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Thomas v Aplitt

Thomas v Aplitt

Case [2023] NSWSC 727 28 June 2023

Revocation of Probate

Letters of Administration

Executor Duties

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Thomas v Aplitt & Anor [2023] NSWSC 727
Hearing dates: 8 June 2023
Date of orders: 28 June 2023
Decision date: 28 June 2023
Jurisdiction: Equity
Before: Hallen J
Decision:
See [106]

Catchwords:
PROCEDURE — Separate question — Oral application for determination of separate question relating to revocation of grant of Probate and a grant of letters of administration with the copy Will annexed to the Plaintiff — Whether suitable for separate determination — No dispute that the order for the hearing of the separate question should be made — Separate question ordered and determined
SUCCESSION — EXECUTORS — REMOVAL AND DISCHARGE — REVOCATION OF PROBATE - Parties are siblings — Where the two Defendants are the substitute executors of the Will of the deceased — Deceased died in 1997 — Probate granted in November 2000 — Where the only significant asset of the deceased was a residential property — Where the Will required the deceased’s estate to be collected, debts, funeral, and testamentary expenses to be paid, and the balance of the estate to be divided equally between her 6 children — Where one of the Defendants resided in the real property until about 2019 — Plaintiff seeks revocation of grant of Probate and her appointment as administrator and other relief against executors — Lack of due and proper administration of the estate — First Defendant consents to order for revocation of Probate and appointment of the Plaintiff to complete the administration — Second Defendant not an active party in the proceedings and did not appear at the hearing — Revocation justified as executors failed to fully administer the estate — Order for revocation of grant, with fresh grant of letters of administration with copy Will annexed to the Plaintiff

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 60
Supreme Court Rules 1970 (NSW), Pt 78, r 49
Trustee Act 1925 (NSW), s 11
Uniform Civil Procedure Rules 2005 (NSW), r 28.2

Cases Cited:
Bramston v Morris (Supreme Court (NSW), Powell J, 20 August 1993, unrep)
Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694; [1964] UKPC 2
Crawley v Vero Insurance Ltd & Ors [2012] NSWSC 593
Dickman v Holley; Estate of Simpson [2013] NSWSC 18
Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786
Estate of Philip Mack (Deceased) [2022] NSWSC 1629
Gertsch v Roberts; The Estate of Gertsch (1993) 35 NSWLR 631
Gorman v McGuire: Estate of J.M. Gorman [2002] NSWSC 1089
In re Gillard deceased [1949] VicLawRp 22; [1949] VLR 378
In the Goods of Loveday [1900] P 154
In the matter of Central Management (NSW) Pty Ltd (in liquidation) ACN 139 989 852 [2017] NSWSC 1258
Livingston v Commissioner of Stamp Duties (Qld) (1960) 107 CLR 411; [1960] HCA 94
Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36
Riccardi v Riccardi [2013] NSWSC 1655
Sandra Elizabeth Lester v Terrence Myles Brown [2022] NSWSC 716
Southwell v Bennett…

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 Thomas v Aplitt

Details

AGLC: Thomas v Aplitt [2023] NSWSC 727
Case: [2023] NSWSC 727
Decision Date: 28 June 2023

CaseChat Overview and Summary

In the matter of Thomas v Aplitt, the parties involved were siblings contesting the administration of their deceased mother's estate. The primary dispute centred around the revocation of a grant of Probate and the issuance of letters of administration with the copy Will annexed to the Plaintiff. The case was heard in the Supreme Court of Queensland. The legal issues before the court included whether the separate question relating to the revocation of the grant of Probate and the appointment of the Plaintiff as administrator was suitable for determination, and whether the executors had adequately administered the estate.

The court examined whether the separate question could be determined independently from the main proceedings. There was no dispute that the order for the hearing of the separate question should be made. The court found that the question was suitable for separate determination. The Plaintiff argued that the executors had not fully administered the estate, which justified the revocation of the grant of Probate. The first Defendant consented to the revocation and the Plaintiff's appointment as administrator. The second Defendant was not an active party in the proceedings and did not appear at the hearing. The court found that the executors had failed to adequately administer the estate, justifying the revocation of the grant of Probate.

The court ordered the revocation of the grant of Probate and issued fresh letters of administration with the copy Will annexed to the Plaintiff. This decision allowed the Plaintiff to complete the administration of the estate. The final orders of the court were to revoke the grant of Probate and to grant letters of administration with the copy Will annexed to the Plaintiff, thereby enabling her to take over the administration of the estate.

Orders