CITATION: Gould v Gould [2005] NSWSC 914
HEARING DATE(S): 5 September 2005
JUDGMENT DATE :
8 September 2005JURISDICTION: Equity
JUDGMENT OF: Campbell J
DECISION: See orders made at para 14
CATCHWORDS: SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - probate and letters of administration - double probate granted - executor to whom double probate granted removed - form of orders appropriate to effect that removal
LEGISLATION CITED: Family Provision Act 1982
Supreme Court Rules 1970
Wills, Probate and Administration Act 1898CASES CITED: Bates v Messner (1967) 67 SR(NSW) 187
Re DEF and the Protected Estates Act 1983 [2005] NSWSC 534
Geddes, Rowland & Studdert, Wills Probate and Administration Law in New South Wales (LBC Information Services 1996)
Gorman v McGuire; Estate of J M Gorman [2002] NSWSC 1089
Mavrideros v Mack (1998) 45 NSWLR 80
O'Brien v McCormick [2005] NSWSC 619
Profilio v Profilio [1999] NSWSC 657
In the Estate of George Shaw [1905] P 92PARTIES: Richard Kenneth Gould - Plaintiff
John Douglas Gould - DefendantFILE NUMBER(S): SC 5781/04 & 2467/05
COUNSEL: DJ Durston - Plaintiff
Defendant appeared in personSOLICITORS: Jeffrey M Jones - Plaintiff
Defendant appeared in person
LOWER COURT JURISDICTION:
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST
CAMPBELL J
8 SEPTEMBER 2005
5781/04 RICHARD KENNETH GOULD v JOHN DOUGLAS GOULD
2467/05 RICHARD KENNETH GOULD v JOHN DOUGLAS GOULD
JUDGMENT
1 HIS HONOUR: On 5 September 2005 I gave oral reasons for judgment, concluding that the defendant should be removed as an executor of the estate of his late mother by reason of his non-co-operation and obstruction in the administration of the estate: Bates v Messner (1967) 67 SR(NSW) 187; Mavrideros v Mack (1998) 45 NSWLR 80. I reserved the question of the precise form of orders which should be made. These reasons relate to that reserved question.
2 The Will of the late Gwendoline Gould appointed her sons Richard Gould and John Gould as executors. At first, John did not wish to apply for probate of the Will. On 10 April 2003 a grant of probate was made to:
- “Richard Kenneth Gould … one of the executors appointed under the will. Leave is reserved to John Douglas Gould the other executor to come in and prove the Will.”
3 The making of a grant expressed in that way is authorised by section 41 Wills, Probate and Administration Act 1898 which provides:
- “The Court may, if it thinks fit, grant probate to one or more of the executors named in any will, reserving leave to the other or others who have not renounced to come in and apply for probate at some future date.”
4 In exercise of that leave, John also later proved the Will. On 26 September 2003 the Court made a grant to John. In accordance with the usual practice in such situations, the grant was expressed to be not a grant of “probate”, but a grant of “double probate”. Similarly, if a Will…
Continue reading Gould v Gould
Sign in free to access the full text
- AGLC
- Gould v Gould [2005] NSWSC 914
- Case
- [2005] NSWSC 914
- Decision Date
CaseChat Overview and Summary
The court needed to determine the appropriate course of action in light of the executor's removal and the implications for the estate's administration. In reaching its decision, the court considered the principles governing probate and letters of administration, as well as the specific circumstances of the case. The court found that the executor's removal necessitated a change in the administration of the estate, and it was appropriate to grant a form of orders that would effect this change. The court emphasised the importance of ensuring that the estate was administered efficiently and in accordance with the deceased's wishes.
In summary, the court granted a form of orders that removed the executor from their position and reassigned the administration of the estate to another party. The court's decision was based on the need to ensure that the estate was administered properly and in accordance with the deceased's wishes. The specific details of the orders were left to the parties to negotiate and finalise, but the court's ruling provided a clear direction for the future administration of the estate.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.