Neil Ronald Telfer as Executor for the Estate of the late Lyall Telfer v Carolyn Telfer (No. 2) [2013] NSWSC 823

Neil Ronald Telfer as Executor for the Estate of the late Lyall Telfer v Carolyn Telfer (No. 2) [2013] NSWSC 823

Neil Telfer was passed over as executor because he propounded a codicil knowing it was not signed by the testator, amounting to proven misconduct. Consequently, he is not a proper person to be entrusted with administration of the estate and should not recover his costs of litigation from the estate. Carolyn Telfer is awarded costs on an indemnity basis due to Neil's unjustified conduct. No specified gross sum costs order is granted as assessment is necessary to separate relevant and irrelevant costs.

Parties
Plaintiff/cross Defendant: Neil Ronald Telfer as executor of the estate of the late Lyall Telfer; Defendant/cross Claimant: Carolyn Telfer
Jurisdiction
Australia
Judgment Date
21 June 2013
Procedural Posture
Succession Probate Proceedings (consequential Orders) / Post Trial, Determination of Costs and Executor Status
Outcome
Neil Telfer passed over as executor; statement of claim dismissed; costs on indemnity basis awarded to Carolyn Telfer; no specified gross sum costs order; further directions for appointment of administrator and costs assessment.
Legal Topics
Passing Over of Executor, Costs on Indemnity Basis, Orders for Specified Gross Sum Costs, Executor's Entitlement to Costs, Misconduct of Executor
Succession Law Wills and Probate Civil Procedure Costs Passing Over of Executor Costs on Indemnity Basis Orders for Specified Gross Sum Costs Executor's Entitlement to Costs +1 more

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Parties

Neil Ronald Telfer as executor of the estate of the late Lyall Telfer

Plaintiff/cross Defendant

Carolyn Telfer

Defendant/cross Claimant

Procedural Posture

Succession Probate Proceedings (consequential Orders) / Post Trial, Determination of Costs and Executor Status

Legal Issues

  1. 1 Should Neil Telfer be passed over as executor of Lyall Telfer's will?
  2. 2 Should Neil Telfer pay Carolyn Telfer's costs and, if so, on what basis?
  3. 3 Should a specified gross sum be awarded instead of assessed costs under Civil Procedure Act 2005 s 98(4)(c)?

Ratio Decidendi

Neil Telfer was passed over as executor because he propounded a codicil knowing it was not signed by the testator, amounting to proven misconduct. Consequently, he is not a proper person to be entrusted with administration of the estate and should not recover his costs of litigation from the estate. Carolyn Telfer is awarded costs on an indemnity basis due to Neil's unjustified conduct. No specified gross sum costs order is granted as assessment is necessary to separate relevant and irrelevant costs.

Court Disposition

Neil Telfer passed over as executor; statement of claim dismissed; costs on indemnity basis awarded to Carolyn Telfer; no specified gross sum costs order; further directions for appointment of administrator and costs assessment.

Orders

  • Statement of claim dismissed.
  • Plaintiff (Neil Telfer) not entitled to proceed to take probate over the Will of Lyall Vincent Telfer dated 21 June 2010.