JUDGE:	Keith JR
WHERE HELD:	Melbourne
DATE OF HEARING:	28 January 2022
DATE OF JUDGMENT:	14 April 2022
CASE MAY BE CITED AS:	Thomson v Thomson
MEDIUM NEUTRAL CITATION:	[2022] VSC 194

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PRACTICE AND PROCEDURE – Application by plaintiff for grant of probate – Application by caveators for executor to be passed over – Caveators do not challenge will’s validity – When may an executor be passed over, where will is valid? – Power to pass over dependant on overall assessment of circumstances – Mere conflict of interest or duty by executor insufficient – Testator’s choice of executor not lightly put aside – Prima facie test requires caveators demonstrate grounds which justify putting aside the testator’s intention – Plaintiff evidences understanding of duties as executor and willingness to undertake these –VCAT proceedings the proper vehicle to review the plaintiff’s conduct as deceased’s power of attorney – Power to pass over is to prevent the grant of probate being: unjust; inefficacious, obstructed or abused – Deceased’s choice of executor was considered, deliberate and made with an understanding of the parties’ disputes – Grounds of passing over not made prima facie – Caveats ceasing to have effect do not deprive the beneficiaries of entitlement to seek Court’s supervision to protect their interests – Nothing to suggest the plaintiff would not duly administer the estate or its interests – The caveats filed cease to have effect – Plaintiff’s application referred to the Registrar of Probates.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms M Rozner
For the Caveator	Ms A Bartfeld	KHQ Lawyers

JUDICIAL REGISTRAR:

On 28 January 2022, I made orders in this proceeding after hearing submissions from the parties. Below are my reasons for these orders.

Background and Procedural History

Raymond James Moffat Thomson (“the deceased”) died on 25 December 2020. He is survived by two daughters, Catherine Tracy Thomson and Kerryn Rae Thomson, who are the caveators in this proceeding.

The plaintiff is a brother of the deceased and has applied for a grant of probate of the last will of the deceased, made on 25 January 2017.

The plaintiff filed his Originating Motion on 30 June 2021, accompanied by the usual supporting affidavit.

A caveat was lodged on 18 January 2021, with a further caveat lodged 25 June 2021. Additionally, Grounds of objection were filed by the caveators on 12 August 2021, with Amended grounds of objection filed 15 October 2021. The caveators have also each filed affidavits sworn 29 October 2021 (referred to as “Kerryn’s affidavit” and “Catherine’s affidavit” for ease of differentiation).

The plaintiff has filed a further affidavit, with accompanying exhibits, sworn 19 November 2021. The plaintiff also relies on an affidavit of Mr Matthew Bryan Weeks, a former employee in the business operated by the deceased, through a…

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 Thomson v Thomson

Details

AGLC: Thomson v Thomson [2022] VSC 194
Case: [2022] VSC 194
Decision Date: 14 April 2022

CaseChat Overview and Summary

The case of Thomson v Thomson involved a dispute over the grant of probate, with the plaintiff, who was also the nominated executor in the deceased’s will, facing opposition from other interested parties. The matter was heard in the Victorian Civil and Administrative Tribunal (VCAT). The key issue was whether the executor should be passed over, despite the will being valid, and the circumstances under which this could occur. The tribunal needed to determine the legal standards for passing over an executor and assess the evidence presented by the plaintiff and the caveators.

The legal issues before the tribunal included the circumstances in which a court could override a testator's choice of executor, the burden of proof on those seeking to pass over the executor, and the role of VCAT in reviewing the plaintiff's conduct as the deceased’s power of attorney. The tribunal considered whether the mere existence of a conflict of interest or duty was sufficient to pass over the executor, or if a more stringent test was required. The tribunal held that the power to pass over an executor was not lightly invoked and required a demonstration of grounds that justified overriding the testator’s intention. The tribunal found that the plaintiff had evidenced an understanding of their duties and a willingness to undertake them, which was crucial in the context of the testator’s deliberate choice of executor.

The tribunal concluded that the caveators had not established a prima facie case for passing over the executor. They had not shown that the grant of probate would be unjust, inefficacious, obstructed, or abused. The tribunal also noted that the deceased’s choice of executor had been considered and deliberate, made with an understanding of the existing disputes among the parties. As the caveats did not succeed in their purpose, they ceased to have effect, and the plaintiff's application for probate was referred to the Registrar of Probates. The tribunal further noted that the beneficiaries were not deprived of their entitlement to seek the Court’s supervision to protect their interests, should the need arise.

Orders