Murdoch and Brown (No. 2) - [2013] FamCA 732

FAMILY COURT OF AUSTRALIA

MURDOCH & BROWN (NO. 2)

[2013] FamCA 732

FAMILY LAW – LEGAL PERSONAL REPRESENTATIVE – Can a legal personal representative order be made before a grant of probate? – Order made because no challenge to will and executors clearly designated.

Family Law Act 1975 (Cth)

Byers & Overton Investments Proprietary Limited (2001) 109 FCR 554
Cullen & Cullen [2011] FMCAfam 375
Easton & Carter (1850) 5 Exchequer Reports; 155 E.R. 4
Hawkins & Clayton [1988] HCA 15
Korsky & Bright & Anor [2007] FamCA 245
Midhurst [2008] FamCA 393
Re Cohen [1975] VR 187
Ryan & Davies Bros Limited (1921) 29 CLR 527
Strelys (1988) FLC 91-961

APPLICANT:

Ms Murdoch

RESPONDENT:

Mr Savva and Mr Gould as Executors of the Estate of the late Mr Brown

FILE NUMBER:

MLC

9886

2010

DATE DELIVERED:

22 July 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

22 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Testart

SOLICITOR FOR THE APPLICANT:

Kennedy Partners

COUNSEL FOR THE RESPONDENT:

Mr Nicholson

SOLICITOR FOR THE RESPONDENT:

Schetzer Constantinou

Orders

That the applications by the wife for orders relating to the solicitors for the estate and the enforcement of extant orders is adjourned to 10.00am on 25 July 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Murdoch & Brown (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9886 of 2010

Ms Murdoch

Applicant

And

Mr Savva and Mr Gould as Executors of the Estate of the late Mr Brown

Respondent

REASONS FOR JUDGMENT

Before the Court in the Judicial Duty List on 18 July was the wife’s application for interlocutory orders seeking, inter alia, injunctions against the respondent from engaging a particular legal practitioner from acting for the estate of the husband, and for enforcement of existing orders. The husband died earlier this year, and the respondents were subsequently named as his representatives. Prior to dealing with the interlocutory issues, a preliminary point was taken by counsel for the respondent. Simply put, it was submitted that an order made by a registrar, albeit by consent of all parties, nominating the present executor as the legal personal representatives of the husband, was ultra vires because at that time, no grant of probate had been made by the Supreme Court of Victoria. It was therefore submitted that the Family Law Act 1975 (Cth) (“the Act”) required the husband to be represented by a legal personal representative, and at this time, as a grant of probate had not been made the order could not stand.
The order was made by the Registrar on 15 May 2013. It was common ground that the husband had left a will, and that the respondents are the executors under it. The respondent acknowledged that, in respect of the order subsequently made to that on 15 May,…

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 Murdoch and Brown (No. 2)

Details

AGLC: Murdoch and Brown (No. 2) [2013] FamCA 732
Case: [2013] FamCA 732
Decision Date

CaseChat Overview and Summary

In *Murdoch & Brown (No. 2)*, the Family Court of Australia considered an application by the wife for interlocutory orders, including injunctions against the respondent executors of her deceased husband's estate. The central issue arose from a preliminary point taken by the respondents, who argued that an order made by a registrar, appointing them as legal personal representatives of the deceased, was invalid because no grant of probate had yet been issued by the Supreme Court of Victoria. The respondents sought to discharge this order, proposing its reinstatement only after probate was granted.

The court was required to determine whether a legal personal representative could be formally appointed or recognised in Family Court proceedings before a grant of probate had been obtained. This involved considering the source of an executor's authority and the role of a grant of probate in authenticating that authority, particularly in the context of Family Court Rules and relevant case law. The court also had to assess whether the existence of a limited grant *ad colligenda bona* affected the respondents' capacity to act.

Justice Cronin, agreeing with the wife, reasoned that an executor derives their power and responsibility from the will itself, not from the grant of probate. The grant of probate serves as formal authentication of the executor's role, particularly if the will's authority is challenged. However, where there is no dispute regarding the validity of the will or the appointment of the executors, as was the case here, the absence of a grant of probate does not invalidate procedural orders made by the court. The court distinguished this situation from cases where a dispute about the executor's entitlement necessitates a stay pending the grant of probate. The court found that the Family Law Rules do not mandate a grant of probate for procedural orders, and that an executor can commence or continue proceedings in their capacity based on the will, provided their entitlement is not challenged.

Consequently, the application to discharge the registrar's order was dismissed, and the application for a stay of proceedings was refused. The interlocutory applications concerning the solicitors for the estate and the enforcement of extant orders were adjourned to a later date.

Orders