Irvine v McGrath
[2003] NSWSC 8
•27 January 2003
CITATION: Irvine v McGrath & Anor [2003] NSWSC 8 HEARING DATE(S): 27 January 2003 JUDGMENT DATE:
27 January 2003JURISDICTION:
Equity DivisionJUDGMENT OF: Sperling J at 1 DECISION: 1. The first defendant be restrained until 5 pm on Monday, 10 February 2003 from dealing with or making any distribution of the assets of the estate of Patricia June Irvine, pursuant to grant of probate number 121087 of 2002; 2. The first and second defendants be restrained until 5 pm on Monday, 10 February 2002 from dealing with any assets or the proceeds of sale, realisation or transfer of any assets of the said estate; 3. A copy of the summons herein, of the affidavits of M R Irvine and J Michael sworn 27 January 2003, and of these orders be served on the defendants by 5 pm on 28 January 2003; 4. A copy of these orders to be delivered to the Registrar in Probate by 10.30 am on 28 January 2002; 5. An amended summons, claiming further relief and affidavit evidence in support thereof, to be filed and served by 5 pm on 5 February 2002, such amended summons to be returnable on 10 February 2002; 6. Costs reserved. CATCHWORDS: No question of principle PARTIES :
Mark Robert Irvine
Michael Marcus McGrath
Nadine Antoinette McGrathFILE NUMBER(S): SC 1223/03 COUNSEL: Mr M Cranitch SC for the Plaintiff
No appearance for the DefendantsSOLICITORS: Nevill & Edwards Solicitors for the Plaintiff
No appearance for the Pefendants
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
Sperling J
Monday, 27 January 2003
Judgment1223/03 Irvine v McGrath & Anor
1 His Honour: Patricia June Irvine died on 27 October 2002. Probate of a will made by her on 18 October 2002 has been granted to Michael Marcus McGrath as executor. He is the deceased’s nephew. He and Nadine Antoinette McGrath are the beneficiaries under the will. They are the defendants in proceedings instituted by a nephew of the deceased, Mark Robert Irvine.
2 Mr McGrath is the son of the deceased’s brother. Ms McGrath is his wife. Mr Irvine is the son of the deceased’s husband’s sister.
3 The deceased died a widow, without children, or surviving parents or siblings.
4 It appears that there was an earlier will, particulars of which are not presently known.
5 On the evidence before me, it appears the deceased was, in her life time, close to her late husband's family, including her nephew, the plaintiff, and her niece, the plaintiff's sister, Jan Michael.
6 It appears that the deceased's health deteriorated significantly in October 2002, when she became weak and confused. It appears that on 12 October 2002 she mistook the plaintiff for his brother, John, notwithstanding that both men were intimately known to her; and there is other evidence of deterioration in her mental state. The deceased had sold the house in which she had been living and was living in rented accommodation at that time. On 12 October 2002 the deceased was taken to the home of the defendants. The deceased was admitted to the Nepean Hospital for about two days in about mid October. It appears that the will, under which probate has been granted, was made a few days later.
7 The McGrath home is at Penrith. The witnesses to the will gave their addresses as Emu Plains and Penrith. On the face of it, it appears that the will was executed at the time when the deceased was in the care of the defendants.
8 The plaintiff, in an affidavit sworn on 27 January 2003, and Ms Michael, in an affidavit sworn the same date, express apprehension that the will, for which probate was granted, was made by the deceased without testamentary capacity or otherwise ineffectually, and that the assets of the estate, being as they apprehend in relatively liquid form, might be dealt with in a way which would make it difficult to trace the proceeds under such further orders as the court might make.
9 On this evidence, that there is a serious issue to be tried as to the efficacy of the will, and that the balance of convenience requires that there should be no further dealings in relation to the assets of the estate on an interim basis.
10 On the plaintiff, by his counsel giving to the court the usual undertaking as to damages, the court orders:
1. The first defendant be restrained until 5 pm on Monday, 10 February 2003 from dealing with or making any distribution of the assets of the estate of Patricia June Irvine, pursuant to grant of probate number 121087 of 2002.
2. The first and second defendants be restrained until 5 pm on Monday, 10 February 2002 from dealing with any assets or the proceeds of sale, realisation or transfer of any assets of the said estate.
3. A copy of the summons herein, of the affidavits of M R Irvine and J Michael sworn 27 January 2003, and of these orders be served on the defendants by 5 pm on 28 January 2003.
4. A copy of these orders to be delivered to the Registrar in Probate by 10.30 am on 28 January 2002.
6. Costs reserved.5. An amended summons, claiming further relief and affidavit evidence in support thereof, to be filed and served by 5 pm on 5 February 2002, such amended summons to be returnable on 10 February 2002.
Last Modified: 01/30/2003
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