Walter v Hasslinger - [2022] VSC 460

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LISTS

S ECI 2021 04467

MICHAEL JOHN WALTER	Plaintiff
v
ALBAN HORST HASSLINGER & ORS (according to the attached Schedule)	Defendants

---

JUDGE:	KAYE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	23, 25 August 2022
DATE OF JUDGMENT:	26 August 2022
CASE MAY BE CITED AS:	Walter v Hasslinger & Ors
MEDIUM NEUTRAL CITATION:	[2022] VSC 460

---

ADMINISTRATION AND PROBATE – Application by one of two executors to be discharged from office – Costs of application – Appointment of administrator and trustee in place of discharged executor – Trustee companies and other independent persons declining to accept appointment – Whether appointment of life tenant of principal estate asset as trustee and co-executor appropriate – Administration and Probate Act 1958 s 34; Trustee Act 1958 s 48; Settled Land Act 1958 s 30(3).

---

APPEARANCES:

Counsel

Solicitors

For the Plaintiff

Mr W F Rimmer

Harry M Hearn

For the First Defendant and
Third Defendant

For the Second Defendant

For the Fourth and Fifth Defendants

Ms C M Symons

Mr P Thompson (Solicitor)

Marshalls & Dent &Wilmoth

McDonald, Slater & Lay

No appearance

HIS HONOUR:

The plaintiff and the first defendant are the executors and trustees of the will and estate of Alban Richard Hasslinger deceased (‘the deceased’). The plaintiff makes application under s 34(1) of the Administration of Probate Act 1958 that he be discharged as an executor of the will and estate of the deceased, and that the third defendant, or such other person who may be appropriate, be appointed as trustee and executor in substitution for himself.

That application by the plaintiff is not opposed. For the reasons which follow, I consider it is appropriate to grant the application. However, there are two other issues which remain for determination. The first issue concerns the identity of the person or persons who should be appointed in substitution for the plaintiff. The second issue concerns whether the plaintiff’s costs of this application should be paid out of the estate.

Background circumstances

The deceased died on 30 November 2013 leaving a will dated 3 September 1997, a codicil dated 8 June 2008, and a second codicil dated 29 September 2013. By the will, the deceased nominated Karl Heinz Stepp and the first defendant as the executors of his estate. By the first codicil, the deceased appointed the plaintiff as an executor in place of Mr Stepp, with the first defendant remaining as a co- executor. Probate of the will and codicils of the deceased was granted to the first defendant and the plaintiff on 22 August 2016. The delay in the probate application was apparently due to ongoing family disputes, and it also resulted from the fact that the first codicil was executed in Germany, which raised some issues as to its validity as a testamentary document in Victoria.

By the terms of the will and codicils, the deceased, in effect, bequeathed and devised…

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 Walter v Hasslinger

Details

AGLC: Walter v Hasslinger [2022] VSC 460
Case: [2022] VSC 460
Decision Date: 26 August 2022

CaseChat Overview and Summary

The case of Walter v Hasslinger arose from an application by one of the two executors of an estate to be discharged from their office. The court was asked to determine whether the executor could be discharged and, if so, to consider the costs associated with the application. Additionally, the court needed to decide on the appointment of an administrator and trustee in the place of the discharged executor, given the difficulties in finding suitable candidates to accept such appointments.

The central legal issue was whether it was appropriate to appoint the life tenant of the principal estate asset as both a trustee and a co-executor. This involved examining the relevant statutory provisions, including sections 34 of the Administration and Probate Act 1958, section 48 of the Trustee Act 1958, and section 30(3) of the Settled Land Act 1958. The court had to balance the statutory requirements with the practicalities of estate administration.

The court held that the executor could be discharged from their office. It was also determined that appointing the life tenant as both a trustee and co-executor was appropriate under the circumstances. The court took into account the statutory provisions and the specific facts of the case, including the reluctance of other potential trustees to accept the appointment. The court ruled that the life tenant's involvement would not conflict with their interests and would facilitate the efficient administration of the estate. The court ordered that the executor be discharged and that the life tenant assume the roles of both trustee and co-executor.

Orders