Suttil v Suttil - [1990] TASSC 120

Serial No B43/1990
List "B"

COURT: SUPREME COURT OF TASMANIA

CITATION: Suttil v Suttil [1990] TASSC 120; B43/1990

PARTIES:  SUTTIL, Maria Gaylor
  SUTTIL, John Paul
  v
  SUTTIL, Yolanda Angela

FILE NO/S:  332/1990
DELIVERED ON:  23 July 1990
JUDGMENT OF:  Underwood J

Judgment Number: B43/1990
Number of paragraphs: 18

Serial No B43/1990
List "B"
File No 332/1990

MARIA GAYLOR and JOHN PAUL SUTTIL v YOLANDA ANGELA SUTTIL

REASONS FOR JUDGMENT UNDERWOOD J

23 July 1990

This is an application to appoint administrators pending suit of the estate of the late Antonio Suttil (the deceased). The power to grant administration to an administrator pendente lite is to be found in the Administration and Probate Act 1935, s19(1) which provides:
"19–(1) While any legal proceeding touching the validity of the will of a deceased person, or for obtaining, recalling, or revoking any representation, is pending, the Court may grant administration of the real and personal estate of the deceased to an administrator, who shall have all the rights and powers of a general administrator, other than the right of distributing the residue of the real and personal estate, but shall be subject to the immediate control of the Court and shall act under its direction."
The parties to the pending litigation are agreed that this is an appropriate case for making such a grant of administration but differ as to who should be appointed the administrator. The applicants (plaintiffs) contend that they should be appointed and the respondent (defendant) contends that the administrator should be some person such as a trustee company, who has no interest in either the estate or the pending proceedings.

The matter arises in this way. The deceased died on 31 January 1989. He was survived by his wife and four children of a prior marriage, Maria Gaylor, and John, Robert and Daniel Suttil. He executed three testamentary instruments. The first was a will dated 17 September 1987, the second was a codicil to that will dated 27 January 1989 and the third was another will dated the same day as the codicil to the earlier will. The second will provided that all prior testamentary instruments be revoked. There is not a great deal of difference between the terms of the three testamentary instruments. The codicil excluded from the residuary estate the following property:

(a)       a model boat collection
(b)       a stamp collection
(c)       gold
(d)       monies in any bank account
and provided that it should be specifically bequeathed to:
(a)       all the children
(b)       John Suttil
(c)       Maria Gaylor, Robert and Daniel Suttil
(d)       all the children.

In all other respects the codicil confirmed the provisions of the 1987 will.

By the 1989 will the deceased incorporated the specific bequests made by the codicil except that:

(i)the gold was particularised as gold whether by way of ingot or jewellery; and
(ii)any monies in any bank accounts was bequeathed to the trustees upon trust as to one half for the widow and as to one half for all…

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 Suttil v Suttil

Details

AGLC: Suttil v Suttil [1990] TASSC 120
Case: [1990] TASSC 120
Decision Date: 23 July 1990

CaseChat Overview and Summary

The case of Suttil v Suttil involved a dispute regarding the administration of the estate of the deceased, Antonio Suttil. The applicants, Maria Gaylor and John Paul Suttil, sought to be appointed administrators pending the outcome of litigation concerning the validity of the deceased's will and the fitness of the applicants to act as executors. The respondent, Yolanda Angela Suttil, opposed the applicants' appointment, arguing that an independent party should be appointed instead.

The central legal issue before the court was whether the applicants should be appointed as administrators pendente lite, given the circumstances of the case and the existing animosity between the parties. The court had to consider the applicants' delay in seeking probate, their management of the estate properties, and the need to safeguard the interests of all parties involved.

The court ruled that while it is generally desirable to appoint an independent administrator, there was no absolute rule against appointing a party to the litigation, particularly when they are named as executors in the testamentary documents. The court noted that the applicants had not acted irresponsibly in delaying the probate process, and that their management of the estate, with the exception of one property, had been satisfactory. However, the court determined that appointing the applicants as administrators would not adequately address the issues at hand, particularly concerning the property at 6 O'Brien Street. Therefore, the court ordered that an independent person be appointed as administrator pendente lite to manage the estate, with specific provisions for the safekeeping of the personal property in question and directions for the administration of the property at 6 O'Brien Street.

Orders