Jurkiewicz v Jurkiewicz

[2013] ACTSC 89

STEFAN CHARLES JURKIEWICZ v WALDEMAR JURKIEWICZ & ANOR
 [2013] ACTSC 89 (16 May 2013)

PROBATE AND ADMINISTRATION – will of mother appointing sons as joint executors – intractable dispute between sons as to extent of assets – leave granted to independent solicitor to apply for letters of administration with will annexed – applicant’s costs to be paid out of estate – no order for costs of unsuccessful respondent

Administration and Probate Act 1929 (ACT) s 25 and s 32
Courts Procedures Rules 2006 (ACT) r 3114

Estate of Keith Chandler Crane (2005) 93 SASR 198
Bourdales v Carroll [2007] NSWSC 1057
Simpson v Hodges [2007] NSWSC 1230
Yazbek v Yazbek (No 2) [2012] NSWSC 783

No. SC 256 of 2012

Judge:              Master Harper  
Supreme Court of the ACT

Date:               16 May 2013

IN THE SUPREME COURT OF THE       )
  )          No. SC 256 of 2012
AUSTRALIAN CAPITAL TERRITORY    )          

BETWEEN:  STEFAN CHARLES

JURKIEWICZ

Applicant        

AND:  WALDEMAR JURKIEWICZ

First Respondent

AND:  THE PUBLIC TRUSTEE

FOR THE ACT

Second Respondent

ORDER

Judge:  Master Harper
Date:  16 May 2013
Place:  Canberra

THE COURT ORDERS THAT:

1. John Astley Buxton have leave to apply for letters of administration of the estate of the late Alexandra Jurkiewicz with her will dated 5 May 2005 annexed.

1. The applicant’s costs of the application be paid out of the estate of the late Alexandra Jurkiewicz.

1. Alexandra Jurkiewicz died in February 2011.  Her husband had predeceased her by almost twelve years.  She was survived by four sons.  She made her last will on 5 May 2005, appointing the two elder sons (the applicant and the first respondent) as executors.  There has not yet been any application for probate or administration of her estate.

1. The applicant instituted these proceedings by originating application in August 2012, asking that both brothers be removed as executors and that the second respondent, the Public Trustee, be appointed as administrator.  The applicant seeks an ancillary order that the first respondent pay his costs of the proceedings.

1. The grounds stated in the application are that the named executors have failed to apply for probate or to renounce their appointments; the first respondent continues to make serious unsubstantiated allegations against the applicant about matters not relevant to obtaining a grant of probate; and due to the history between the parties, no agreement is likely to be forthcoming to enable the named executors to obtain a grant of probate.

1. The application is supported by affidavits by the applicant and by a solicitor having the conduct of the matter within the firm acting for him.  Both annex a substantial bundle of correspondence in the form of letters and emails between the application and his solicitor on the one hand and the first respondent on the other.  The applicant also annexes a copy of his mother’s will.  There is no issue about its contents or validity.

1. By her will, the deceased left monetary legacies ($30,000 each) to two of her grandsons and a car to a third grandson.  She left “any…