Davis v Clifford
[2012] NSWSC 347
•26 March 2012
Supreme Court
New South Wales
Medium Neutral Citation: Estate of Beatrice Nicholas; Davis v Clifford & Ors [2012] NSWSC 347 Hearing dates: 26 March 2012 Decision date: 26 March 2012 Jurisdiction: Equity Division - Probate List Before: White J Decision: Refer to para [12] of judgment.
Catchwords: WILLS, PROBATE AND ADMINISTRATION - application for the revocation of the grant of probate - alternative application for order pursuant to s 84 of the Probate Administration Act 1898 - distribution of share of net residuary estate - executors in agreement with order sought - direct payment of specified sum of money on account of share of net residuary estate - no question of principle Legislation Cited: Probate and Administration Act 1898 Category: Principal judgment Parties: Suzanne Davis (by her next friend Richard Davis) (Plaintiff)
Kit Ruth Clifford (1st Defendant)
Rosemarie Lavery-Fenelon (2nd Defendant)
Peter Herbert Nicholas (3rd Defendant)Representation: Counsel:
M Campbell (Plaintiff)
In person (2nd Defendant)
Submitting appearances (1st & 3rd Defendants)
Solicitors:
Joan Pierpoint & Associates (Plaintiff)
File Number(s): 2011/61332
Judgment
HIS HONOUR: By her amended summons the plaintiff seeks orders either for the revocation of the grant of probate to the executors, including the second defendant, Rosemarie Lavery-Fenelon, or orders pursuant to s 84 of the Probate and Administration Act 1898 for the distribution to the plaintiff of her share of the net residuary estate of the deceased.
The deceased died on 22 August 2010. On 3 March 2011 probate of her will dated 1 February 2006 was granted to the defendants. By her will the deceased left a pecuniary legacy to her grandson of $10,000. The residue of her estate was left to her children in equal shares. There were four children, namely, the plaintiff and the three defendants. The defendants, but not the plaintiff, were appointed executors.
The plaintiff complains that she has not received her share of the estate. It is unfortunate that proceedings were necessary because the position taken by each of the executors was that the plaintiff's one-quarter share of the residuary estate should be paid to her.
On 20 October 2011 the first and third defendants signed a direction, addressed to the solicitor acting for the executors, for payment of $175,000 to the plaintiff.
On 7 February 2012 the second defendant signed a letter addressed to the solicitors for the executors in which she said that it had come to her attention that the plaintiff remained unpaid. The second defendant stated that she had previously authorised payment to the plaintiff. She signed an authority for payment of $175,000 to be made in favour of the plaintiff.
I am told that there is currently $705,869.68 held by the solicitors for the estate in a controlled moneys account. The legacy has been paid. I am told that outstanding expenses come to a little under $7,000, not including the plaintiff's costs of these proceedings which, on a solicitor and client basis, would come to a little over $8,000.
Rather than make an order in general terms that the defendants pay the plaintiff her one-quarter share of the net residuary estate by a particular time, I propose to direct payment of a specific sum of money on account of the plaintiff's share of the net residuary estate. I should leave a buffer for any unidentified expenses.
The first and third defendants filed a submitting appearance. The second defendant does not oppose the orders for payment of the plaintiff's share of the estate to the plaintiff. The plaintiff did not press her claim for revocation of the grant of probate to the three named executors if an order were made under s 84 of the Probate and Administration Act that provided for the payment of the residuary bequest to the plaintiff.
Section 84 provides that if an executor or administrator, after request in writing, neglects or refuses to pay or hand over to the person entitled to any legacy or residuary request, the court may, on the application of such person, make such order in the matter as it may think fit.
The order I think fit to make is that the defendants pay the plaintiff the sum of $170,000 on account of her one-quarter share of the net residuary estate. I am told that the solicitor who has control of the estate account needs only two days' notice in order to make a withdrawal and I am also told that she will be leaving for overseas on Thursday of this week. I do not know for how long the solicitor may be away and in these circumstances I will direct the payment be made by Thursday, 29 March 2012.
The plaintiff will be entitled to an order for her costs of the proceedings. They should be paid out of the estate in an amount as agreed or assessed on the ordinary basis.
For these reasons I make the following orders:
1. By 29 March 2012 the defendants pay the plaintiff the sum of $170,000 on account of her one-quarter share of the net residuary estate of Beatrice Nicholas who died on 22 August 2010.
2. The plaintiff's costs as agreed or assessed on the ordinary basis be paid out of the estate.
3. The amended summons be otherwise dismissed.
4. These orders may be entered forthwith.
Decision last updated: 16 April 2012
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