Re Estate of R D Firns [2001] NSWSC 184

Re Estate of R D Firns [2001] NSWSC 184

Administrators have statutory power to mortgage estate real estate for the purposes outlined, and their costs in probate and related Family Provision Act proceedings fall within 'purposes of administration'; thus, the Court makes the declarations sought and orders costs to come out of the estate.

Parties
Administrator: John Frederick Lord; Administrator: David John Kerr; Beneficiary: Kenneth John Firns; Beneficiary: Ronald Douglas Firns (Junior)
Jurisdiction
Australia
Judgment Date
20 March 2001
Procedural Posture
Probate / Motion for Declaration by Administrators
Outcome
Declarations 1 and 2 as sought in notice of motion D made; costs of both parties to come out of estate; liberty to apply.
Legal Topics
Probate Administration, Powers of Administrator, Right to Sell or Mortgage Estate Assets, Procedure for Declarations in Special Cases
Succession Law Equity Procedure Probate Administration Powers of Administrator Right to Sell or Mortgage Estate Assets Procedure for Declarations in Special Cases

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Parties

John Frederick Lord

Administrator

David John Kerr

Administrator

Kenneth John Firns

Beneficiary

Ronald Douglas Firns (Junior)

Beneficiary

Procedural Posture

Probate / Motion for Declaration by Administrators

Legal Issues

  1. 1 Do the administrators have power to mortgage part of the estate to raise administration and litigation funds?
  2. 2 What is the scope of 'purposes of administration' under the Conveyancing Act 1919?

Ratio Decidendi

Administrators have statutory power to mortgage estate real estate for the purposes outlined, and their costs in probate and related Family Provision Act proceedings fall within 'purposes of administration'; thus, the Court makes the declarations sought and orders costs to come out of the estate.

Court Disposition

Declarations 1 and 2 as sought in notice of motion D made; costs of both parties to come out of estate; liberty to apply.

Orders

  • Declarations 1 and 2 in notice of motion D granted.
  • Costs of notice of motion of both parties come out of the assets of the estate.