Van Driel-Vis, application by
[2007] VSC 372
•1 October 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 8121 of 2007
| GERRIT JOHANNES VAN DRIEL-VIS | Plaintiff |
| PATRICIA ANN VAN DRIEL-VIS |
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JUDGES: | WARREN CJ | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 September 2007 | |
DATE OF JUDGMENT: | 1 October 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 372 | |
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Probate and Administration – Australian minor beneficiary of US estate – grant of administration durante minore aetate not sought - application for Australian court’s authorisation for parents as guardians of a minor beneficiary to dispose of assets.
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| APPEARANCES: | Counsel | Solicitors |
| For the plaintiff | Mr A Zaitman (a solicitor) | Zaitman & Associates |
VAN DRIEL-VIS
WARREN CJ:
This matter was bought before the Practice Court on originating summons by the plaintiffs for an order that grants the plaintiffs as parents of the child Elinor Kahyla Quinlan van Driel-Vis, born 26 April 1992, the beneficial bequest of the proceeds of the will of Elinor Lillian Quinlan, a former resident of Los Angeles, on trust for the benefit of their daughter Elinor. The plaintiffs reside at 7 Oakmont Close Rowville Victoria, Australia.
In an affidavit sworn by the solicitor for the plaintiffs, Mr Zaitman, on 30 August 2007, and exhibit AZ1 submitted to this court of the certified photocopy of the birth certificate, Ms Elinor Kahyla Quinlan van Driel- Vis was born on 26 April 1992 in Coopers Plain Queensland to parents named as Mr Gerrit Johannes van Driel-Vis and Ms Patricia Ann van Driel-Vis. Exhibit AZ2 is a document entitled “certificate of death” of a Ms Elinor Lillian Quinlan that lists her date of death as 27 July 2006 at the age of 89 years at the Cedars Sinai Medical Centre Los Angeles. This exhibit reflects information that Ms Quinlan was divorced at the time of death and resided in Beverley Hills California. The beneficiary of the will, a minor Elinor Kahyla Quinlan van Driel-Vis was 14 years three months old at the time of the death of Ms Quinlan.
Exhibit AZ3 tendered to the Court and sworn by Aaron Zaitman on 30 August 2007 is a photocopy of a six page document entitled “Last Will and Testament of Elinor L Quinlan, dated 23 May 2001”. Page 5 of the document under the heading “Sixth” states “ I authorize my Executor to administer my estate under California Independent Administration of Estates Act” with a signature of Elinor L Quinlan as testatrix. Page six of this document is signed in two places: “we declare under penalty of perjury under the laws of the State of California, that this declaration is true and correct. Executed on May 23, 2001 at Beverly Hills California”. The names and addresses of two people attesting to this declaration only appear on this page. This entire exhibit does not appear to have an official seal of registration or a signature of the testatrix on this page of the document.
Exhibit AZ4 sworn by Aaron Zaitman on 30 August 2007 is a photocopy of a letter from Saul Kreshek of Law Offices of Saul Kreshek dated 8 August 2007 to Aaron Zaitman with an attached photocopy of the California Probate Code S3200, et seq. This letter states: “The rules and regulations setting forth the requirements for such an order are clearly set forth, I believe in California Probate Code s3200. If we do not proceed in this fashion, I cannot predict who might be appointed to safeguard the minor child’s interests”.
Mr Kreshek’s letter states he believes “inescapably that one or both of the parents of Elinor L Quinlan, a minor, must request the Australian Courts grant a petition or motion for the appointment of such guardianship and assets during the minority age period of Elinor L Quinlan.”
The second document of Exhibit AZ4 is an 8 page photocopied document entitled “Probate Code” that commences with the heading ”Part 7 Capacity Determinations and Health Care Decisions for Adult Without Conservator”. This document lists a number of sections headed s3201 definitions, s3201 petitions, s3202 jurisdiction and venue, s3203 persons authorised to file petition s3204 contents of petition, s3205 appointment of legal counsel, s3206 notice of hearing and copy of petition, service exceptions, considerations by the court, s3207 submission for determination on medical declarations and other such matters relating to placement in a mental health treatment facility and Part 8 “Other Protective Proceedings”. Part 8 Chapter 2 section 3300 deals with general provisions and Chapter 2 refers to Money or Property Belonging to Minor in section 3400. Section 3300 requires: the parent who receives any money or property belonging to a minor under any provision of this part shall account to the minor for the money or other property when the minor reaches the age of majority. This exhibit contains sections referring to the money or property belonging to Minor, total estate not in excess of $5000.[1]
[1] Chapter 2, Article 1 section 3400; and Property in the form of Money (Chapter 2, Article 1, section 3410).
