whether the plaintiff was entitled to a family provision order under the Succession Act 2006 (NSW) due to the executor's discretion to indefinitely postpone distribution.

The court found that the executor's discretion to indefinitely postpone distribution was an abuse of power and ordered that he be removed as executor and required to account for improper expenditure. However, the court determined that the "rule" in Saunders v Vautier did not apply to real property and, in any event, the beneficiaries were not in agreement in calling for a distribution of the trust property. The court granted the plaintiff a family provision order, awarding him 50% of the estate, and an ancillary order requiring the estate properties to be sold and the proceeds distributed.

Orders