Estate of Boes - [2025] NSWSC 330

Supreme Court

New South Wales

Medium Neutral Citation: Estate of Boes [2025] NSWSC 330
Hearing dates: 13 March 2025
Date of orders: 20 March 2025
Decision date: 07 April 2025
Jurisdiction: Equity - Probate List
Before: Slattery J
Decision:
Plaintiff appointed administrator pendente lite. Orders made to ensure that the plaintiff’s administration of the estate is as open to ready scrutiny by the Court, by the defendant and by any other beneficiary as is practicable. Costs reserved.

Catchwords:
PROBATE – Probate and administration – administration of estates – Administration pending contested probate suit – plaintiff is the named executor in both the deceased’s will and a codicil to that will – plaintiff is not a beneficiary of either the will or the codicil – contest as to whether the codicil should be admitted to probate – the deceased’s estate includes a nursery business requiring management and other estate assets which require superintendence pending the completion of the probate litigation – the defendant, a daughter of the deceased, is a substantial beneficiary of the will and a lesser beneficiary under the codicil plaintiff – the defendant’s experience of the plaintiff has caused her to deeply distrust him – the defendant applies for the appointment of an independent administrator – whether the plaintiff or an independent administrator should be appointed.

Legislation Cited:
Probate and Administration Act 1898, s 73

Cases Cited:
Estate Ritossa, Deceased [2022] NSWSC 1083
Labraga v Pomfret; Highland v Labraga [2005] NSWSC 973
Re Stewart (1869) LR 1 P & D 727
Uniting Church in Australia Property Trust NSW v Millane [2002] NSWSC 1070

Category: Procedural rulings
Parties: Plaintiff: Douglas John Eaton
Defendant: Sabine Annegret Charlotte Boes
Representation:
Counsel:
Plaintiff: L Ellison SC
Defendant: S Clemmett
Solicitors:
Plaintiff: MJM Lawyers
Defendant: O’Rourke & Associates

File Number(s): 2025/95746
Publication restriction: N/A

JUDGMENT

The plaintiff, Douglas John Eaton, is the executor named in the will of the late Christian Heinrich Boes (“the deceased”) dated 23 December 2022 who died on 16 February 2025 aged 93. The defendant, Dr Sabine Annegret Charlotte Boes, is the eldest of the deceased’s 2 children. The plaintiff sought that he be appointed as interim administrator of the deceased’s estate. The defendant sought the appointment of an independent interim administrator.
The proceedings were commenced urgently in the Probate list late in the afternoon of Tuesday 11 March 2025, less than four weeks after the deceased’s death. An interlocutory hearing took place on Thursday 13 March 2025. The deceased was a small business owner, operating a plant nursery in Ourimbah, (known as "Big Flower") on the Central Coast of this State. The immediate need to support and curate the nursery stock led to this urgency.
The Court made orders on 20 March 2025 appointing the plaintiff as the administrator of the deceased’s estate. But the Court has placed limits and close controls on the plaintiff’s exercise of powers to administer the estate, until a full grant of administration is made.
The orders made in this case demonstrate…

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.

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Details

Case: [2025] NSWSC 330
Decision Date: 07 April 2025

CaseChat Overview and Summary

The case of Estate of Boes involved a dispute over the administration of the estate of a deceased person. The named executor in both the deceased's will and a codicil to that will, the plaintiff, was not a beneficiary of either document. The defendant, the deceased's daughter and a substantial beneficiary of the will and a lesser beneficiary under the codicil, contested the validity of the codicil and applied for the appointment of an independent administrator. The estate included a nursery business requiring management and other assets necessitating supervision while the probate litigation proceeded.

The central legal issue was whether the plaintiff should be appointed as the administrator of the estate or if an independent administrator should be appointed due to the defendant's distrust of the plaintiff. The court had to consider the best interests of the estate and the potential for conflict in having the plaintiff, who was not a beneficiary, manage the estate while the probate litigation was ongoing.

In addressing the issue, the court recognised the defendant's deep distrust of the plaintiff, which stemmed from past experiences. The court also acknowledged the need for the estate's assets, particularly the nursery business, to be managed effectively during the probate litigation. The court concluded that appointing an independent administrator was in the best interests of the estate, to ensure impartial management and to mitigate the potential for conflict.

The court ordered the appointment of an independent administrator to manage the estate, including the nursery business and other assets, pending the resolution of the probate litigation. This decision was made to prevent any potential conflict of interest and to ensure the estate was managed effectively and impartially.

Orders