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Gould v Gould

Gould v Gould

Case [2005] NSWSC 914 8 September 2005

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CITATION:
Gould v Gould [2005] NSWSC 914

HEARING DATE(S): 5 September 2005

JUDGMENT DATE :

8 September 2005

JURISDICTION:
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 1898

CASES 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 92

PARTIES:
Richard Kenneth Gould - Plaintiff
John Douglas Gould - Defendant

FILE NUMBER(S):
SC 5781/04 & 2467/05

COUNSEL:
DJ Durston - Plaintiff
Defendant appeared in person

SOLICITORS:
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…

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 Gould v Gould

Details

AGLC: Gould v Gould [2005] NSWSC 914
Case: [2005] NSWSC 914
Decision Date: 8 September 2005

CaseChat Overview and Summary

In the matter of Gould v Gould, the parties involved were the deceased's estate, represented by the executor, and a relative, who sought to challenge the executor's authority. The dispute centred around the administration of the deceased's estate, specifically concerning the granting of double probate and the subsequent removal of the executor. The case was heard in the Supreme Court of Queensland. The central legal issue was whether the court should grant a form of orders that would effectively remove the executor and reassign the administration of the estate to another party.

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