Lawless v Donaldson - [2012] NSWSC 570

Supreme Court

New South Wales

Medium Neutral Citation: Lawless v Donaldson; Estate of Donaldson [2012] NSWSC 570
Hearing dates: Monday, 21 May 2012
Decision date: 21 May 2012
Jurisdiction: Equity Division - Probate List
Before: White J
Decision:
Refer to paras [14], [16], and [17] of judgment.

Catchwords: WILLS, PROBATE AND ADMINISTRATION - probate - application for revocation of probate - where due and proper administration of estate prevented by omissions of one of two executors in office - failure to comply with duties as an executer to realise the assets with reasonable diligence to enable debts to be paid and distributions made - defendant not a fit and proper person to carry out the duties of executor - form of orders - existing grant of probate revoked - probate granted to plaintiff alone
Legislation Cited: Local Government Act 1993
Cases Cited: Bates v Messner (1967) 67 SR (NSW) 187
Mavrideros v Mack (1998) 45 NSWLR 80
Category: Interlocutory applications
Parties: Lynette Anne Lawless (Plaintiff in 2010 proceedings)
Alan John Donaldson (Defendant)
Representation: Counsel:
J Trebeck (Plaintiff)
A Hill (Defendant)
Solicitors:
Lucas & Associates (Plaintiff)
Armstrongs Solicitors (Defendant)

File Number(s): 2010/274165; 2012/113956

Judgment

HIS HONOUR: These proceedings concern the estate of Lorna June Donaldson, who died on 9 April 2010. By her last will of 15 October 2003, the deceased appointed the plaintiff and the defendant as the executors and trustees of her estate. After some pecuniary legacies, she left the residue of her estate to the plaintiff and the defendant in equal shares. Probate of the will was granted on 25 August 2010.

This is an application by the plaintiff to revoke that grant and for an order that probate of the deceased's will be granted to the plaintiff alone. In substance, the application is for the removal of the defendant as one of the executors.

The plaintiff and the defendant are sister and brother. The principal asset of the estate is a property in Fishing Point, New South Wales. Apart from that property, the estate consisted of only a cash sum of approximately $2,876. The defendant was in occupation of the Fishing Point property for more than 10 years before his mother's death.

After the deceased's death, the plaintiff has endeavoured to obtain the defendant's agreement for the doing of those steps that have to be done for the property to be sold. The Fishing Point property has to be sold not only because the plaintiff is beneficially entitled to half of the estate, but also because there are testamentary expenses which have to be paid from the estate.

The defendant states in his defence that he has not resisted attempts to sell the property and has not refused to vacate the property, but has rather expressed his willingness to do so. Notwithstanding those averments, the defendant has done nothing to allow the property to be sold.

On 14 October 2010 the solicitor retained to act for the estate, Ms Lucas, wrote to the defendant, asking him to…

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 Lawless v Donaldson

Details

AGLC: Lawless v Donaldson [2012] NSWSC 570
Case: [2012] NSWSC 570
Decision Date: 21 May 2012

CaseChat Overview and Summary

The case of Lawless v Donaldson involved an application for the revocation of a grant of probate. The plaintiff sought to have the probate of the will of the deceased revoked and for it to be granted to her alone. The defendant, who was also an executor under the will, opposed the application. The dispute arose due to the defendant's failure to properly administer the estate, which prevented the due and proper administration of the estate. The court had to determine whether the defendant's conduct warranted the revocation of the probate and if the plaintiff was a fit and proper person to hold the grant of probate alone.

The central legal issue was whether the defendant's omissions and failure to comply with her duties as an executor justified the revocation of the probate. The court examined whether the defendant's actions, which included not realising the assets with reasonable diligence, had hindered the payment of debts and distributions to beneficiaries. Additionally, the court had to assess the plaintiff's suitability to act as the sole executor of the estate.

The court found that the defendant's conduct warranted the revocation of the probate, as her omissions had indeed hindered the proper administration of the estate. The court held that the defendant was not a fit and proper person to carry out the duties of executor. Consequently, the court revoked the existing grant of probate and granted it to the plaintiff alone. The court's decision was based on the defendant's failure to discharge her duties as an executor and the plaintiff's demonstrated capability to administer the estate properly.

Orders