Joel Lewis Hubbard, Re the Estate of the late John Gordon Ross [2011] NSWSC 617

Joel Lewis Hubbard, Re the Estate of the late John Gordon Ross [2011] NSWSC 617

The summons had to be dismissed because Mr Hubbard had obtained no grant and therefore was not the executor or trustee of the deceased's will; consequently s 63 of the Trustee Act 1925 (NSW) was unavailable, the cited Uniform Civil Procedure Rules did not provide power to give the requested advice or costs protection, and there was no basis to order an indemnity from the estate in advance of the probate proceedings.

Jurisdiction
Australia
Judgment Date
21 June 2011
Procedural Posture
Application for Judicial Advice Concerning Whether the Plaintiff Was Justified in Defending Probate Proceedings / Summons; Ex Tempore Judgment
Outcome
Summons dismissed
Legal Topics
['wills' 'executors and Trustees' 'judicial Advice' 'probate Proceedings' 'costs Indemnity']
['succession' 'equity' 'trusts'] ['wills' 'executors and Trustees' 'judicial Advice' 'probate Proceedings' 'costs Indemnity']

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Procedural Posture

Application for Judicial Advice Concerning Whether the Plaintiff Was Justified in Defending Probate Proceedings / Summons; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether a person named as executor in a later will, but without a grant of probate, can obtain judicial advice under s 63 of the Trustee Act 1925 (NSW).' 'Whether the Uniform Civil Procedure Rules 2005 (NSW) enabled the Court to give the advice or protection sought.' 'Whether the plaintiff could obtain advance protection or indemnity from the estate for costs if he defended probate proceedings and was unsuccessful.']

Ratio Decidendi

The summons had to be dismissed because Mr Hubbard had obtained no grant and therefore was not the executor or trustee of the deceased's will; consequently s 63 of the Trustee Act 1925 (NSW) was unavailable, the cited Uniform Civil Procedure Rules did not provide power to give the requested advice or costs protection, and there was no basis to order an indemnity from the estate in advance of the probate proceedings.

Court Disposition

Summons dismissed

Orders

  • ['The summons be dismissed.']