Coffey v Coffey [2008] NSWSC 940

Coffey v Coffey [2008] NSWSC 940

Although the defendant had neglected to prove the Will and took no proper steps until served with the summons, he was a named executor who now wished to take a grant, and there was no clear misbehaviour sufficient to exclude him. The matter was therefore stood over for orders bringing in a grant of probate to both named executors, with both parties' costs paid out of the estate and the plaintiff's costs in priority.

Jurisdiction
Australia
Judgment Date
01 September 2008
Procedural Posture
Probate and Administration Application Under S 75 of the Probate and Administration Act 1898 Concerning a Grant of Probate to Executors / Ex Tempore Judgment; Matter Stood Over for Appropriate Orders
Outcome
Matter stood over to 22 September 2008 for appropriate orders providing for a grant of probate to both executors named in the Will.
Legal Topics
['grant of Probate' 'executor in Default' 'removal of Executor' 'costs Out of Estate']
['probate and Administration'] ['grant of Probate' 'executor in Default' 'removal of Executor' 'costs Out of Estate']

Case Brief

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Procedural Posture

Probate and Administration Application Under S 75 of the Probate and Administration Act 1898 Concerning a Grant of Probate to Executors / Ex Tempore Judgment; Matter Stood Over for Appropriate Orders

Legal Issues

  1. 1 ['Whether the defendant should be removed or excluded from receiving a grant as an executor named in the Will.' 'Whether the plaintiff should receive a grant alone or both named executors should receive a grant.' "Whether the parties' costs should be paid out of the estate and in what priority."]

Ratio Decidendi

Although the defendant had neglected to prove the Will and took no proper steps until served with the summons, he was a named executor who now wished to take a grant, and there was no clear misbehaviour sufficient to exclude him. The matter was therefore stood over for orders bringing in a grant of probate to both named executors, with both parties' costs paid out of the estate and the plaintiff's costs in priority.

Court Disposition

Matter stood over to 22 September 2008 for appropriate orders providing for a grant of probate to both executors named in the Will.

Orders

  • ['The matter is stood over to 22 September 2008.' 'An order is to be brought in under which a grant of probate will be made to both executors named in the Will.' 'The matter will be referred to the Registrar to complete the grant.' "The costs of both parties are to be paid out of the estate, with the plaintiff's...