Griffin v Matthews [2012] NSWCA 348

Griffin v Matthews [2012] NSWCA 348

The Court held that the dismissal of the pre-probate claims against the respondent was procedurally erroneous due to the existence of triable issues regarding the executors’ agreement to appoint a director and manage estate assets, and that summary dismissal was inconsistent with established principles; the appeal should be allowed and the claim reinstated.

Parties
First Applicant: Liberty Teal Griffin by her tutor Shelley Candice Griffin; Second Applicant: Max Edward Griffin by his tutor Shelley Candice Griffin; Respondent: Neil Sidney Matthews
Jurisdiction
Australia
Judgment Date
23 October 2012
Procedural Posture
Appeal / Leave and Substantive Appeal
Outcome
Appeal allowed; summary dismissal of pre-probate claim against respondent set aside.
Legal Topics
Probate, Intermeddling, Devastavit, Summary Dismissal, Leave to Appeal
Wills and Estates Civil Procedure Probate Intermeddling Devastavit Summary Dismissal Leave to Appeal

Case Brief

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Parties

Liberty Teal Griffin by her tutor Shelley Candice Griffin

First Applicant

Max Edward Griffin by his tutor Shelley Candice Griffin

Second Applicant

Neil Sidney Matthews

Respondent

Procedural Posture

Appeal / Leave and Substantive Appeal

Legal Issues

  1. 1 Whether executor's pre-probate conduct constitutes intermeddling
  2. 2 Whether executor is liable for devastavit prior to the grant of probate
  3. 3 Procedural appropriateness of summary dismissal against one co-executor

Ratio Decidendi

The Court held that the dismissal of the pre-probate claims against the respondent was procedurally erroneous due to the existence of triable issues regarding the executors’ agreement to appoint a director and manage estate assets, and that summary dismissal was inconsistent with established principles; the appeal should be allowed and the claim reinstated.

Court Disposition

Appeal allowed; summary dismissal of pre-probate claim against respondent set aside.

Orders

  • Applicants granted leave to appeal against order (1) made by Davies J in the Equity Division on 14 September 2012.
  • Appeal allowed and order (1) made in the Equity Division on 14 September 2012 set aside.