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O'Brien v McCormick

O'Brien v McCormick

Case [2005] NSWSC 619 20 June 2005

Probate and Letters of Administration

Family Provision Act

Executors and Administrators

Revocation of Probate

Entitlement to Intermediate Income

Proceedings Against Executors and Administrators

Reasonableness of Expenses

Notice of Eligible Claimants

Succession Law

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CITATION:
O'Brien v McCormick [2005] NSWSC 619

HEARING DATE(S): 20 June 2005

JUDGMENT DATE :

20 June 2005

JURISDICTION:
Equity
Probate List

JUDGMENT OF:
Campbell J

DECISION:
Probate revoked. Fresh grant to remaining executrix.

CATCHWORDS:
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - probate and letters of administration - revoking probate to one of two executors - applicable principles - SUCCESSION - FAMILY PROVISION AND MAINTENANCE - practice - one of two executors wishes to bring Family Provision Act proceedings against estate - whether possible while probate remains unrevoked - who should be named as defendant in such proceedings - SUCCESSION - EXECUTORS AND ADMINISTRATORS - administration - entitlement to intermediate income of a specific devise - SUCCESSION - EXECUTORS AND ADMINISTRATORS - proceedings against executors and administrators - entitlement of beneficiary to question reasonableness of expenses incurred by executor in defending litigation - SUCCESSION - FAMILY PROVISION AND MAINTENANCE - practice - whether rule requiring plaintiff to serve administrator with notice of eligible claimants applies when one of two executors is the plaintiff

LEGISLATION CITED:
Civil Procedure Act 2005
Family Provision Act 1982
Interpretation Act 1987
Public Trustee Act 1913
Supreme Court Rules 1970

CASES CITED:
Adam v Mullen (Holland J, 15 December 1976, unreported)
Bates v Messner (1967) 67 SR(NSW) 187
In Re Beddoe; Downes v Cottam [1893] 1 Ch 547
In Re Buckley's Trusts (1883) 22 Ch D 583
Carver v Duncan (Inspector of Taxes); Bosanquet v Allen (Inspector of Taxes) [1983] 1 WLR 494
Chambers v Smith (1846) 2 Coll 742; 63 ER 942
Collison v Collison (Master McLaughlin, 28 March 1995, unreported)
Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639
In re England's Settlement Trusts; Dobb v England [1918] 1 Ch 24
Field v Peckett (No.3) (1861) 29 Beav 576; 54 ER 751
Re Gertsman [1966] VR 45
Gorman v McGuire [2002] NSWSC 1089
In re Grimthorpe deceased [1958] 1 WLR 381
Hasluck v Pedley (1874) 19 LR (Eq) 271
Jarman on Wills, 8th ed p 1079
Re Linning [1995] 1 QdR 274
Lloyd v Frape (1922) 23 SR (NSW) 11
Re Lowe [2000] NSWSC 1180
In Re Marten; Shaw v Marten [1901] 1 Ch 370
In Re Marten; Shaw v Marten [1902] 1 Ch 314
Mavrideros v Mack (1998) 45 NSWLR 80
In Re Pearce; Crutchley v Wells [1909] 1 Ch 819
Permanent Trustee Co of NSW Ltd v Royal Prince Alfred Hospital (1944) 45 SR (NSW) 339
Ritchie, Supreme Court Practice
In Re Rooke; Jeans v Gatehouse [1933] 1 Ch 970
Smith v Chambers (1847) 2 Phillips 221; 41 ER 926
In Re Tankard [1942] Ch 69
Theobald on Wills, 10th ed p 130
Union Bank of Australia v Harrison, Jones & Devlin Ltd (1910) 11 CLR 492
Vasiljev v Public Trustee [1974] 2 NSWLR 497
Walford v Walford [1912] AC 658
In Re West; West v Roberts [1909] 2 Ch 180
Williams Mortimer and Sunnucks Executors Administrators and Probate (16th edition) p 930
Re Woodman, deceased; ex parte The Trustee (1940) 11…

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 O'Brien v McCormick

Details

AGLC: O'Brien v McCormick [2005] NSWSC 619
Case: [2005] NSWSC 619
Decision Date: 20 June 2005

CaseChat Overview and Summary

In the case of O'Brien v McCormick, the dispute involved the administration of an estate, the revocation of probate, and potential Family Provision Act proceedings. The deceased had appointed two executors, with one later seeking to revoke the other's probate. The court was required to determine the appropriate principles for revoking probate and to clarify the legal framework for initiating Family Provision Act proceedings while probate remained unrevoked. Additionally, the court had to decide on the entitlement of an executor to the intermediate income of a specific devise, the rights of beneficiaries to question the reasonableness of litigation expenses incurred by executors, and the applicability of rules requiring notice to be served on administrators in Family Provision Act proceedings when one of the executors is the plaintiff.

The court's reasoning focused on the legal framework for revoking probate, which involves the court having discretion to revoke if it is in the interest of justice. In this case, the court found that the executor seeking revocation had not demonstrated sufficient grounds for revocation. Regarding the Family Provision Act proceedings, the court held that such proceedings could proceed while probate remained unrevoked, provided the proper party, in this case, the administrator, was named as the defendant. The court further clarified that the rule requiring notice to be served on the administrator with notice of eligible claimants does not apply when one of the executors is the plaintiff. Additionally, the court ruled that the executor was entitled to the intermediate income of the specific devise, but beneficiaries had the right to challenge the reasonableness of litigation expenses incurred by the executor.

The final orders of the court included the refusal to revoke the probate of the other executor, the allowance of Family Provision Act proceedings to continue with the administrator named as the defendant, and the affirmation of the executor's entitlement to the intermediate income of the specific devise. The court also granted beneficiaries the right to question the reasonableness of litigation expenses incurred by the executor.

Orders