Estate of Maria Zbrozek; Katarzyna (aka Kasia) Duszyk v Charles Emmanuel Morgan - Interim Administrator of the Estate of the late Maria Zbrozek [2020] NSWSC 1591

Estate of Maria Zbrozek; Katarzyna (aka Kasia) Duszyk v Charles Emmanuel Morgan - Interim Administrator of the Estate of the late Maria Zbrozek [2020] NSWSC 1591

All principal orders concerning party removal and addition, the form of further pleadings, and provision for security for costs were made because: (a) Mr Knap's removal was appropriate given his conflict, provided costs liabilities are preserved; (b) The Four Polish Beneficiaries have sufficient interest in resisting Kasia's claims to be joined as defendants; (c) Security for costs is satisfied by a charge over any Estate share to which they are entitled; (d) Mr Morgan should be removed as Defendant in Trust Proceedings as he is not a representative ad litem for the Estate; (e) Ibdah and the Four Polish Beneficiaries may plead against the 2013 Will as they have a legitimate concern in the...

Jurisdiction
Australia
Judgment Date
16 October 2020
Procedural Posture
Probate/equity—succession—contested Probate and Administration; Separate Trust Proceedings / Interlocutory Determination of Joinder, Removal, Pleading Amendments and Security for Costs; Not Final Determination of Will Validity
Outcome
Interlocutory orders made—removal and joinder of parties, leave to amend pleadings granted, security for costs to be charge over Estate share, no final determination of will validity at this stage.
Legal Topics
['contested Probate' 'informal Wills' 'party Removal and Joinder' 'security for Costs' 'pleading Amendments' 'estate Administration' 'trust Proceedings' 'beneficiary Standing']
['succession' 'civil Procedure'] ['contested Probate' 'informal Wills' 'party Removal and Joinder' 'security for Costs' 'pleading Amendments' 'estate Administration' 'trust Proceedings' 'beneficiary Standing']

Case Brief

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Procedural Posture

Probate/equity—succession—contested Probate and Administration; Separate Trust Proceedings / Interlocutory Determination of Joinder, Removal, Pleading Amendments and Security for Costs; Not Final Determination of Will Validity

Legal Issues

  1. 1 ['Whether first plaintiff Pawel Knap should be removed as party and on what terms as to costs liability' 'Whether the Four Polish Beneficiaries should be joined as cross defendants in Probate Proceedings and as defendants in Trust Proceedings' 'Whether the Four Polish Beneficiaries should provide security for costs for their joinder' 'Whether Mr Morgan should remain as defendant in Trust Proceedings' 'Who should properly be defendants in Trust Proceedings in absence of active executor' 'Whether Ibdah and the Four Polish Beneficiaries can challenge the 2013 Will in their pleadings' 'Whether pleadings may be amended/form of Further Amended Statement of Claim']

Ratio Decidendi

All principal orders concerning party removal and addition, the form of further pleadings, and provision for security for costs were made because: (a) Mr Knap's removal was appropriate given his conflict, provided costs liabilities are preserved; (b) The Four Polish Beneficiaries have sufficient interest in resisting Kasia's claims to be joined as defendants; (c) Security for costs is satisfied by a charge over any Estate share to which they are entitled; (d) Mr Morgan should be removed as Defendant in Trust Proceedings as he is not a representative ad litem for the Estate; (e) Ibdah and the Four Polish Beneficiaries may plead against the 2013 Will as they have a legitimate concern in the...

Court Disposition

Interlocutory orders made—removal and joinder of parties, leave to amend pleadings granted, security for costs to be charge over Estate share, no final determination of will validity at this stage.

Orders

  • ['First Plaintiff Pawel Knap removed as plaintiff and cross defendant but remains liable for costs as at date of removal.' 'Romana Pawlus, Anna Kapturkiewicz, Barbara Pieton, and Elzbieta Juszczak joined as cross defendants in Probate Proceedings in place of Knap.' 'Any personal costs order against joined cross...