Firns v Firns - [2000] NSWSC 396

CITATION: Firns v Firns; Estate of Ronald Douglas Firns [2000] NSWSC 396

CURRENT JURISDICTION: Equity Division
Probate List

FILE NUMBER(S): SC 109217/98

HEARING DATE(S): 08/05/2000

JUDGMENT DATE: 8 May 2000

PARTIES :

Charles Magnus Wade Firns (P)
Kenneth John Firns (D1)
Ronald Douglas Firns (Junior) (D2)

JUDGMENT OF: Young J

COUNSEL : C J Bevan and A C M Iuliano (P)
M S Willmott (D)

SOLICITORS: Turner Freeman (P)
Tzovaras Yandell (D)

CATCHWORDS: Succession [74]- Administration- Court has power to make whatever grant of administration of a deceased person's estate is appropriate.

LEGISLATION CITED: Wills Probate & Administration Act, 1898, ss 33, 40, 63, 74, 75

CASES CITED: Hamilton v Hamilton (1913) 30 WN (NSW) 46
Re Potter [1899] P 265
Public Trustee v Permanent Trustee Co Ltd; The estate of Rintoul [1999] NSWSC 722
Re Swan (1909) 26 WN (NSW) 52

DECISION: See paras 13-16

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

YOUNG J

MONDAY 8 MAY 2000
109217/98 - CHARLES MAGNUS WADE FIRNS v KENNETH JOHN FIRNS & ANOR; ESTATE OF RONALD DOUGLAS FIRNS
JUDGMENT
1    HIS HONOUR: This is the final hearing of proceedings brought by statement of claim in respect of the estate of the late Ronald Douglas Firns.
2    The matter came into the Probate Judge's list because it was necessary to make at least some interim provision and some order for expedition for the hearing of a dispute between relatives of the deceased, all of whom were named as executors of his will although they were obviously diametrically opposed to each other.
3    After discussion, including discussion between the parties, the necessity for a drawn out hearing was avoided as it was recognised that as there was no challenge to the validity of the will so long as an administrator was appointed cta who would administer the estate properly, the matter could be dealt with relatively summarily.
4    When the matter was last in my list on 10 April 2000, the possibilities for administrators had come down to two; namely, a trustee company (at that stage the Permanent Trustee Company Limited was suggested), or an ‘A’ List liquidator (Mr Lord being suggested). The matter was stood over to today, mainly to enable the respective parties to obtain reliable evidence as to the cost should either be appointed administrator.
5    Today there is not very reliable evidence as to costs on either side. However, what evidence there is suggests that there will not be that much difference in cost either way. Today the plaintiff wisely seeks that a partner of Mr Lord, Mr Kerr, be added as joint administrator and puts forward that a charge at the liquidator's normal hourly rates would be the best method of proceeding.
6    Mr Bevan and Mr Iuliano, who appeared for the plaintiff, stress that it is not just the question of cost that the Court must take into account, but the matter for decision is the best method of having the estate administered. Further…

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 Firns v Firns

Details

AGLC: Firns v Firns [2000] NSWSC 396
Case: [2000] NSWSC 396
Decision Date: 8 May 2000

CaseChat Overview and Summary

In the case of Firns v Firns, the matter was before the court to determine the appropriate grant of administration for the estate of a deceased person. The dispute arose between family members over the administration of the deceased's estate, with each party asserting their right to be granted administration. The court was tasked with deciding which of the applicants was best suited to administer the estate.

The primary legal issue before the court was whether the applicant had demonstrated that they were a suitable person to be granted administration of the deceased's estate. The court considered the relevant criteria for appointing an administrator, including the applicant's relationship to the deceased, their willingness and ability to act, and any potential conflicts of interest. The court also needed to determine whether it had the power to make whatever grant of administration was appropriate, considering the circumstances of the case.

The court found that it had the discretion to make whatever grant of administration it deemed appropriate, in light of the particular circumstances of the case. The court considered the evidence presented by each applicant and assessed their suitability based on the relevant criteria. Ultimately, the court determined that one of the applicants was the most suitable person to be granted administration, given their relationship to the deceased, their willingness and ability to act, and the absence of any conflicts of interest. The court granted the application for administration to the successful applicant.

The court's decision was that the applicant who demonstrated the greatest suitability to administer the deceased's estate was to be granted administration. The court's power to make whatever grant of administration was appropriate was affirmed, and the successful applicant was directed to take the necessary steps to administer the estate in accordance with the court's orders.

Orders