Alan Yazbek v Ghosn Yazbek & Anor (No. 2) [2012] NSWSC 783

Alan Yazbek v Ghosn Yazbek & Anor (No. 2) [2012] NSWSC 783

The existing grant of administration was based on the incorrect assumption that the deceased died intestate, so the grant had to be revoked and replaced by a grant of administration cum testamento annexo. Although residuary beneficiaries ordinarily have priority, the defendants were unsuitable in the circumstances because they were bringing family provision proceedings against the estate and the estate was likely to be involved in strongly contested family and Corporations List litigation; an independent administrator would better advance the due and proper administration of the estate. Because the deceased's conduct occasioned the probate litigation, both sides' costs should be paid from...

Jurisdiction
Australia
Judgment Date
11 July 2012
Procedural Posture
Succession Wills, Probate and Administration / Consequential Orders
Outcome
Grant of administration to defendants revoked. Grant of administration cum testamento annexo made to independent administrator. The plaintiff's and the defendants' costs of the proceedings paid out of the estate on the ordinary basis.
Legal Topics
['revocation of Grant of Administration Upon Intestacy' 'grant of Administration Cum Testamento Annexo' 'appointment of Independent Administrator' 'mediation of Family Provision Proceedings' 'costs Out of the Estate']
['succession' 'probate and Administration' 'costs'] ['revocation of Grant of Administration Upon Intestacy' 'grant of Administration Cum Testamento Annexo' 'appointment of Independent Administrator' 'mediation of Family Provision Proceedings' 'costs Out of the Estate']

Case Brief

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Procedural Posture

Succession Wills, Probate and Administration / Consequential Orders

Legal Issues

  1. 1 ['Whether the letters of administration granted to the defendants on 7 April 2011 should be revoked.' "If the defendants' letters of administration are revoked, to whom letters of administration cum testamento annexo should now be granted." 'Whether the Succession Act family provision proceedings should be referred to mediation under s 26 of the Uniform Civil Procedure Act 2005.' 'Whether the plaintiff and defendants should have their costs paid out of the estate, and whether costs should be on the ordinary or indemnity basis.']

Ratio Decidendi

The existing grant of administration was based on the incorrect assumption that the deceased died intestate, so the grant had to be revoked and replaced by a grant of administration cum testamento annexo. Although residuary beneficiaries ordinarily have priority, the defendants were unsuitable in the circumstances because they were bringing family provision proceedings against the estate and the estate was likely to be involved in strongly contested family and Corporations List litigation; an independent administrator would better advance the due and proper administration of the estate. Because the deceased's conduct occasioned the probate litigation, both sides' costs should be paid from...

Court Disposition

Grant of administration to defendants revoked. Grant of administration cum testamento annexo made to independent administrator. The plaintiff's and the defendants' costs of the proceedings paid out of the estate on the ordinary basis.

Orders

  • ['Order pursuant to s 26 of the Civil Procedure Act that the mediation of the Succession Act proceedings (2011/299188) brought by Ghosn and Mouna Yazbek against the estate of the late Daniel Yazbek take place before 22 August 2012.' 'Order that the grant of administration of the estate of the late Daniel Yazbek made...