Wise v Barry; The Estate of Robyn Margaret Wise [2018] NSWSC 1726

Wise v Barry; The Estate of Robyn Margaret Wise [2018] NSWSC 1726

The court found the defendant had failed in his duty as executor, acting contrary to the interests of beneficiaries and the due administration of the estate by refusing to vacate or sell the property and by unreasonably delaying administration. Removal of the defendant as executor and grant of probate to the plaintiff alone was justified. The defendant consciously delayed making a family provision claim, engaged in unconscionable conduct by not disclosing his intentions, and suffered no real deficiency in provision given his benefit from long-term occupation. As such, extension of time for a family provision claim was refused and the substantive claim dismissed.

Parties
Plaintiff: Shane Colin Wise; Defendant: Stephen Gregory Barry
Jurisdiction
Australia
Judgment Date
14 November 2018
Procedural Posture
Probate and Family Provision; Equity / Post Trial; Decision and Orders Pending
Outcome
Orders to be made pending agreement on Short Minutes; defendant removed as executor; probate to be re-granted to plaintiff alone; defendant's family provision application dismissed; proceedings adjourned for submissions on costs.
Legal Topics
Executors and Administrators, Removal of Executor, Family Provision, Extension of Time, Real Property Administration
Succession Equity Executors and Administrators Removal of Executor Family Provision Extension of Time Real Property Administration

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Parties

Shane Colin Wise

Plaintiff

Stephen Gregory Barry

Defendant

Procedural Posture

Probate and Family Provision; Equity / Post Trial; Decision and Orders Pending

Legal Issues

  1. 1 Whether the defendant should be removed as executor and trustee of the estate for failure to administer the estate and unauthorised occupation of real property
  2. 2 Whether the defendant's application for family provision order should be allowed out of time
  3. 3 Whether sufficient cause was shown for extension of time to make a family provision claim

Ratio Decidendi

The court found the defendant had failed in his duty as executor, acting contrary to the interests of beneficiaries and the due administration of the estate by refusing to vacate or sell the property and by unreasonably delaying administration. Removal of the defendant as executor and grant of probate to the plaintiff alone was justified. The defendant consciously delayed making a family provision claim, engaged in unconscionable conduct by not disclosing his intentions, and suffered no real deficiency in provision given his benefit from long-term occupation. As such, extension of time for a family provision claim was refused and the substantive claim dismissed.

Court Disposition

Orders to be made pending agreement on Short Minutes; defendant removed as executor; probate to be re-granted to plaintiff alone; defendant's family provision application dismissed; proceedings adjourned for submissions on costs.

Orders

  • Parties to provide Short Minutes of Order reflecting these reasons
  • Defendant to vacate and deliver possession of the property within 28 days