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Riccardi v Riccardi

Riccardi v Riccardi

Case [2013] NSWSC 1655 11 November 2013

Probate

Letters of Administration

Revocation of Grant

Succession Law

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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

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.

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.

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.

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.

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.

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…

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 Riccardi v Riccardi

Details

AGLC: Riccardi v Riccardi [2013] NSWSC 1655
Case: [2013] NSWSC 1655
Decision Date: 11 November 2013

CaseChat Overview and Summary

The parties in this case were the executors of the estate of the deceased, who had passed away intestate. The legal dispute arose when one of the two co-administrators of the estate sought to revoke the grant of letters of administration with will annexed. The case was heard in the Supreme Court of New South Wales. The legal issues that the court needed to address were whether the continued administration by one of the co-administrators had prevented the due and proper administration of the estate, and what form of orders should be made in light of the revocation.

The court considered the circumstances that had led to the application for revocation and found that the continued administration by one of the co-administrators had indeed prevented the proper administration of the estate. The court held that the co-administrator's actions had created a deadlock, which had prevented the estate from being administered effectively. The court noted that the co-administrator had acted in a way that was inconsistent with the terms of the grant and had failed to act in the best interests of the estate and its beneficiaries. The court also considered the form of orders that should be made in light of the revocation. The court held that the appropriate course of action was to revoke the grant of letters of administration with will annexed and to issue fresh letters of administration to the continuing administrator. The court held that this would allow the estate to be administered properly and in accordance with the law.

The final orders made by the court were that the grant of letters of administration with will annexed be revoked, and that fresh letters of administration be issued to the continuing administrator. The court held that this would allow the estate to be administered effectively and in accordance with the law. The court also noted that the revocation of the grant would not have any adverse consequences for the continuing administrator, as they would still be able to act as an administrator of the estate. The court held that this was the most appropriate course of action in the circumstances of the case.

Orders