Stedman v O'Hearn;Hosemans v O'Hearn [2006] NSWSC 1122

Stedman v O'Hearn;Hosemans v O'Hearn [2006] NSWSC 1122

Where one co-executor claims family provision against the estate, it is appropriate for the court to make an order appointing the remaining co-executor as representative of the estate for the proceedings, pursuant to r 7.10 of the UCPR, rather than requiring the executor-plaintiff to renounce probate or be removed.

Parties
Plaintiff: William Henry Stedman; Defendant: Patricia O'Hearn; Plaintiff: Rachel Jade Hosemans; Defendant: William Henry Stedman
Jurisdiction
Australia
Judgment Date
16 October 2006
Procedural Posture
Family Provision Act Proceedings / Interlocutory Motion Before Trial
Outcome
Representative order made for estate representation by defendant; costs of motion to be paid out of estate.
Legal Topics
Representative Orders, Executor Conflict of Interest, Family Provision Applications
Equity Wills and Estates Representative Orders Executor Conflict of Interest Family Provision Applications

Case Brief

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Parties

William Henry Stedman

Plaintiff

Patricia O'Hearn

Defendant

Rachel Jade Hosemans

Plaintiff

William Henry Stedman

Defendant

Procedural Posture

Family Provision Act Proceedings / Interlocutory Motion Before Trial

Legal Issues

  1. 1 Whether an executor who is a plaintiff in Family Provision Act proceedings must renounce probate or be removed as executor
  2. 2 Whether a representative order is necessary when an executor brings a claim adverse to the estate

Ratio Decidendi

Where one co-executor claims family provision against the estate, it is appropriate for the court to make an order appointing the remaining co-executor as representative of the estate for the proceedings, pursuant to r 7.10 of the UCPR, rather than requiring the executor-plaintiff to renounce probate or be removed.

Court Disposition

Representative order made for estate representation by defendant; costs of motion to be paid out of estate.

Orders

  • In 5122/04, the defendant is appointed to represent the estate of the deceased for the purposes of the proceedings.
  • The costs of each party of the motion in 5122/04 are to be paid out of the estate.