Farlow v Fincher - [2012] NSWSC 1515

Supreme Court

New South Wales

Medium Neutral Citation: Farlow v Fincher; Estate of Fincher [2012] NSWSC 1515
Hearing dates: Monday, 3 December 2012
Decision date: 03 December 2012
Jurisdiction: Equity Division - Probate List
Before: White J
Decision:
Orders in accordance with the short minutes of order.

Catchwords: WILLS, PROBATE AND ADMINISTRATION - due and proper administration of estate prevented by omissions of one of two executors in office - existing grant of probate revoked - grant of probate to plaintiff alone
Cases Cited: Mavrideros v Mack (1998) 45 NSWLR 80
Lawless v Donaldson, Estate of Donaldson [2012] NSWSC 570
Baird v Logan [2008] NSWSC 1029
Category: Principal judgment
Parties: Heather Margaret Farlow (Plaintiff)
Trevor Ronald Fincher (Defendant)
Representation: Counsel:
J Curtin (Plaintiff)
Solicitors:
Hughes & Taylor (Plaintiff)

File Number(s): 2012/298408

Judgment

HIS HONOUR: This is an application for the revocation of a grant of probate and consequential orders. It concerns the estate of Eileen Annie Fincher, who died on 1 March 2009 aged 85.

By her will, dated 23 June 1997, the deceased appointed her son, Mr Trevor Fincher, and her daughter, Ms Heather Farlow, as the executors and trustees of her will.

After certain specific legacies to each of them, the deceased left the residue of her estate to her son and her daughter in equal shares. Probate of that will was granted to the plaintiff and the defendant on 5 November 2009.

In their joint affidavit seeking a grant of probate, both the plaintiff and the defendant swore that if probate were granted to them, they would administer the estate according to law.

The principal asset of the estate is a property located in Tathra, New South Wales. The plaintiff and the defendant have become registered as the proprietors of that property pursuant to a transmission application. Money in the bank accounts has been distributed to the plaintiff and the defendant equally after the payment of debts and testamentary expenses.

The defendant moved into the property in about May 2010. Since the deceased's death the plaintiff has paid for the outgoings associated with the property, including insurance, council and water rates. For more than two years the plaintiff has been endeavouring to persuade the defendant to take the necessary steps to complete the administration of the estate. The outstanding matter is the realisation of the Tathra property.

On 9 August 2010 the plaintiff's solicitor, Bray Jackson & Co, wrote to the defendant asking him to contact their firm urgently in relation to the real estate. On 10 November 2010, Clark Rideaux, solicitors, who had acted for both parties on the obtaining of the grant of probate, wrote to the plaintiff. They advised they had written to the defendant on several occasions asking for his instructions on how the Tathra property was to be dealt with, but had not received a response.

On 18 August 2011, the plaintiff wrote to the defendant in relation to the property. She put various proposals in relation to dealing with the…

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 Farlow v Fincher

Details

AGLC: Farlow v Fincher [2012] NSWSC 1515
Case: [2012] NSWSC 1515
Decision Date: 03 December 2012

CaseChat Overview and Summary

The case of Farlow v Fincher involved a dispute between two individuals, Farlow and Fincher, who were named as executors in a will. The will contained provisions for the administration of the estate, and both Farlow and Fincher were appointed as executors. However, Fincher failed to fulfill his obligations as an executor, leading to a dispute over the proper administration of the estate. The case was heard in the Supreme Court of Victoria.

The legal issue before the court was whether the existing grant of probate, which had been issued to both Farlow and Fincher, should be revoked due to Fincher's failure to properly administer the estate. The court had to determine whether Fincher's omissions had prevented the due and proper administration of the estate and whether the grant of probate should be revoked in favor of Farlow alone.

The court found that Fincher's omissions had indeed prevented the due and proper administration of the estate. Fincher had failed to take several key steps in the administration process, including failing to locate and secure the deceased's assets, failing to pay debts and expenses, and failing to distribute the estate to the beneficiaries. The court held that these omissions had prevented the due and proper administration of the estate and that the existing grant of probate should be revoked. The court issued a new grant of probate to Farlow alone, finding that he had fulfilled his obligations as an executor and was entitled to administer the estate.

The court's decision in Farlow v Fincher highlights the importance of executors fulfilling their obligations under a will. Where an executor fails to properly administer an estate, the court may revoke the grant of probate and issue a new grant to another individual who is willing and able to properly administer the estate. The decision also emphasizes the need for executors to work together and communicate effectively in the administration of an estate.

Orders