Gorman v McGuire: Estate of J.M. Gorman [2002] NSWSC 1089

Gorman v McGuire: Estate of J.M. Gorman [2002] NSWSC 1089

The Court held that partial revocation of a grant of probate is not possible. Where one of several executors is to be removed, the original grant must be wholly revoked and a fresh grant issued to the remaining executor(s). The Plaintiff’s personal conflict of interest justified his removal as executor and revocation of the grant. However, the costs of the application were not to be borne by the estate, since the Plaintiff, had he sought legal advice earlier, would have renounced his executorship and the application would not have been necessary.

Jurisdiction
Australia
Judgment Date
13 November 2002
Procedural Posture
Probate / Application for Revocation of Grant of Probate at First Instance
Outcome
Original grant of probate revoked; fresh grant of probate made to Defendant as sole executrix; Plaintiff to pay costs of application; no order as to costs for the estate.
Legal Topics
['revocation of Grant of Probate' 'executor Removal' 'conflict of Interest' 'costs in Probate']
['equity' 'estates and Probate'] ['revocation of Grant of Probate' 'executor Removal' 'conflict of Interest' 'costs in Probate']

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Procedural Posture

Probate / Application for Revocation of Grant of Probate at First Instance

Legal Issues

  1. 1 ['Whether an order for partial revocation of grant of probate in respect of one co-executor is permissible.' 'Whether the Court should revoke the original grant of probate and make a fresh grant to the remaining executor.' 'Whether the costs of the application should be borne by the estate or by the applicant.']

Ratio Decidendi

The Court held that partial revocation of a grant of probate is not possible. Where one of several executors is to be removed, the original grant must be wholly revoked and a fresh grant issued to the remaining executor(s). The Plaintiff’s personal conflict of interest justified his removal as executor and revocation of the grant. However, the costs of the application were not to be borne by the estate, since the Plaintiff, had he sought legal advice earlier, would have renounced his executorship and the application would not have been necessary.

Court Disposition

Original grant of probate revoked; fresh grant of probate made to Defendant as sole executrix; Plaintiff to pay costs of application; no order as to costs for the estate.

Orders

  • ['Original grant of probate revoked.' 'Fresh grant of probate made to Defendant as sole executrix.' 'Plaintiff to pay costs of the application.' 'Order curing procedural defects.']