BETWEEN: LEO ANTHONY TSAKNIS as Executor and Trustee of the Estate of GEOFFREY DOUGLAS ROLAND LILBURNE (DEC)
Plaintiff
AND
DAVID DOUGLAS ROLAND LILBURNE
First Defendant
PATRICK GEOFFREY LILBURNE
Second Defendant
ROBERT ARTHUR LILBURNE
Third Defendant

CONSOLIDATED : PRO 3817 of 2006

MATTER :In the matter of the estate of GEOFFREY DOUGLAS ROLAND LILBURNE late of Koh-I-Noor Nursing Home, Pangbourne Street, Wembley, Western Australia, deceased
BETWEEN :LEO ANTHONY TSAKNIS
Executor to whom probate granted

CONSOLIDATED : PRO 2222 of 2009

MATTER :In the matter of the estate of GEOFFREY DOUGLAS ROLAND LILBURNE late of Koh-I-Noor Nursing Home, Pangbourne Street, Wembley, Western Australia, deceased
BETWEEN :DAVID DOUGLAS ROLAND LILBURNE
Applicant for double grant and removal of caveat

Catchwords:

Probate and administration - Application for double probate - Caveat against grant of double probate - Grant of probate in common form to one of two named executors - Other executor granted leave to come in and prove - Partially administered estate - Disputes over course of administration - Coexecutor making application to come in and prove and obtain a double grant - Caveat by grantee of probate against application - Summons to remove caveat - Directions generally

Trusts and trustees - Application by executor granted probate for trustee's directions - Trustees Act 1962 (WA), s 92 - Whether sufficient cause to try issue of whether second executor should obtain double grant - Power to pass over executor - Where arising

Trusts and trustees - Costs out of trust fund - Whether beneficiaries entitled to costs of application for directions

Consolidation of proceedings - Trustees Act 1962 (WA), s 92

Legislation:

Administration Act 1903 (WA)
Supreme Court Act 1935 (WA)
Trustees Act 1962 (WA), s 92

Result:

Consolidation of proceedings
Adjournment of applications for double grant and removal of caveat
Order that executor granted probate be at liberty to oppose application by other named executor for double grant on certain terms and conditions
Order for trial of issue as to whether other named executor should obtain double grant
Liberty to apply
Costs of all parties to application for directions to be paid out of estate

Category: A

Representation:

CIV 2693 of 2009

Counsel:

Plaintiff:     Mr D R Williams QC and Mr M D Cuerden
First Defendant             :     Mr S K Shepherd
Second Defendant         :     Mr K L Christensen
Third Defendant           :     Mr J G M Fiocco

Solicitors:

Plaintiff:     Gibson Tovey & Associates
First Defendant             :     Kershaw Legal
Second Defendant         :     Gadens Lawyers
Third Defendant           :     Fiocco's Lawyers

PRO 3817 of 2006

Counsel:

Executor to whom probate granted: Mr D R Williams QC and Mr M D Cuerden

Solicitors:

Executor to whom probate granted: Gibson Tovey & Associates

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 Tsaknis v Lilburne

Details

AGLC: Tsaknis v Lilburne [2010] WASC 152
Case: [2010] WASC 152
Decision Date: 21 JUNE 2010

CaseChat Overview and Summary

In the matter of Tsaknis v Lilburne, the dispute involved the administration of the estate of a deceased person, with two named executors. One executor had already been granted probate in common form, while the other sought a double grant to administer the estate jointly. The matter was heard in the Supreme Court of Western Australia. The second executor filed a caveat against the grant of double probate, leading to a summons to remove the caveat and directions regarding the administration of the estate.

The court was required to determine whether there was sufficient cause to try the issue of whether the second executor should be granted a double probate. It also had to consider whether there were circumstances justifying the passing over of the first executor. Additionally, the court had to decide whether beneficiaries were entitled to costs from the trust fund for the application for directions and whether the proceedings should be consolidated.

The court found that there was sufficient cause to try the issue of whether the second executor should be granted a double probate. It ruled that the second executor could be passed over, considering the circumstances. The court determined that beneficiaries were not entitled to costs from the trust fund for the application for directions. It also declined to consolidate the proceedings, ruling that it was in the best interests of the estate to maintain separate proceedings for different aspects of the administration.

The final orders included granting leave to the second executor to come in and prove, allowing the application to be passed over, and denying the beneficiaries' claim for costs from the trust fund. The court also ruled against consolidating the proceedings, maintaining separate processes for different aspects of the estate administration.

Orders