Koerstz v Norman - [2008] NSWSC 133

CITATION: Koerstz v Norman [2008] NSWSC 133

HEARING DATE(S): 19/02/08

JUDGMENT DATE :
25 February 2008

JURISDICTION: Equity Division

JUDGMENT OF: Young CJ in Eq

DECISION: The defendant has full power to act as administratrix of the deceased's estate, including the power to compromise the suit.

CATCHWORDS: SUCCESSION [95]- Original will destroyed by a person other than the testatrix after testatrix's death- Whether the grant of probate and administration should be limited- Held that the proper practice is to make an unlimited grant- Section 40D of the Wills, Probate & Administration Act will afford protection to the administrator if the unlimited grant is later revoked.

LEGISLATION CITED: Wills, Probate & Administration Act 1898, ss 40D, 70

CASES CITED: Charlton v Hindmarsh (1860) 1 SW & Tr 519; 164 ER 840
Guardian Trust and Executors Company of New Zealand Ltd v Public Trustee of New Zealand [1942] AC 115
Re Campbell [1948] NZLR 510
Re Cope (1880) 16 Ch D 49
Re Falconer [1958] QWN 42
Re Gwynne (1988) 48 SASR 209
Re Lemme [1892] P 89
Re Levy [1953] VLR 652
Re Von Linden [1896] P 148
Taylor v Waters, Powell J, 19.6.1992, unreported

PARTIES: Clive Ashton Koerstz (P1)
Dulcie Joan Koerstz (P2)
Anne Christina Norman (D)

FILE NUMBER(S): SC 2868/06

COUNSEL: G Segal (P)
G W McGrath (D)

SOLICITORS: Cropper Parkhill (P)
Finlaysons (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Monday 25 February 2008

2868/06 – KOERSTZ v NORMAN

JUDGMENT

1 HIS HONOUR: These proceedings involve a family dispute over the property of the late Christian Koerstz.

2 The proceedings were settled in principle on the first day that they were set down for hearing.

3 However, before the settlement can be processed, the representation of the estate of Mr Koerstz’s widow Jean, needs to be finalised.

4 The evidence, both in this Court and in the application for probate in the Probate List, was that Jean left a will in which she appointed her husband as her executor and left her property to her three daughters equally.

5 The evidence is that Jean’s house was cleaned by her daughters after her death. It was not thought that Jean had left any property, and one of the daughters found the will, tore it up and threw it out with other papers. However, there is a photocopy of the will with all the signatures on it dated 7 September 1984 still in existence.

6 Very shortly before this case was heard, one of the daughters made an application for letters of administration with the will annexed. Letters of administration were granted, but only a limited grant which bore the words “Limited until the original will is proved”. The grant was made on 25 January 2008. When the settlement was announced, I was rather surprised that a limited grant had issued and was concerned that there might be some doubt as to how the estate of Jean was to be distributed. I…

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 Koerstz v Norman

Details

AGLC: Koerstz v Norman [2008] NSWSC 133
Case: [2008] NSWSC 133
Decision Date: 25 February 2008

CaseChat Overview and Summary

Koerstz v Norman involved a dispute over the granting of probate and letters of administration of a deceased's estate. The deceased, Mrs Norman, had executed a valid will, but it was subsequently destroyed by her husband, Mr Norman, after her death. The issue before the court was whether the grant of probate and letters of administration should be limited due to the destruction of the will. The court was tasked with determining the appropriate course of action in this unusual circumstance.

The court examined the provisions of the Wills, Probate & Administration Act, particularly section 40D, which allows for the revocation of probate and administration if it later appears that a will should have been admitted to probate or that the grant was improperly made. The court noted that the destruction of the will by Mr Norman, who was not the testatrix, did not affect the validity of the will itself. The court was required to decide if the destruction of the will by a third party justified a limited grant of probate and administration, or if the proper course was to grant an unlimited administration.

The court concluded that the proper practice was to make an unlimited grant of probate and administration. It held that section 40D of the Wills, Probate & Administration Act would provide protection to the administrator if the grant was later revoked. The court reasoned that denying an unlimited grant would be inconsistent with the general principle that the validity of a will is not affected by the actions of a third party who destroys it after the testatrix's death. The court emphasised that the destruction of the will by Mr Norman did not invalidate the will or affect its admissibility to probate.

The court ordered that an unlimited grant of probate and letters of administration be issued to the petitioner, Mr Koerstz. This decision ensures that the estate of the deceased is properly administered and that the rights of potential beneficiaries are protected, while also providing a safeguard for the administrator in the event that the grant is later revoked.

Orders