[2015] NSWSC 1584

Re Estate GR, deceased

Orders for a penultimate will to be admitted to probate, reserving to an absent party a limited entitlement to move the Court for an order that the grant be revoked and an order that the last (controversial) will be admitted to probate instead.

Catchwords

SUCCESSION – Probate and letters of administration – Grants of probate and letters of administration – Jurisdiction and discretion of court – Controversy attaching to validity of final will – Passing over final will - Grant of probate in common form of penultimate will – Reservation of liberty to apply for revocation of grant – Time to make such application limited

Cases cited

Estate Kouvakas; Lucas v Konakas[2014] NSWSC 786
IR v AR[2015] NSWSC 1187

Legislation cited

New South Wales Trustee and Guardian Act 2009 NSW

Judgment

[1]
These proceedings concern the estate of GR who died on 15 May 2015, aged 86, leaving:
[2]
Both wills provide for the widow of the deceased to be his sole beneficiary. The earlier will appoints his widow as executrix. The latter will appoints AR as executor.
[3]
There is no dispute as to the validity of the earlier will but for its purported revocation by the latter will.
[4]
Controversy attaches to the validity of the later will because:
[5]
Even if the 2015 will were to be held valid, it would not, on its face, alter the entitlement of the deceased's widow to beneficial ownership of the whole of the deceased's estate.
[6]
Given the controversy attaching to validity of that will, the prudent course is to pass over it in favour of a grant of administration in respect of the 2007 will, reserving an opportunity for the 2015 will to be brought forward at a later time should a timely application for its admission to probate be made and diligently pursued.
[7]
The 2007 will purports to appoint the widow as executrix of the deceased's estate. It is beyond dispute, however, that she is incapable of managing her own affairs. The NSW Trustee is her financial manager. An interim grant of administration of her husband’s estate has previously been made to the NSW Trustee. The NSW Trustee consents, now, to a grant of letters of administration with the will annexed (be it the 2007 will or the 2015 will) for the purpose of bringing order to administration of the deceased's estate and, incidentally, to the affairs of his widow.
[8]
Having regard to the controversy attaching to the 2015 will, and AR’s refusal or failure to propound it by a timely articulation of his case, the appropriate course is to grant letters of administration in favour of the NSW Trustee, admitting the 2007 will to probate in common form.
[9]
The distinctive character of a grant of probate in common form, as distinct from a grant in solemn form, is explained in Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786. That judgment also explains the grounds upon which a grant of probate (including a grant of administration with a will annexed) can be revoked upon application to the Court.
[10]
If AR seeks to propound the 2015 will, he should be allowed a reasonable time within which to apply for revocation of the grant in favour of the NSW Trustee, explaining his failure to proceed with his application for a grant in a timely way, responsive to directions of the Court.
[11]
AR has done little in the context of these proceedings, or in the context of the earlier proceedings (in which IR v AR [2015] NSWSC 1187 was published) relating to management of his mother's protected estate, to make good his claim to beneficial ownership of his parents' property. It is not appropriate to delay administration of the deceased's estate any longer, particularly as orders can be, and are today, made designed to ensure that further delays on the part of AR are not compounded.
[12]
Accordingly, I make the following orders:
1. (1)
  ORDER that the will dated 27 March 2007 ("the will") of GR, who died on 15 May 2015, be admitted to probate in common form.
2. (2)
  ORDER that letters of administration, with the will annexed, be granted to the NSW Trustee.
3. (3)
  ORDER that the proceedings be referred to the Registrar to complete the grant.
4. (4)
  RESERVE to AR liberty to apply for orders that orders 1 and 2 be revoked and that, in lieu thereof, the purported will of the deceased dated 3 March 2015 be admitted to probate.
5. (5)
  ORDER that any application made pursuant to order 4 be made by way of a notice of motion (supported by affidavit evidence) filed in these proceedings no later than 23 November 2015.
6. (6)
  Order that any notice of motion filed pursuant to order 4:
7. (7)
  ORDER that AR file and serve, no later than 23 November 2015, any affidavits he proposes to file in support of such notice of motion as may be filed by him pursuant to order 4.
8. (8)
  ORDER that the amended summons filed by AR on 23 September 2015 be dismissed, without prejudice to the operation of orders 4, 5, 6 and 7 of these orders.
9. (9)
  ORDER, subject to further order, that the costs of IR and the NSW Trustee be paid out of the estate of the deceased.
10. (10)
  RESERVE to the NSW Trustee and IR jointly or severally liberty to apply for an order that the costs the subject of order 9 be paid or borne by AR.
11. (11)
  ORDER that the NSW Trustee, no later than 29 October 2015 or such other date as may be appointed by the court, serve a copy of these orders on AR.
12. (12)
  ORDER that order 11 may be complied with by despatch of a copy of these orders to the last known email address of AR.
13. (13)
  ORDER that these orders be entered forthwith.