Schaverien v Jones - [2007] NSWSC 1429

CITATION: SCHAVERIEN & ANOR v JONES [2007] NSWSC 1429

HEARING DATE(S): 4, 5/10 & 27 & 30/11/2007

JUDGMENT DATE :
11 December 2007

JURISDICTION: PROBATE

JUDGMENT OF: Bryson AJ at 1

DECISION: 1. With effect on the date of this order, Revoke Probate of the will of the late John Lawrence Sheaffer granted on 9 November 2005 to Lynette Regina Schaverien, Caroline Frances Jones and Geraldine Siba Winnett; 2. Order that the Probate document be forthwith delivered to the Registrar and be cancelled by him; 3. Grant Probate of the last will and testament of the late John Lawrence Sheaffer late of Northbridge in the State of New South Wales Engineer deceased to Lynette Regina Schaverien of 31 Kendall Road Castle Cove New South Wales and Geraldine Siba Winnett of 17 Fred Williams Crescent North Lyneham in the Australian Capital Territory two of the executors appointed under the will; 4. Order that the defendant pay the plaintiffs’ costs of the proceedings.

CATCHWORDS: WILLS, PROBATE and ADMINISTRATION - probate - revocation of grant - conduct of executor - on extensive consideration of events in estate administration where there had not been effective co-operative action by three executors the grant was revoked and a further grant was made to two of them.

LEGISLATION CITED: Civil Procedure Act 2005 s 26
Supreme Court Act 1972 s 63

CASES CITED: Bates v Messner (1967) 67 SR (NSW) 187
Gibson v Buchanan [2004] NSWSC 957
In the Goods of Loveday [1900] P 154
McDonald v Ellis [2007] NSWSC 1068
Mavrideros v Mack (1998) 45 NSWLR 80

PARTIES: Lynette Regina Schaverien - 1st Plaintiff
Geraldine Siba Winnett - 2nd Plaintiff
Caroline Frances Jones - Defendant

FILE NUMBER(S): SC 108076 of 2007

COUNSEL: M. Willmott SC - Plaintiffs
R.D. Wilson - Defendant

SOLICITORS: Teece Hodgson & Ward - Plaintiff
Business Lawyers (Liverpool) P/L - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

BRYSON AJ

Tuesday 11 December 2007

Estate of the Late John Lawrence Sheaffer

JUDGMENT

1 BRYSON AJ: John Lawrence Sheaffer of Northbridge, retired engineer (the testator) died on 8 August 2005 and on 9 November 2005 this Court granted probate of his will dated 18 June 1996 to the executrices he appointed: they are his three daughters, and two of them Dr Lynette R. Schaverien and Mrs Geraldine S. Winnett are the plaintiffs; the third Dr Caroline F. Jones is the defendant. The plaintiffs’ principal claim is for revocation of the grant of probate, and for a further grant of probate to themselves to the exclusion of the defendant. The central allegations in the Statement of Claim, which are denied, are in paras 6 and 7 to the effect that the defendant has failed and refused and continues to fail and refuse to permit the plaintiffs to join as co-executors to complete due and proper administration, that the proper administration of the estate has been put in jeopardy and prevented by acts and omissions of the defendant; and that…

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 Schaverien v Jones

Details

AGLC: Schaverien v Jones [2007] NSWSC 1429
Case: [2007] NSWSC 1429
Decision Date: 11 December 2007

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of Schaverien v Jones revolved around the administration of an estate and the revocation of a grant of probate. The deceased, who was the brother of the plaintiff, left a will that appointed three executors. The plaintiff, one of the executors, sought the revocation of a grant of probate issued to the other two executors due to their conduct during the estate administration. The plaintiff alleged that the other two executors had not cooperated effectively, leading to mismanagement of the estate.

The central legal issue was whether the plaintiff's allegations regarding the conduct of the other executors were sufficient grounds for the revocation of the grant of probate. The court had to determine whether the executors' conduct warranted the interference of the court in the administration of the estate. The court also needed to assess whether the plaintiff, as an executor, had the standing to challenge the actions of the other executors and whether the allegations met the threshold for revoking a grant of probate.

The court found that the conduct of the other two executors during the estate administration was indeed problematic. The lack of cooperation and communication between the executors had led to significant issues in managing the estate. The court concluded that the plaintiff's concerns were valid and that the other executors' conduct warranted the revocation of the grant of probate. As a result, the court revoked the initial grant and issued a new grant to two of the executors, excluding the one who had been primarily responsible for the mismanagement. This decision was based on the court's determination that the two remaining executors could administer the estate more effectively and in a manner that aligned with the wishes of the deceased.

Orders