Gorman v McGuire

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.