Estate Webster [2016] NSWSC 580

Estate Webster [2016] NSWSC 580

Because the executors' working relationships had broken down and Cara and her daughter had already been paid their entitlements, Cara had no ongoing practical interest in due administration of the estate, while the Webster brothers were the persons with the primary and beneficial interest in its completion. The due administration of the unadministered estate would therefore be best served by revoking the existing grant of probate and granting administration with the will annexed to Michael, Daniel and David only.

Jurisdiction
Australia
Judgment Date
11 May 2016
Procedural Posture
Equity Probate List; Notices of Motion Concerning Revocation and Re Grant of Administration and Costs / Procedural and Other Ruling on Two Notices of Motion
Outcome
Michael's notice of motion was allowed to the extent that the grant of probate was revoked and administration of the unadministered estate was granted to Michael, Daniel and David with the will annexed; Cara's costs motion was disposed of by orders that she bear her own costs and that the costs of Michael, Daniel...
Legal Topics
['revocation of Grant of Probate' 'fresh Grant of Administration' 'breakdown of Working Relationships Between Executors' 'removal or Retirement of Executor' 'costs of Estate Proceedings' 'statutory Will']
['succession' 'probate' 'equity'] ['revocation of Grant of Probate' 'fresh Grant of Administration' 'breakdown of Working Relationships Between Executors' 'removal or Retirement of Executor' 'costs of Estate Proceedings' 'statutory Will']

Case Brief

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Procedural Posture

Equity Probate List; Notices of Motion Concerning Revocation and Re Grant of Administration and Costs / Procedural and Other Ruling on Two Notices of Motion

Legal Issues

  1. 1 ["Whether the grant of probate made to four executors of the deceased's statutory will should be revoked and administration of the unadministered estate granted to only three executors because their working relationships had broken down." 'Whether the matter remained within the probate jurisdiction because executorial duties remained to be performed, or whether the executors held estate property as trustees.' "What costs orders should be made in respect of the oral application on 23 October 2015, Michael's notice of motion, and Cara's amended notice of motion."]

Ratio Decidendi

Because the executors' working relationships had broken down and Cara and her daughter had already been paid their entitlements, Cara had no ongoing practical interest in due administration of the estate, while the Webster brothers were the persons with the primary and beneficial interest in its completion. The due administration of the unadministered estate would therefore be best served by revoking the existing grant of probate and granting administration with the will annexed to Michael, Daniel and David only.

Court Disposition

Michael's notice of motion was allowed to the extent that the grant of probate was revoked and administration of the unadministered estate was granted to Michael, Daniel and David with the will annexed; Cara's costs motion was disposed of by orders that she bear her own costs and that the costs of Michael, Daniel...

Orders

  • ['ORDER that the grant of probate made to Cara, Michael, Daniel and David on 19 February 2015 (in respect of the Will of the deceased, Albert Victor Webster, dated 17 November 2014) be revoked.' 'ORDER that administration of the unadministered estate of the deceased be granted to Michael, Daniel and David with the...