Jurkiewicz v Jurkiewicz

Case [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…

Continue reading Jurkiewicz v Jurkiewicz

Sign in free to access the full text

Details
AGLC
Jurkiewicz v Jurkiewicz [2013] ACTSC 89
Case
[2013] ACTSC 89
Decision Date

CaseChat Overview and Summary

In the matter of Jurkiewicz v Jurkiewicz, the court was tasked with addressing a dispute between two brothers, both appointed as executors in their mother’s will. Alexandra Jurkiewicz had appointed her sons as joint executors of her estate, but a profound disagreement arose over the valuation and distribution of her assets. The High Court of Australia was called upon to resolve the dispute and to determine the appropriate course of action.

The primary legal issue before the court was whether an independent solicitor, John Astley Buxton, should be granted leave to apply for letters of administration with the will annexed, given the brothers' inability to agree on the estate's management. The court had to consider the necessity of such a step to ensure the orderly administration of the estate and the implications for the beneficiaries. Additionally, the court needed to decide on the allocation of costs between the parties involved in the application.

The court concluded that an intractable dispute between the executors warranted intervention to prevent the estate from being left in limbo. The judge found that an independent solicitor could impartially manage the estate's administration and ensure the will was properly executed. Consequently, the court granted John Astley Buxton leave to apply for letters of administration with the will annexed. The court also ruled that the applicant's costs were to be paid out of the estate, while declining to order the unsuccessful respondent to pay any costs.

Orders

Orders of the court

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.

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

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.