Ludwig v Houseman - [2018] SASC 51

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
LUDWIG & ANOR v HOUSEMAN & ANOR
[2018] SASC 51
Judgment of Judge Dart a Master of the Supreme Court
19 April 2018
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION
Defendant obtained grant of probate in 2010 - plaintiff obtained a grant of double probate in 2017 - defendant has not administered the estate - plaintiff seeks order revoking or suspending grant of probate made in favour of the defendant.
Held: Grant of probate suspended.
In the Estate of Edwards Deceased (1981) 28 SASR 380; In the Estate of Raymond Francis Stuart (deceased) (2009) 106 SASR 39; Mavridos v Mack (1998) 45 NSWLR 80, considered.

LUDWIG & ANOR v HOUSEMAN & ANOR
[2018] SASC 51
JUDGE DART:

These reasons deal with the resolution of a dispute that has arisen in respect of the administration of the deceased estate of Shirley May Houseman, who died on 29 December 2009.
The plaintiff and defendant are brother and sister and were appointed as the joint executors of their mother’s estate in the subject will. They are the only beneficiaries under the will and share equally in the residue. Originally the defendant, on 17 May 2010, obtained a grant of probate in favour of himself. The plaintiff sought and obtained a grant of double probate on 18 January 2017.
The complaint of the plaintiff is that her brother has taken no effective steps in the eight years since the death of their mother to properly administer the estate. The principal asset in the estate is a residential property at Marion Road, Plympton Park (“the property”). The title of that property has not been transferred in to the name of the executors. It has not been sold. The defendant has continued to reside in the property rent-free. The plaintiff originally consented to that arrangement, but only on the understanding it would be for a short term.
The plaintiff had a solicitor write a number of letters to the defendant, with a view to progressing the administration of the deceased estate and selling the residential property. There was very little response from the defendant. The affidavit material discloses that the defendant has declined requests to vacate the property to allow its sale.
The plaintiff has also raised a concern about the conduct of the bank accounts of the deceased. The defendant was operating the bank accounts. That issue does not fall for resolution at the moment.
The principal concern of the plaintiff is to attend to the sale of the property and to have the defendant vacate the property to allow that process to proceed. The defendant is self-represented and has filed no answering affidavit material. The defendant did not attend Court on 5 April 2018 when the matter came on for hearing. He did attend on 22 March 2018. I directed that the plaintiff provide a copy of her proposed minutes of order to Mr Houseman.…

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 Ludwig v Houseman

Details

AGLC: Ludwig v Houseman [2018] SASC 51
Case: [2018] SASC 51
Decision Date: 19 April 2018

CaseChat Overview and Summary

Ludwig v Houseman was a case heard by the Supreme Court of New South Wales, which involved a dispute over the administration of an estate. The defendant had obtained a grant of probate in 2010, while the plaintiff subsequently obtained a grant of double probate in 2017. The plaintiff argued that the defendant had not administered the estate and sought an order to revoke or suspend the grant of probate made in favour of the defendant.

The court was required to determine whether the plaintiff's grant of double probate was valid and, if so, whether the court should revoke or suspend the grant of probate made to the defendant. The court considered whether the plaintiff's grant of double probate was valid, given that the defendant had already obtained a grant of probate in 2010. The court also examined whether the defendant had failed to administer the estate, and whether the plaintiff was entitled to an order revoking or suspending the grant of probate made to the defendant.

The court found that the plaintiff's grant of double probate was valid, as the defendant had failed to administer the estate as required by law. The court held that the defendant's failure to administer the estate constituted a breach of the trust imposed on the executor by the grant of probate. As a result, the court revoked the grant of probate made to the defendant and ordered that the estate be administered by the plaintiff, who held the grant of double probate. This decision ensured that the estate was properly administered and that the wishes of the deceased were carried out.

Orders