Hill v Hill - [2023] NSWSC 612

Supreme Court

New South Wales

Medium Neutral Citation: Hill v Hill [2023] NSWSC 612
Hearing dates: 11 May 2023 and 31 May 2023
Date of orders: 31 May 2023
Decision date: 31 May 2023
Jurisdiction: Equity
Before: Hallen J
Decision:
See Paragraph [43]

Catchwords:
SUCCESSION – Adult children appointed as substitute executors - Probate of the Will not being sought by one – Application brought by other for grant of administration with the deceased’s Will annexed to be made to independent administrator – Where due and proper administration of deceased’s estate not able to be completed – Respondent is non-active party who has rarely appeared, who has not filed an appearance, or any affidavits and who did not appear at the hearing – Court concerned with the due and proper administration of the deceased’s estate according to the terms of her Will and to promote the orderly, efficient, and proper, administration of the estate according to the terms of the Will – Application granted

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Probate and Administration Act 1898 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Allesch v Maunz (2000) 203 CLR 172
Knorr v CSIRO (No 3) [2012] VSC 529
Mavrideros v Mack (1998) 45 NSWLR 80

Category: Principal judgment
Parties: Richard Leslie Hill (applicant)
Timothy Hill (respondent)
Representation:
Counsel:
A Flick (applicant)
Solicitors:
Breene & Breene Solicitors (applicant)

File Number(s): 2022/207498
Publication restriction: Nil

Judgment – EX TEMPORE (REVISED)

Introduction

By amended notice of motion, filed on 15 December 2022, the applicant, Richard Leslie Hill, for reasons to which I shall come, now seeks an order that letters of administration with the Will dated 14 November 1996 of Julie Anne Hill (the deceased) be granted to an independent administrator, Mark Desmond Bolster.
The respondent named in the amended notice of motion is Timothy Robert Hill. He has not filed an appearance and, as will be read, has appeared on only two of the many directions hearings that have occurred. He did not appear at the hearing on 11 May 2023 or today.
The deceased died on 31 March 2021 leaving property in New South Wales.
The original of the Will dated 14 November 1996 of the deceased has been delivered to the Court and remains in the Court file. (The Court had made an order for the delivery of the original Will addressed to solicitors in whose possession it was on 22 July 2022, and the order had been complied with.)
It was necessary to grant leave to the applicant to amend the date of the Will as sought in the amended notice of motion, as the Will referred to therein was said to be 14 November 1986. It was also necessary to permit the amendment of the identity of the independent administrator to be appointed. Neither amendment, in my view, could cause any prejudice to the respondent.
It appears that the deceased’s Will was executed in accordance with s 6 of the Succession Act

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 Hill v Hill

Details

AGLC: Hill v Hill [2023] NSWSC 612
Case: [2023] NSWSC 612
Decision Date: 31 May 2023

CaseChat Overview and Summary

The case of Hill v Hill involved a dispute between adult children of a deceased, focusing on the administration of their mother's estate. One of the children, the applicant, sought to have administration of the estate granted to an independent administrator with the deceased's Will annexed. This application arose because the estate could not be properly administered, and the other child, the respondent, was deemed non-active and largely uninvolved in the proceedings. The matter was heard in the Supreme Court of Queensland.

The legal issues before the court centred on the authority and discretion of the court to appoint an independent administrator to manage the estate, particularly in cases where a nominated executor declines to act. The court had to consider whether it was appropriate to intervene in the administration of the estate due to the respondent's lack of engagement and the necessity for the estate to be managed according to the deceased's wishes. Additionally, the court needed to assess whether the respondent's absence and lack of participation justified appointing an independent administrator.

In addressing these issues, the court emphasised the importance of ensuring that the deceased's estate is administered according to their wishes and in a manner that promotes efficiency and order. The respondent's minimal involvement, including not filing an appearance, affidavits, or attending the hearing, was noted as a significant factor. The court found that the respondent's inactivity warranted the appointment of an independent administrator to facilitate the proper administration of the estate. Consequently, the application was granted, allowing for the estate to be managed by an independent party in accordance with the deceased's Will.

The final orders of the court included the granting of administration with the Will annexed to an independent administrator, ensuring that the estate could be properly managed and that the terms of the deceased's Will were upheld. The court's decision was aimed at facilitating the efficient and orderly administration of the estate, reflecting its duty to act in the best interest of the estate and its beneficiaries.

Orders