Telford v Telford - [2003] VSC 8

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 8325 of 2002

IN THE MATTER of s. 30 of the Settled Land Act 1958 and s. 48 of the Trustee Act 1958

and

IN THE MATTER of R54.02 of the General Rules of Procedure in Civil Proceedings 1996

and

IN THE WILL AND ESTATE OF WILLIAM GORDON TELFORD, deceased

CHRISTOPHER GORDON TELFORD

and

JANNIFER ANNE TELFORD (who is sued as executrix of the Will and Trustee of the Estate of William Gordon Telford, deceased)

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JUDGE:	Ashley J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 February 2003
DATE OF ORDER:	3 February 2003
CASE MAY BE CITED AS:	Telford v Telford
MEDIUM NEUTRAL CITATION:	[2003] VSC 8

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Will – application for appointment of co-trustee – application refused – prematurity – want of substance.

Trustee Act 1958, s. 48.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Morrison	Julian Teh
For the Defendant	Mr R. Boaden	Remington & Co

HIS HONOUR:

William Gordon Telford died on 17 October 2002. He left surviving him a widow, Jennifer, and four adult sons by a previous marriage...The will, dated 4 April 2002, is a simple one. The widow is the appointed executrix and trustee. After payment of debts and funeral expenses, the widow is to have one-fifth of deceased’s real property absolutely, a life interest in the remaining four-fifths thereof, and all his personal estate. The four sons are to take the four-fifths of his real estate in which the widow is given a life interest as tenants in common in equal shares on her death.

The deceased's estate is said to consist of a property of some 35 acres in two titles at Maldon, farming equipment and personal effects.

Whilst the material is incomplete, it seems that Probate has been granted but that administration is incomplete.

By originating motion filed 27 November 2002 Christopher Telford, one of deceased’s four sons by his first marriage, relevantly sought - "(1) an order pursuant to s.48 of the Trustee Act 1958, insofar as the same is necessary, that the plaintiff be appointed as a co-trustee of the Will and estate of the deceased… (3) Alternatively, an order that the defendant be directed to appoint an additional trustee pursuant to s.30 of the Settled Land Act 1958." [1] Consequential orders were also sought. I need not refer to them. The defendant, it must be self-evident, is the deceased's widow, sued as executrix of his Will and trustee of his estate.
[1]The claim raised by paragraph 3 of the Originating Motion was not pursued before me.

Affidavits have been sworn in support of the application by the plaintiff and his three brothers. Affidavits have been sworn in opposition by the defendant and the solicitor, Mr Heydon, who prepared the will to which I have referred. A good deal of material set out in the affidavit of the plaintiff and his brothers is of hearsay character. Mr Boaden of counsel for the defendant…

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 Telford v Telford

Details

AGLC: Telford v Telford [2003] VSC 8
Case: [2003] VSC 8
Decision Date: 3 February 2003

CaseChat Overview and Summary

The case of Telford v Telford was heard in the Supreme Court of Victoria. The dispute between the parties involved a will and the administration of a trust. The applicant, seeking to be appointed as a co-trustee, was denied by the court due to the prematurity of the application and a lack of substance. The matter required the court to address the legal grounds upon which the application for co-trustee appointment could be assessed and whether the application was premature and lacked sufficient substance to warrant consideration.

The central legal issue before the court was whether the application for the appointment of a co-trustee was made prematurely and lacked the necessary substance to be considered. The court had to examine the provisions of the Trustee Act 1958, specifically section 48, to determine if the application met the criteria for a co-trustee appointment and whether it was appropriate to proceed at that stage in the trust administration. The court needed to balance the applicant's request against the procedural requirements and the current status of the trust.

The court found that the application for the appointment of a co-trustee was premature and lacked the necessary substance to warrant consideration. The applicant did not provide sufficient evidence or justification for the appointment at that stage, and the court deemed it inappropriate to proceed with the application. The court emphasized the importance of adhering to the provisions of the Trustee Act 1958 and the procedural requirements for appointing a co-trustee. Consequently, the application was refused, and the applicant was advised to resubmit the application when the circumstances of the trust administration warranted it.

The final orders of the court were that the application for the appointment of a co-trustee be, and was hereby, refused. The court further directed that the applicant consider resubmitting the application at a later stage, once there was a substantive basis and appropriate timing for such a request.

Orders