Gorman v McGuire - [2002] NSWSC 1089

CITATION: Gorman v McGuire: Estate of J.M. Gorman [2002] NSWSC 1089

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 5505/02

HEARING DATE(S): 13 November, 2002

JUDGMENT DATE: 13 November 2002

PARTIES :

John Patrick Gorman - Plaintiff
Lisa Bernadette McGuire - Defendant

JUDGMENT OF: Palmer J

COUNSEL : T.G.R. Parker - Plaintiff
Ex parte - Defendant

SOLICITORS: Maurice Blackburn Cashman - Plaintiff
Ex parte - Defendant

CATCHWORDS: PROBATE - REVOCATION OF GRANT - EXECUTOR - One of two co-executors applies to Equity Court seeking his removal as executor because of conflict of interest and duty in his administration of the estate - Plaintiff seeks order for partial revocation of grant of probate - held: where one of two or more executors is to be removed, either voluntarily or involuntarily, the original grant of probate must be revoked and a fresh grant of probate made to the remaining executor or executors - partial revocation of a grant of probate is not possible - principle discussed. REVOCATION OF GRANT - PROCEDURE - An application for revocation of grant of probate is made in the inherent probate jurisdiction of the Court, not the general equitable jurisdiction, and the Probate Rules must be observed. REVOCATION OF GRANT - COSTS - Co-executor applies for revocation of grant because of conflict of interest - co-executor failed to obtain legal advice as to his position of conflict prior to applying for probate - if legal advice had been obtained, executor would have renounced grant and application for revocation would have been unnecessary - held: it was not reasonable that the costs of the application should be borne by the estate.

LEGISLATION CITED: Family Provision Act 1982 (NSW)

CASES CITED: - Bates v Messner (1967) 67 SR(NSW) 187
- Shaw, in the Estate of George - [1905] P.92
- Shaw v Thomas [1954] NZLR 585

DECISION: Original grant of probate revoked; fresh grant of probate made to Defendant as sole executrix; no order as to costs.

1 The Plaintiff is co-executor with his sister, the Defendant, of the estate of their late mother Jeanette Mary Gorman. Probate of the will of the deceased, which is dated 28 July 1998, was granted to the Plaintiff and the Defendant by this Court on 29 December 1999. 2 The Plaintiff and the deceased had carried on a business together as a joint venture for some years before the deceased's death. Thereafter, the Plaintiff continued to use some of the joint venture assets and to pay monies in and out of the joint venture bank account, partly for his own purposes and partly for the joint venture account. 3 There has not yet been an accounting as between the Plaintiff and the deceased's estate in respect of the Plaintiff's dealings with the joint venture. Moreover, the Plaintiff's father has commenced proceedings under the Family Provision Act 1982 (NSW) seeking further provision out of the estate. The Plaintiff hopes to be able to negotiate an agreement with the estate whereby all matters in issue between…

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 Gorman v McGuire

Details

AGLC: Gorman v McGuire [2002] NSWSC 1089
Case: [2002] NSWSC 1089
Decision Date: 13 November 2002

CaseChat Overview and Summary

In the matter of Gorman v McGuire, the court was tasked with addressing the issue of the revocation of a grant of probate, specifically concerning the removal of one of two co-executors from their role due to a conflict of interest. The plaintiff, one of the co-executors, sought an order for a partial revocation of the grant of probate, arguing that the defendant's conflict of interest warranted his removal. The court had to determine whether a partial revocation of the grant was permissible and if the costs incurred by the plaintiff in applying for revocation should be borne by the estate.

The primary legal issue before the court was whether a partial revocation of a grant of probate is an available remedy in circumstances where one co-executor needs to be removed due to a conflict of interest. Additionally, the court had to consider the procedural requirements for making an application for the revocation of a grant of probate, as well as the appropriate allocation of costs in such proceedings. The court examined the inherent jurisdiction of the court to revoke a grant of probate and the necessity of adhering to the Probate Rules in such applications.

The court held that a partial revocation of a grant of probate is not a permissible remedy. Instead, when one of two or more executors must be removed, either voluntarily or involuntarily, the original grant of probate must be entirely revoked and a fresh grant of probate issued to the remaining executor or executors. The court emphasised that the procedure for revocation of a grant of probate must be conducted under the inherent jurisdiction of the court and in compliance with the Probate Rules. Furthermore, the court ruled that it was not reasonable for the costs of the application to be borne by the estate, as the plaintiff had not obtained legal advice regarding his conflict of interest prior to applying for probate. Had he done so, the plaintiff would have renounced the grant, and the application for revocation would have been unnecessary.

The court's decision underscores the importance of obtaining legal advice in situations where a conflict of interest may arise in the administration of an estate. It also highlights the strict procedural requirements for revoking a grant of probate and the need for careful consideration when allocating costs in such proceedings.

Orders