Registration of Caveat Opposed by Applicant
Olsen v Olsen [2022] VSC 95 (1 March 2022)
A property dispute has arisen amongst a family of farmers in South Gippsland. An application for removal of caveat was made by Beryl Olsen. The Court, in ruling on this case, assessed whether Niels has a prima facie case, and whether the balance of convenience favours maintenance of the caveat.
Facts:
Barry died on 4 November 2020, and by his last will dated 27 May 2020 he appointed Beryl as executrix. Probate of Barry’s will was granted to Beryl on 4 February 2021. On 21 January 2021, Niels lodged Caveat AT967918K over Prickle Patch and Hallora on the grounds of having an ‘implied, resulting, or constructive trust’ over the properties. On 2 August 2021, Niels commenced proceedings pursuant to Part IV of the Administration and Probate Act 1958.
By writ filed on 2 August 2021, Niels commenced proceedings against Beryl in her capacity as executrix of Barry’s estate. Niels seeks a declaration that Beryl, as executrix of Barry’s estate, holds Hallora and Prickle Patch on constructive trust for his benefit. Alternatively, Niels seeks a declaration that Beryl is estopped by proprietary estoppel from denying his right to title and interest in Hallora and Prickle Patch. Niels seeks an order that Hallora and Prickle Patch be transferred to him.
By counterclaim filed on 27 September 2021 and summons filed on 15 November 2021, Beryl seeks removal of Caveat AT967918K. Beryl also seeks an order for payment of $20,744, plus GST, for outstanding rent which she alleges that Niels owes pursuant to his lease of Hallora. Niels deposes that Barry made representations to him in 1977 and again in 1985 that “when [Barry] can no longer work on the farm, half of it will be [Niels’]”. Niels deposes that in 1985, Barry told him that this would include Hallora.
By her defence, Beryl denies those representations were made and states that Niels was a child when he alleges that the representations were made and therefore did not have the maturity to discuss the issue of division of family property. Niels deposes that he began working more on the farm from 1974, following the death of his grandfather, Fred. The amount of work he completed increased over time until he left school when he was 17 years old, which was approximately in 1981. Beryl deposes that Niels did not undertake the additional work that he claims he completed, but agrees that the children did assist on the farm.
Issue:
Whether or not the caveat should be removed.
Applicable law:
Administration and Probate Act 1958 - pursuant to which Niels commenced these proceedings.
Laird v Laird & Anor [2021] VSC 352 - provides that the Court needs to proceed carefully when one person to an alleged conversation is deceased.
Analysis:
Beryl’s circumstances changed significantly between the making of this application and the hearing. The balance of convenience is in favour of Beryl given the circumstances above. Her financial circumstances are teetering: her expenses outweigh the income generated from rent, and her savings have been reduced by the purchase of the home in town. Her substantial asset base is tied up in litigation.
The inventory of assets and liabilities contains assets amounting to $2.78 million and no liabilities. There is no evidence to suggest the estate cannot meet expenses. The inventory lists Barry’s personal assets, including shares, amounting to approximately $132,000. Beryl appears to be the residuary beneficiary of the deceased estate. There was no explanation of why these personal assets could not be sold and distributed.
Her costs may exceed her income by about $10,000 per annum. However, she also has savings. There are shares and other assets, and there was no explanation as to why, as the executrix of the estate and its beneficiary, she could not sell Barry’s personal assets. Of course, Beryl is also the owner of Colgons and would have a number of options regarding that, should she have financial difficulties.
Conclusion:
The Court is satisfied that Niels has a prima facie case, and the balance of convenience favours maintenance of the caveat.
