Estate of Beatrice Nicholas; Davis v Clifford & Ors [2012] NSWSC 347

Estate of Beatrice Nicholas; Davis v Clifford & Ors [2012] NSWSC 347

Because the plaintiff had not received her one-quarter share of the residuary estate and the executors did not oppose payment, it was appropriate under s 84 to order payment of a specified sum on account of that share, while leaving a buffer for any unidentified expenses.

Jurisdiction
Australia
Judgment Date
26 March 2012
Procedural Posture
Application for Revocation of Grant of Probate, or Alternatively for Orders Under S 84 of the Probate and Administration Act 1898 for Distribution of the Plaintiff's Share of the Net Residuary Estate / Amended Summons; Final Orders
Outcome
The defendants were ordered to pay the plaintiff $170,000 on account of her one-quarter share of the net residuary estate, the plaintiff's costs were ordered to be paid out of the estate, and the amended summons was otherwise dismissed.
Legal Topics
['revocation of Grant of Probate' 'distribution of Share of Net Residuary Estate' "executor's Neglect or Refusal to Pay Legacy or Residuary Bequest" 'payment on Account of Residuary Share' 'costs Out of the Estate']
['wills, Probate and Administration'] ['revocation of Grant of Probate' 'distribution of Share of Net Residuary Estate' "executor's Neglect or Refusal to Pay Legacy or Residuary Bequest" 'payment on Account of Residuary Share' 'costs Out of the Estate']

Case Brief

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Procedural Posture

Application for Revocation of Grant of Probate, or Alternatively for Orders Under S 84 of the Probate and Administration Act 1898 for Distribution of the Plaintiff's Share of the Net Residuary Estate / Amended Summons; Final Orders

Legal Issues

  1. 1 ['Whether the grant of probate to the executors should be revoked.' 'Whether an order should be made under s 84 of the Probate and Administration Act 1898 for payment to the plaintiff of her share of the net residuary estate.' 'What amount should be paid to the plaintiff on account of her one-quarter share of the net residuary estate.']

Ratio Decidendi

Because the plaintiff had not received her one-quarter share of the residuary estate and the executors did not oppose payment, it was appropriate under s 84 to order payment of a specified sum on account of that share, while leaving a buffer for any unidentified expenses.

Court Disposition

The defendants were ordered to pay the plaintiff $170,000 on account of her one-quarter share of the net residuary estate, the plaintiff's costs were ordered to be paid out of the estate, and the amended summons was otherwise dismissed.

Orders

  • ['By 29 March 2012 the defendants pay the plaintiff the sum of $170,000 on account of her one-quarter share of the net residuary estate of Beatrice Nicholas who died on 22 August 2010.' "The plaintiff's costs as agreed or assessed on the ordinary basis be paid out of the estate." 'The amended summons be otherwise...