Estate of Philip Mack (Deceased) [2022] NSWSC 1629

Estate of Philip Mack (Deceased) [2022] NSWSC 1629

The second Plaintiff had clearly and unequivocally stated that he was no longer able to carry out the duties involved in the due administration of the estate, for personal and health reasons. In light of that sufficient factual basis, the beneficiaries' consents, the deceased's nomination of the third Plaintiff as substitute executor, and the need to advance the due and proper administration of the estate, the Court revoked the grant of Probate and ordered a fresh grant of letters of administration with the Will annexed to the first and third Plaintiffs, with consequential orders and costs from the estate.

Jurisdiction
Australia
Judgment Date
30 November 2022
Procedural Posture
Succession; Probate and Administration / In Chambers and on the Papers Application for Revocation of Probate and Fresh Grant of Administration With the Will Annexed
Outcome
Grant of Probate revoked; fresh letters of administration with the Will annexed ordered to be granted to the first and third Plaintiffs; consequential orders made; Plaintiffs' costs on the indemnity basis to be paid or retained out of the estate.
Legal Topics
['revocation of Probate' 'executors and Administrators' 'letters of Administration With the Will Annexed' 'substitute Executor' 'due and Proper Administration of Estate' 'beneficiary Consent']
['succession' 'probate and Administration' 'equity'] ['revocation of Probate' 'executors and Administrators' 'letters of Administration With the Will Annexed' 'substitute Executor' 'due and Proper Administration of Estate' 'beneficiary Consent']

Case Brief

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Procedural Posture

Succession; Probate and Administration / In Chambers and on the Papers Application for Revocation of Probate and Fresh Grant of Administration With the Will Annexed

Legal Issues

  1. 1 ['Whether the grant of Probate to the first and second Plaintiffs should be revoked where the second Plaintiff wished to retire as executor for personal and health reasons.' "Whether a fresh grant of administration with the deceased's Will annexed should be made to the first and third Plaintiffs, where the third Plaintiff was the substitute executor named in the Will." 'Whether the absence of a Defendant or contradictor prevented the application where all affected beneficiaries consented.' 'Whether revocation and a fresh grant would advance the due and proper administration of the estate and the interests of the beneficiaries.']

Ratio Decidendi

The second Plaintiff had clearly and unequivocally stated that he was no longer able to carry out the duties involved in the due administration of the estate, for personal and health reasons. In light of that sufficient factual basis, the beneficiaries' consents, the deceased's nomination of the third Plaintiff as substitute executor, and the need to advance the due and proper administration of the estate, the Court revoked the grant of Probate and ordered a fresh grant of letters of administration with the Will annexed to the first and third Plaintiffs, with consequential orders and costs from the estate.

Court Disposition

Grant of Probate revoked; fresh letters of administration with the Will annexed ordered to be granted to the first and third Plaintiffs; consequential orders made; Plaintiffs' costs on the indemnity basis to be paid or retained out of the estate.

Orders

  • ['Orders that the grant of probate issued by the Court on 6 May 2019, in respect of the estate of Philip Charles Tomlinson Mack be revoked.' 'Notes that the original revoked grant has been delivered up and has been placed in Court file 2022/307239.' "Notes that the second Plaintiff, Paul Godfrey Hickman, one of the...