Mr Zaitman’s sworn affidavit at Paragraph 8 states that the “California Courts required an Australian Court order designating Elinor’s parents as legal guardians of Elinor during her minority to hold Elinor’s entitlement”.
In paragraph 9 of his sworn affidavit, Mr Zaitman requests the court to make Orders that:
(a) the plaintiffs are the legal guardians of Elinor,
(b) that Elinor’s entitlement be held by the plaintiffs in their capacity as legal guardians of Elinor, upon trust during Elinor’s minority;
(c) that the shares in AT &T forming part of Elinor’s entitlement be transferred into the names of the plaintiffs or at the discretion of the plaintiffs, to be sold and the proceeds thereof to be held upon trust for Elinor during her minority; and
(d) that the plaintiffs have the right to apply any part of Elinor’s entitlement for Elinor’s maintenance, education and welfare during her minority.
Counsel for the plaintiffs is acting on reliance on the advice provided by US attorney Mr Kreshek as executor of the estate, specifically section 3200 to give effect to the parents to manage and dispose of Elinor’s interest.
Elinor is 15 years and 5 months old and is a minor under Victorian and Australian Law until she turns the age of majority at 18 years. Elinor is the beneficiary of the estate of Elinor L. Quinlan and on the evidence submitted to the court is entitled to an undisclosed sum of all of Quinlan’s shares of stock in American Telephone and Telegraph and a cash sum of $US5,000. It is unknown from the basis of the information submitted to the court the total estate of Ms Quinlan bequeathed to Elinor except to say that the estate is not less than $US5000.
The plaintiffs did not produce to the court any information or evidence as to the total sum of the estate by which this court may consider the relevant or applicable Californian Code provisions. It is difficult for this court to determine whether part c of paragraph 9 may be dealt with by this court on the evidence before it.
Mr Zaitman’s affidavit refers to the letter by Mr Kreshek in relation to the suggested direction and advice given by Mr Kreshek in relation to the child. Mr Kreshek’s letter appears in error. The executor’s letter specifically states “the parents of Elinor L Quinlan, a minor” which does not reflect the name of the plaintiffs’ child being Elinor Kahyla Quinlan van Driel-Vis.
Furthermore, the plaintiffs did not produce any evidence from the child as to the child’s wishes. Indeed, there was virtually no evidence about the child or the child’s location or circumstances. The plaintiffs’ counsel seeks the Court’s authority to confirm the plaintiffs’ legal guardianship of Elinor and declare their legal right to hold shares of an unknown quantity and cash of $US5000 for Elinor as well as hold a legal right to dispose of such shares at their discretion held upon trust for Elinor.
The plaintiffs have not sought a grant of representation in favour of them for the minor’s benefit. Such a grant will normally be limited until the minor attains full age and obtains a grant[2] and is referred to as a grant of administration during minority or “administration durante minore aetate”.[3]
[2] Re Johnson [1931] VLR 60.
[3] See Halsbury’s Laws of Australia, 395 (IV) Administration During Minority, [395-3210].
The Court’s authority in such matters can be summarised as follows:
“Grants of administration durante minore aetate may be made to guardians of infants for their use and benefit, subject to such limitations or conditions as the court or a judge or the Registrar of Probates may order.
Infants above the age of seven years may elect a guardian, but in other cases a guardian must be assigned by the Court or a judge or the Registrar of Probates founded on an affidavit showing that the proposed guardian is either de facto next of kin or the infants, or that their next of kin de facto has renounced his right to the guardianship, and is consenting to the assignment of the proposed guardian, and that such proposed guardian is already to undertake the guardianship; and upon any application for administration by such guardian evidence of his election or assignment must be produced. In a family where there are infants both above and under the age of seven years an elected guardian may act for all the infants with out special assignment.”[4]
[4] Ross A. Sundberg, Griffith’s Probate Law and Practice in Victoria, (3rd ed, 1983), 199.
The plaintiffs have not sought an application before this court for such assignment and the court has not had the benefit of hearing from the child. In Victoria, minors aged 12 years or over may elect a guardian; in other instances the guardian may be assigned by the court or Registrar.[5] The plaintiffs may be, in effect, attempting to act under the common law as guardian of Elinor.[6] At common law, a parent may receive property for the benefit of the child.[7] However, it seems under California law more is needed by the plaintiffs.
[5]Supreme Court (Administration and Probate) Rules 2004, r 5.01.
[6] See for example Fountain v Alexander (1982) 150 CLR 615, 626, 634.
[7]Morgan v Morgan (1737) 1 Atk.489, 26 ER 310.
In the circumstance of this matter the plaintiffs effectively put the problem with the Court, made the request and left matters at that. No submission, oral or written, was provided. The court was not directed to statutory provision or legal authorities. I am unable to accede to the application in its present form. I will hear from the plaintiff as to the next step.
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