McGrath v Troy as administratrix of the estate of the Late Warren Terence Wade [2010] NSWSC 1470

McGrath v Troy as administratrix of the estate of the Late Warren Terence Wade [2010] NSWSC 1470

Administrator liable to restore estate funds distributed or paid as debts where there was no intention to create legal relations concerning alleged debts, and debts paid were statute-barred; administrator had notice of claim by plaintiff prior to distribution and cannot rely on s 92 as defence; relief under s 85 not granted due to lack of honesty and reasonableness; administrator removed and NSW Trustee appointed. Claims under Family Provision Act do not arise.

Jurisdiction
Australia
Judgment Date
24 November 2010
Procedural Posture
Civil / Principal Judgment, After Trial/hearing
Outcome
Plaintiff's claims against first defendant succeeded; claims against second and third defendants dismissed; administrator removed; NSW Trustee appointed.
Legal Topics
['distribution of Estate' 'breaches of Fiduciary Duty' 'statute Barred Debts' 'notice of Claim' 'removal of Administrator' 'relief Under Trustee Act' 'family Provision Act Claims']
['succession' 'trusts and Estates' 'probate'] ['distribution of Estate' 'breaches of Fiduciary Duty' 'statute Barred Debts' 'notice of Claim' 'removal of Administrator' 'relief Under Trustee Act' 'family Provision Act Claims']

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Procedural Posture

Civil / Principal Judgment, After Trial/hearing

Legal Issues

  1. 1 ['Whether administratrix is liable to restore moneys wrongfully distributed or paid as debts owed by deceased' 'Whether debts claimed by administratrix and third defendant were properly payable or were statute-barred' 'Whether administrator received notice of a claim on estate under s 92 Probate and Administration Act' 'Whether administrator can rely on s 92 as answer to claim for distribution' 'Whether relief under s 85 of Trustee Act should be granted' 'Whether administrator should be removed' 'Whether Family Provision Act claims arise']

Ratio Decidendi

Administrator liable to restore estate funds distributed or paid as debts where there was no intention to create legal relations concerning alleged debts, and debts paid were statute-barred; administrator had notice of claim by plaintiff prior to distribution and cannot rely on s 92 as defence; relief under s 85 not granted due to lack of honesty and reasonableness; administrator removed and NSW Trustee appointed. Claims under Family Provision Act do not arise.

Court Disposition

Plaintiff's claims against first defendant succeeded; claims against second and third defendants dismissed; administrator removed; NSW Trustee appointed.

Orders

  • ['Order revoking grant of letters of administration to first defendant.' 'Order granting letters of administration to NSW Trustee.' 'Order for first defendant to pay $19,419.91 plus interest from 10 December 2007.' 'Order for first defendant to pay $1,783 plus interest from 11 December 2007.' 'Order for first...