Riccardi v Riccardi

[2013] NSWSC 1655

Supreme Court

New South Wales

Medium Neutral Citation:

Riccardi v Riccardi [2013] NSWSC 1655

Hearing dates:

11 November 2013

Decision date:

11 November 2013

Jurisdiction:

Equity Division

Before:

Lindsay J

Decision:

1. Order that a grant of administration to the plaintiff and the defendant be revoked.

2. Order that the plaintiff deposit the revoked grant in the Registry.

3. Order that letters of administration, with the will of the deceased annexed, be granted to the plaintiff alone.

4. Order that the proceedings be referred to the Registrar to complete the grant.

5. Sundry other orders not the subject of report.

Catchwords:

WILLS, PROBATE AND ADMINISTRATION - Probate - Letters of administration with will annexed - Application for revocation of grant - Where due and proper administration of estate prevented by continuation of one of two co-administrators - Form of orders - Order for revocation of grant, with fresh grant to continuing administrator.

Legislation Cited:

-

Cases Cited:

Bates v Messner (1967) 67 SR (NSW) 187 at 189 and 191 -192
McKerracher v McKerracher [2011] NSWSC 1288 at [10] - [14]
Mavrideros v Mack (1998) 45 NSWLR 80 at 107F-108C
Morgan v MacRae [2001] NSWSC 1017 at [21]
Profilio v Profilio [1999] NSWSC 657 at [33] - [34]
Wight; Wight v Robinson [2013] NSWSC 1229 at [11]-[22]

Texts Cited:

-

Category:

Principal judgment

Parties:

Jadom Kie Riccardi (Plaintiff)
Paul John Riccardi (Defendant)

Representation:

Counsel:
JE Armfield (Plaintiff)
Solicitors:
Mitchell Pleybunt Redburn as agent for Teece Hodgsen & Ward (Plaintiff)

File Number(s):

2013/00211282

Judgment - EX TEMPORE

1. In these proceedings, the plaintiff (one of two persons to whom a grant of administration has been made in respect of a deceased estate) seeks, inter alia, an order for revocation of the grant, accompanied by an order for a fresh grant to be made to him alone.

1. The defendant (the plaintiff's co administrator) has not appeared, today, to oppose the plaintiff's application. Nor has he filed a defence in answer to the statement of claim by which the plaintiff's application is made.

1. Nevertheless, he has appeared on a previous occasion on which the proceedings have been before a registrar of the court, and I am satisfied that he (personally and by his financial manager and former solicitors), has notice of the plaintiff's application.

1. In substance, if not in form, the plaintiff's application is for an order that the defendant be "removed" as his co-administrator of the deceased's estate.

1. That application is based, in essence, on experience demonstrating that the defendant has life management issues that have precluded him from taking a constructive role in the administration of the estate. The evidence demonstrates that his continued occupation of the office of an administrator of the estate is likely to impede due administration of the estate, as it has done to date.

1. A financial management order affecting the estate of the defendant has been made by the Guardianship Tribunal (pursuant to ss 25E and 25M(1)(a) of the Guardianship Act 1987 NSW), and the NSW Trustee has received no notice of any order (or any application for an order) that the financial management order be revoked.

1. Upon an application of the principles enunciated in Bates v Messner (1967) 67 SR (NSW) 187 at 189 and 191-192 and Mavrideros v Mack (1998) 45 NSWLR 80 at 107F-108C, I am satisfied that the plaintiff's substantive application should be granted. An executor or administrator may be removed where it appears that the due and proper administration of an estate has been put in jeopardy or has been prevented by reason of acts or omissions on the part of the executor or administrator, or by reason of matters personal to him, such as mental incapacity or ill health, establishing that he is not a fit and proper person to carry out the duties involved in the due administration of the estate. This is such a case.

1. Counsel for the plaintiff has drawn to my attention a difference between judges of the court as to the form of orders to be made upon a grant of the plaintiff's substantive application:

(a)   Morgan v MacRae [2001] NSWSC 1017 at [21] is authority for the proposition that the appropriate (and traditional) form of relief is an order for the revocation of the earlier grant of administration, coupled with an order for the making of a fresh grant and consequential orders.

(b)   Profilio v Profilio [1999] NSWSC 657 at [33] - [34] and McKerracher v McKerracher [2011] NSWSC 1288 at [10] - [14] are authority for the proposition that the court can (and, perhaps, ordinarily should) simply make an order that the co-administrator (a generic expression which I use to take in both an executor and an administrator) be removed from office, expressly without prejudice to the ongoing administration of the estate by the continuing administrator.

1. Although I remain open to persuasion to a contrary view in a particular case, I propose to adhere to the more traditional view of the court's procedure described in Morgan v MacRae. That is because:

(a)   an order for grant of administration (whether by way of a grant of probate or a grant of letters of administration) is in the nature of an instrument of title;

(b)   an order the revocation of a grant, coupled with orders for delivery up of the revoked grant and for the issue of a fresh grant, is likely, in this as in most cases, to facilitate the due administration of an estate by removing a spent grant from circulation or, at least, making express, clear provision for its removal from circulation; and

(c)   there remains utility in the distinction (albeit sometimes difficult in practice to differentiate) between the office of an executor (or administrator), on the one hand, and, on the other hand, the office of a trustee following completion of executorial duties: Estate Wight; Wight v Robinson [2013] NSWSC 1229 at [11]-[22].

(d)   in a case in which, as here, the grant sought to be revoked is a grant of administration with a will annexed (rather than a grant of administration in respect of an intestate estate) there is no material distinction between the process involved in revocation of a grant of probate and that involving revocation of a grant of administration. In each type of estate, in decision-making about the identity of a legal personal representative, allowance may need to be made for any expression of testamentary intention in a will of the deceased.

1. In taking this view I record that I accept that, as a matter of jurisdiction, it is open to the court, in an appropriate case, to adopt the procedure of merely ordering the removal from office of one or more of a larger number of persons to whom a grant of administration (in the form of probate or letters of administration) has been made.

1. I also accept that an argument can be made for adoption of that procedure as a means of passing over the sometimes difficult question of identification of the point at which executorial duties are at an end, and the duties of a trustee are taken up, in distinguishing between "removal" of an executor (or administrator) and removal of a trustee.

1. However, my own judgement, at least in the current case, is that the traditional approach is both correct beyond argument and no less efficacious than the more summary approach adopted in Profilio v Profilio and McKerracher v McKerracher.

1. For these reasons, I have made orders providing for revocation of a grant of administration earlier made, delivery up to the Court's Registry of the revoked form of grant, and the issue of fresh letters of administration (with the deceased's will annexed), subject to completion of the formalities of the grant.

**********

Decision last updated: 12 November 2013