Dowling and Ors v St Vincent De Paul Society of Victoria Inc

[2003] VSC 454

Supreme Court of Victoria

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For Australian Law.

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Interrogate

Catchwords

1. Trusts
2. › Powers of trustees
3. › Power to compromise
4. › Scope of statutory power to compromise claims relating to estate
5. › Whether power extends to compromise of probate proceedings contesting validity of will
6. › Trustee Act 1958 (Vic), s 19(1)(f)
1. Succession
2. › Executors and trustees
3. › Powers of executors before grant of probate
4. › Whether power to compromise under s 19(1)(f) varies according to whether grant of probate obtained
5. › Trustee Act 1958 (Vic), s 19(1)(f)
1. Succession
2. › Probate
3. › Compromise of probate proceedings
4. › Whether executors may compromise claim of invalidity of will without consent of all affected beneficiaries
5. › Whether compromise may bind absent beneficiaries
1. Practice and Procedure
2. › Declarations
3. › Hypothetical declarations
4. › Whether court should make declaration where relevant facts not established
5. › Whether declaration would be purely hypothetical

Quick Take

Section 19(1)(f) of the Trustee Act 1958 (Vic) does not authorise executors to compromise a probate proceeding in which the validity of the will is contested without the consent of all affected beneficiaries or an order of the court binding them. The power to compromise 'claims relating to the estate' is limited to claims upon or against the estate and does not extend to proceedings to determine the validity of the will or the title of the executor. Re Irismay Holdings Pty Ltd [1996] 1 Qd R 172 was not followed insofar as it suggested a broader construction.