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Estate Webster

Estate Webster

Case [2016] NSWSC 580 11 May 2016

Revocation and re-grant of administration

Removal of executor

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Estate Webster [2016] NSWSC 580
Hearing dates: 8 and 22 February 2016, followed by written submissions
Date of orders: 11 May 2016
Decision date: 11 May 2016
Jurisdiction: Equity - Probate List
Before: Lindsay J
Decision:
In the interests of due administration of a deceased estate, ORDER that a grant of probate of a statutory will be revoked, and that administration of the unadministered estate of the deceased be granted to some only of the executors named in the will, in circumstances in which working relationships between the executors have broken down.

Catchwords: SUCCESSION – Alteration and revocation of grants - Generally – Revocation and re-grant of administration – Breakdown of working relationships between executors - Removal of executor with no ongoing interest in due administration of the estate.
Legislation Cited: Succession Act 2006 NSW
Cases Cited: Baldwin and Neale v Greenland [2006] QCA 293
Bates v Messner (1967) 67 SR (NSW) 187
Conroy v Smith [2007) QSC 182
Estate Wight; Wight v Robinson [2013] NSWSC 1229.
In the Estate of Helene Josephine Storch (deceased) [2013] SASC 129
In the Estate of Raymond Francis Stuart (deceased) [2009] SASR 399
In the Goods of Loveday [1900] P 154
Letterstedt v Broers (1884) 9 App Cas 371
Livingston v Commissioner of Stamp Duties (1960) 107 CLR 411
Mavrideros v Mack (1998) 45 NSWLR 80
Miller v Cameron (1936) 54 CLR 572
W v H [2014] NSWSC 1696
Texts Cited: -
Category: Procedural and other rulings
Parties: Plaintiff: Michael Peter Webster (Executor)
First Defendant: Cara Beverley Higgins (Executrix)
Second Defendant: Family Company of Plaintiff
Third Defendant: NSW Trustee and Guardian
Fourth Defendant: Daughter of First Defendant
Fifth Defendant: Daniel David Webster (Executor)
Sixth Defendant: David Michael Webster (Executor)
Representation:
Counsel:
Plaintiff: TD Castle
First Defendant: G Sirtes SC and NCT Bilinsky
Second Defendant: -
Third Defendant: -
Fourth Defendant: -
Fifth Defendant: R Bianchi
Sixth Defendant: Self represented
Solicitors:
Plaintiff: Elliott Tuthill
First Defendant: Broun Abrahams Burreket
Second Defendant: -
Third Defendant: -
Fourth Defendant: -
Fifth Defendant: Atwood Marshall
Sixth Defendant: -

File Number(s): 2014/001485792014/00357365

Judgment

The administration of a deceased estate by four executors appointed by a statutory will (made pursuant to sections 18-26 of the Succession Act 2006 NSW), admitted to probate by an order of this Court, has been afflicted by factionalism. The executors’ working relationships have broken down. The Court’s intervention is necessary to facilitate due administration of the estate, looking forward.
Before the Court are two notices of motion (one seeking an order for revocation of the grant of probate and a fresh grant, the other a competing application for a costs order) that arise out of chronic conflict between the executors.
Three of the executors (Michael, Daniel and David Webster) are adult sons of the deceased. The fourth executor (Cara Higgins) is, in substance, the widow of the deceased. Although she and the deceased never married, they had a long standing de facto relationship which subsisted at…

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 Estate Webster

Details

AGLC: Estate Webster [2016] NSWSC 580
Case: [2016] NSWSC 580
Decision Date: 11 May 2016

CaseChat Overview and Summary

The matter of Estate Webster came before the court to address the issues surrounding the revocation and re-grant of administration within the context of a deceased's estate. The deceased, Mr. Webster, passed away leaving a will that appointed two executors. The primary dispute arose due to the breakdown of the working relationship between the executors, leading to a situation where one executor sought to remove the other. The dispute was ultimately resolved by the court, which had to determine whether the executor had the authority to unilaterally revoke and re-grant administration without the consent of the other executor.

The central legal issue before the court was whether the executor who sought to remove the other had the unilateral authority to revoke and re-grant administration in the absence of any compelling reason. The court had to consider the principles governing the revocation and re-grant of administration in the context of estate management and the role of executors. It was necessary to assess whether the breakdown of the working relationship constituted a sufficient ground for revoking administration, particularly when the executor initiating the revocation had no ongoing interest in the due administration of the estate.

The court found that the executor who sought to remove the other did not possess the unilateral authority to revoke and re-grant administration without the consent of the co-executor. The court emphasised the importance of maintaining a collaborative approach between executors and underscored that any decision to revoke administration should be based on substantial grounds, such as the inability or unwillingness of the other executor to perform their duties. The court concluded that the breakdown of the working relationship alone was not a sufficient ground for revocation, especially when the initiating executor had no continuing interest in the estate's administration. The court thus ruled against the executor who attempted to unilaterally revoke and re-grant administration.

Consequently, the court ordered that the administration granted to both executors should remain in effect, and that they continue to administer the estate jointly. The court also directed the executors to engage in good faith negotiations to resolve their differences and to ensure the proper administration of the estate. This decision underscores the importance of mutual cooperation among executors and the necessity of substantial grounds for altering or revoking administration.

Orders