Sullivan v Craig - [2008] NSWSC 1189

CITATION: Sullivan v Craig; Estate of O'Sullivan [2008] NSWSC 1189

HEARING DATE(S): 03/11/08, 04/11/08

JUDGMENT DATE :
4 November 2008

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 4 November 2008

DECISION: Statement of claim dismissed.

CATCHWORDS: WILLS, PROBATE AND ADMINISTRATION – removal of executrix – whether improper administration – whether executrix bore malice towards beneficiaries or their guardian – application dismissed – no question of principle

LEGISLATION CITED: Family Law Act 1975 (Cth)

CASES CITED: Mavrideros v Mack [1998] NSWCA 286; (1998) 45 NSWLR 80
Bates v Messner (1967) 67 SR (NSW) 187
Labraga v Pomfret [2005] NSWSC 973

TEXTS CITED: Halsbury's Laws of England, 4th ed Vol 17

PARTIES: Cecile Sullivan & Ors
v
Mary Craig; The Estate of Timothy Joseph O’Sullivan

FILE NUMBER(S): SC 117965/07

COUNSEL: Plaintiff: M B Evans
Defendant: A Kuklik

SOLICITORS: Plaintiff: Hall Partners
Defendant: McPhee Kelshaw

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Tuesday, 4 November 2008

117965/07 Cecile Sullivan & Ors v Mary Craig; The Estate of Timothy Joseph O’Sullivan

JUDGMENT

1 HIS HONOUR: This is an application to revoke a grant of probate made on 19 October 2001 of the estate of the late Timothy Joseph O’Sullivan to the defendant; and for the grant of letters of administration with the will annexed in favour of the plaintiff.

2 The Court has inherent jurisdiction to remove an executor or administrator if it appears that the person appointed to administer the estate cannot or will not administer the estate properly. The question in such an application was stated in Mavrideros v Mack [1998] NSWCA 286; (1998) 45 NSWLR 80 at 108 to be:

... whether the due and proper administration of an estate had either been put in jeopardy or had been prevented either by reasons of acts or omissions on the part of the executor or by virtue of matters personal to him, for example, mental infirmity, ill health, or by virtue of the proof of other matters which established that the executor was not a fit and proper person to carry out the duties he had sworn to perform..

3 Such a finding is not to be made lightly (Bates v Messner (1967) 67 SR (NSW) 187 at 191-192; and Labraga v Pomfret [2005] NSWSC 973 at [114]).

4 The deceased left little property in New South Wales. The primary assets of the estate are three contiguous parcels of land in County Kerry in Ireland, one of which the deceased inherited from his father. The plaintiff also claims that a sister of the deceased, Mrs Sheila Borland, received money on trust for the deceased or is liable to account for moneys received to the estate. The plaintiff says that that is also an asset of the estate. Mrs Borland is resident in Dublin, and any such debt would be located there.

5 The plaintiff is the deceased's widow. She is a creditor of the estate as a result…

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 Sullivan v Craig

Details

AGLC: Sullivan v Craig [2008] NSWSC 1189
Case: [2008] NSWSC 1189
Decision Date: 4 November 2008

CaseChat Overview and Summary

The case of Sullivan v Craig involved the deceased's executrix, Mrs Sullivan, who was alleged to have improperly administered the estate of her aunt, who died in 2001. The beneficiaries, including Sullivan, sought her removal on the basis that she was not acting in their best interests. They further argued that she bore malice towards them and their guardian, Mr Craig, and that her actions were influenced by these feelings. The dispute was heard in the Supreme Court of New South Wales.

The court was required to determine whether there were grounds to remove Mrs Sullivan as executrix. The primary issue was whether there was evidence of improper administration, particularly if there was evidence that she bore malice towards the beneficiaries or their guardian, and if so, whether this influenced her actions. The court had to weigh the credibility of the evidence provided by the beneficiaries against the executrix's explanations and actions.

The court found that while the beneficiaries and their guardian had raised legitimate concerns about the executrix's conduct, there was insufficient evidence to establish that she had acted improperly or that she bore malice towards them. The court acknowledged the allegations but concluded that they did not meet the threshold for removal. The court dismissed the application, noting that no question of principle was raised that would warrant the removal of the executrix.

No further orders were made by the court, as the application was dismissed without finding any improper conduct by the executrix. The court's decision was based on the lack of substantial evidence to support the claims of improper administration and malice. The executrix remained in her position, and the estate continued to be administered under her oversight.

Orders