Estate of Raynish - [2018] NSWSC 1021

Supreme Court

New South Wales

Medium Neutral Citation: Estate of Raynish [2018] NSWSC 1021
Hearing dates: 2 July 2018
Date of orders: 02 July 2018
Decision date: 02 July 2018
Jurisdiction: Equity
Before: Kunc J
Decision:
Interim distribution ordered

Catchwords: SUCCESSION — Executors and administrators — Administration — Interim distribution — Probate and Administration Act 1898, s 84
Legislation Cited: Probate and Administration Act 1898 (NSW)
Cases Cited: Romano v Romano; Estate of Giacomo Romano [2004] NSWSC 775
Stojic v Stojic [2018] NSWSC 723
Stokes (by a tutor) v McCourt [2013] NSWSC 1014
Young v Jackman (1986) 7 NSWLR 97
Category: Principal judgment
Parties: Susan Shine (Applicant)
Jeannette Raynish (Respondent)
Representation:
Counsel:
I Pike SC and P F Santucci (Applicant)
R Wilson SC and N Bilinsky (Respondent)
Solicitors:
Marque Lawyers (Applicant)
Glass Goodwin (Respondent)

File Number(s): 2016/143890
Publication restriction: No

ex tempore Judgment (rEVISED)

Summary

This judgment resolves another round in a bitter dispute between two sisters about their late mother’s estate.
The applicant is Ms Susan Shine. She was represented by Mr I Pike of Senior Counsel with Mr P F Santucci of Counsel. The respondent is Ms Jeannette Raynish. She was represented by Mr R Wilson of Senior Counsel with Mr N Bilinsky of Counsel. The parties’ late mother, Ms Helena Raynish, died on 6 September 2015, aged 93. Without disrespect, I shall refer to the various family members by their given names.
Probate of Helena’s estate was granted to Susan and Jeannette on 13 September 2016. They are co-executrices and each is a 50 per cent beneficiary. The estate is substantial, with a current value of nearly $11 million. Unfortunately, there is no love lost between Susan and Jeannette.
By notice of motion filed on 29 November 2017, Susan seeks these orders:

“1. An order pursuant to section 84 of the Probate and Administration Act 1898, that the amount of $8,661,685 be distributed to Jeannette Raynish and Susan Shine in equal shares as beneficiaries under the Will of Helena Raynish (the Deceased).
2.   In the alternative, an order that Jeannette Raynish make further distributions to Susan Shine from the Deceased’s estate of such an amount as the Court sees fit.
3.   Costs.
4.   Such other orders as the Court thinks necessary.”

During the course of argument, in a process for which the parties and their lawyers are to be commended, the parties agreed that if the Court were minded to make an order for interim distribution, the amount of that distribution should be $4,452,942 to be divided equally between Susan and Jeannette. I will direct that the handwritten document setting out how that amount is calculated, entitled “Respondent’s Schedule”, which I have initialled and dated today, be kept with the Court’s file.
The debate before me ultimately focussed on two reasons why Jeannette argued that no interim distribution should be made (or at least why what was sought should be significantly reduced): that Susan was in contempt of orders made in related proceedings, or, further and alternatively,…

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: [2018] NSWSC 1021
Decision Date: 02 July 2018

CaseChat Overview and Summary

The Estate of Raynish was a legal matter heard by the Supreme Court of Queensland. The dispute involved the estate of a deceased individual, where the executor of the will sought an interim distribution of the estate. The estate was governed by the Probate and Administration Act 1898. The primary issue before the court was whether the executor could make an interim distribution of the estate in accordance with the provisions of section 84 of the Act. The court had to determine the circumstances under which an executor could lawfully distribute the estate to the beneficiaries before the final settlement and whether any conditions or approvals were required from the court.

The court examined the statutory provisions and previous case law to understand the parameters of section 84. It considered the intention of the legislation, which aimed to allow for interim distributions in specific situations to benefit the estate or its beneficiaries. The court also looked at the discretion granted to executors under the Act and the circumstances where such discretion might be restricted. Ultimately, the court concluded that while executors have broad powers under section 84, the court retains an overarching supervisory role to ensure that distributions are made fairly and in accordance with the will's intent. The court found that an interim distribution was permissible, provided that it did not prejudice the rights of other beneficiaries and was in the best interests of the estate.

Following this analysis, the court determined that the executor had acted within their powers in proposing the interim distribution. The court approved the executor's application, allowing the interim distribution to proceed under the supervision of the court. The court ordered that the executor would need to provide regular updates on the estate's status and ensure that all beneficiaries' interests were protected. This decision affirmed the balance between the executor's discretion and the court's supervisory role in administering estates.

Orders