Lea v Lea

In the matter of Lea v Lea, the plaintiff sought to have the assets of the deceased's estate held on constructive trust for herself and the first defendant, who was the executor of the estate. The plaintiff also sought damages or a family provision order, as well as sums alleged to be owing to the estate from the second defendant, who was the trustee. The plaintiff applied for the revocation of the first defendant's grant of probate and the appointment of an independent administrator. The first defendant consented to the revocation of his grant and the appointment of an independent administrator on a without admissions basis. The court considered the identity of the appropriate independent administrator and made orders for the revocation of the grant and the appointment of an independent administrator.

The court was required to decide whether the first defendant should be appointed to represent the estate in the defence of the proceedings, in circumstances where he was the only person with personal knowledge relevant to the issues in dispute. The court considered whether the Uniform Civil Procedure Rules 2005 (NSW) r 7.10(2)(b) was applicable in circumstances where the independent administrator would be joined to the proceedings. The court found that the rule was not applicable and did not make an order for the first defendant to represent the estate.

The court also considered whether the plaintiff should receive an interim distribution from sources which could more promptly realise funds than a property in Kensington which the plaintiff was bequeathed under the Will. The court found that it was necessary for the independent administrator to also have some cash available and made orders for interim distribution in accordance with the regime agreed between the parties. The court also considered whether the first defendant executor should pay the plaintiff's costs of the application personally, in circumstances where the first defendant failed to put on evidence or indicate his position on the relief sought on the plaintiff's application until effectively the day before the hearing, only to substantially concede (on a without admissions basis) to the primary relief sought. The court found that the first defendant executor should pay the plaintiff's costs of the application incurred over the period specified personally.