Bourdales v Carroll - [2007] NSWSC 1057

CITATION: Bourdales v Carroll; Estate of Diane Holbrook [2007] NSWSC 1057

HEARING DATE(S): 17/9/07

JURISDICTION: Equity Division
Probate List

JUDGMENT OF: Young CJ in Eq

EX TEMPORE JUDGMENT DATE: 17 September 2007

DECISION: Caveats lodged by defendants upheld. Grant of letters of administration to be made to the Public Trustee.

CATCHWORDS: SUCCESSION [84]- Wills Probate and Administration- Probate and Letters of Administration- To whom granted- Deceased died intestate, unmarried and without children- Deceased's uncle and aunts next of kin- Uncle seeks grant of administration- Opposed by four aunts who seek appointment of Public Trustee as administrator- Held, right of administration is in aunts notwithstanding that uncle applied first, theirs being the greater interest- Grant made to Public Trustee.

LEGISLATION CITED: Public Trustee Act 1913, s 18

CASES CITED: Bain v Morabito (Powell J, 14/8/1992) BC 9201674
Re Loveday [1900] P 154
Re Parsons (1887) 13 VLR 169
Re Slattery (1909) 9 SR (NSW) 577
Re Whitelaw (1936) 36 SR (NSW) 469

PARTIES: Victor Edouard Bourdales (P)
Marie Marthe Carroll (D1)
Yvette Liddle (D2)
Sylvia Hartley (D3)
Camille Gnauck (D4)

FILE NUMBER(S): SC 112185/07

COUNSEL: M Dempsey SC and V McWilliam (P)
M Meek (D)

SOLICITORS: John S Zouroudis & Co (P)
Adrian Twigg & Co (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

YOUNG CJ in EQ

Monday 17 September 2007

112185/07 – BOURDALES v CARROLL; ESTATE OF DIANE HOLBROOK

JUDGMENT

1 HIS HONOUR: Technically the question before me today is whether caveats lodged by four persons who together are entitled to two thirds of the estate of the late Diane Holbrook should be upheld. However, the consequence of a finding to that effect would merely be that the court would have the same basal question to decide on another occasion. It has been sensibly agreed between counsel that if I found that the caveat had substance then I should proceed to try the question as to what grant of administration should be made.

2 Diane Holbrook died on the 4 May 2006 single. She had never married. She was never in a de facto relationship. She never had any children.

3 Accordingly, it is agreed that under the laws of succession the persons who are entitled to her estate are her one uncle, the plaintiff, and her five aunts, four of whom are the caveators. The fifth aunt has by her attorney (she now being an incapable person) agreed to the plaintiff's application.

4 The basal rule when the court is considering whether to grant administration in the estate is that the appointment must be one which advances the real object of administration, that is, the due and proper administration of the estate; see Re Loveday [1900] P 154, 156.

5 Within that general rule judges have over the centuries enunciated a series of guidelines as to how one ascertains who should administer the estate. In essence, these are that the right to administration follows interest. That is, the person who has the greatest…

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 Bourdales v Carroll

Details

AGLC: Bourdales v Carroll [2007] NSWSC 1057
Case: [2007] NSWSC 1057
Decision Date: 17 September 2007

CaseChat Overview and Summary

The case of Bourdales v Carroll involved a dispute over the right to administer the estate of a deceased person who had died intestate, unmarried, and without children. The deceased's uncle, Bourdales, sought a grant of administration of the estate, but this was opposed by the deceased's four aunts, who sought the appointment of the Public Trustee as administrator. The central issue for the court was to determine who had the right to administer the estate given the competing claims of the uncle and the aunts.

The legal issue the court needed to address was which of the next of kin had the superior right to administer the estate. The court had to interpret the relevant statutory provisions and case law to determine whether the uncle or the aunts had the greater interest in the estate. The court considered that while the uncle had applied for the grant of administration first, the aunts collectively had a greater interest in the estate than the uncle individually. The court concluded that the right of administration was in the aunts, and therefore, the grant should be made to the Public Trustee.

In reaching its decision, the court relied on statutory provisions and previous case law which established that where there are multiple next of kin, the right of administration vests with those having the greater interest. The court found that the aunts, as the deceased's next of kin, had a greater collective interest in the estate than the uncle. The court also noted that the deceased's failure to make a will and the absence of any other potential beneficiaries meant that the next of kin were the primary claimants to the estate.

The final order of the court was that the grant of administration should be made to the Public Trustee on behalf of the four aunts, who were the deceased's next of kin with the greater interest in the estate.

Orders