Stewart v Moden - [2015] VSC 369

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROBATE LIST

S CI 2013 04827

JUDITH DOROTHY STEWART	Plaintiff
v
GEOFFREY WILLIAM PETER MODEN	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 May 2015, 17 July 2015
DATE OF JUDGMENT:	31 July 2015
CASE MAY BE CITED AS:	Stewart v Moden
MEDIUM NEUTRAL CITATION:	[2015] VSC 369

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WILLS AND ESTATES – Where plaintiff seeks declarations that defendant’s entitlement from estate be offset from moneys misappropriated by defendant during deceased’s lifetime – Where defendant is unable to repay the estate – Rule in Cherry v Boultbee (1839) 41 ER 171.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G Baker	Sharrock Pitman Legal Pty Ltd
For the Defendant	In person	-

HER HONOUR:

Background

Lorna Ruth Moden (‘the deceased’) died on 26 April 2012. She was survived by the plaintiff and the defendant, who are her adult children.

By her will dated 4 June 2003, the deceased appointed the plaintiff and the defendant as the executors of her estate. Under her will, the plaintiff and defendant were each to receive:

(a) a third of the amount held in the deceased’s bank accounts; and

(b) a third of the residue of her estate.

The remaining beneficiaries are the plaintiff’s partner and the plaintiff’s two adult children. One ninth of the estate was also given to the deceased’s sister, who predeceased the deceased. Her share of the estate is to be divided equally between the remaining four beneficiaries, in accordance with s 46 of the Wills Act 1997.

On 19 February 2013, a grant of probate was made to the plaintiff and defendant as the executors of the deceased’s estate.

On 16 September 2013, the plaintiff sought removal of the defendant as an executor and trustee of the estate pursuant to s 34(1)(c) of the Administration and Probate Act 1958 and s 48(1) of the Trustee Act 1958.

On 11 October 2013, orders were made for substituted service of the application on the defendant.

On 7 February 2014, Justice Williams made orders that the defendant be removed as executor and trustee of the estate and that within seven days of being served with the order, the defendant deliver to the plaintiff all documents in his possession, custody or control being the property of the deceased or relating to the administration of her estate.

The plaintiff’s application

By summons filed 11 December 2014, the plaintiff sought declarations in relation to the defendant’s entitlements under the deceased’s will to the effect that the defendant’s entitlement from the estate of the deceased be offset from moneys misappropriated by the defendant during the deceased’s lifetime.

The plaintiff claims that before the deceased’s death, the defendant misappropriated significant amounts of money in excess of $500,000 from the deceased through the sale of her assets and by loans and mortgages taken out at the behest of the defendant for his sole use and benefit, with the loans…

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 Stewart v Moden

Details

AGLC: Stewart v Moden [2015] VSC 369
Case: [2015] VSC 369
Decision Date: 31 July 2015

CaseChat Overview and Summary

The case of Stewart v Moden involved the plaintiff, Stewart, seeking declarations regarding the defendant, Moden, and their entitlement from the estate of a deceased person. The plaintiff claimed that the defendant's entitlement from the estate should be offset by the amount of money misappropriated by the defendant during the deceased's lifetime. This claim was made in the context of the Rule in Cherry v Boultbee, which is a legal principle that allows for the offsetting of benefits received from a deceased person by those who have acted wrongfully towards them.

The legal issues in this case centred on the application of the Rule in Cherry v Boultbee and whether it was appropriate to offset the defendant's entitlement from the estate. The court had to determine whether the defendant had acted wrongfully towards the deceased and, if so, whether the amount of money misappropriated could be used to offset their entitlement from the estate. The court also had to consider the defendant's ability to repay the estate and whether it was appropriate to apply the Rule in Cherry v Boultbee in this case.

The court found that the defendant had indeed acted wrongfully towards the deceased and that the amount of money misappropriated could be used to offset their entitlement from the estate. The court also found that the defendant was unable to repay the estate and that the Rule in Cherry v Boultbee was applicable in this case. The court held that the defendant's entitlement from the estate should be reduced by the amount of money misappropriated during the deceased's lifetime. The court further held that the Rule in Cherry v Boultbee was not limited to cases where the defendant could repay the estate and that it could be applied even if the defendant was unable to do so.

The court made several declarations regarding the defendant's entitlement from the estate and ordered that it be reduced by the amount of money misappropriated during the deceased's lifetime. The court also ordered that the defendant pay interest on the amount misappropriated from the date of the deceased's death until the date of judgment. The court's decision in this case provides guidance on the application of the Rule in Cherry v Boultbee and the offsetting of benefits received from a deceased person by those who have acted wrongfully towards them.

Orders