04
- June
2021
Posted By : Ari Katsoulas
When can you Revoke a Grant of Probate? Case Note on James Justin O’Neill v Antony Patrick O’Neill [2015] NSWSC 644

By Ari Katsoulas, Barrister | (02) 8915-2006 | akatsoulas@wentworthchambers.com.au

In James Justin O’Neill v Antony Patrick O’Neill [2015] NSWSC 644 Justice Darke considered determined a summons seeking orders for the revocation of a grant of probate and, consequently, an application for a grant of letters of administration with the will annexed.

The proceedings – determined in May 2015 – were in relation to a grant made in 2003. A particular issue of contention between the two executors was a valuable lot of land in Rouse Hill NSW. The executor prosecuting the claim took active steps for the sale of the land; on the other hand, the defendant executor refused to participate in realising the Rouse Hill property. The period of silence from the Defendant lasted a number of years.

Darke J applied the principles outlined by the Court of Appeal in Bates v Messner (1967) 67 SR (NSW) 187 and Mavrideros v Mack [1998] NSWCA 286; (1998) 45 NSWLR 80.

In Mavrideros v Mack (supra) Sheller JA, with whom Priestley and Beazley JJA agreed, stated the relevant principles (at 101 and 102) as follows:

“[…] The principles to be applied are stated in the decision of this court in Bates v Messner. In that case, the appeal was from a decision of Myers J dismissing an application for the revocation of a grant of probate made to the respondent. Sugerman JA (at 189; 36) quoted from the judgment of Jeune P in In the Goods of Loveday [1900] P 154 at 156 and said the principle there stated had been consistently followed and no doubt cast on its correctness in point of principle.

Jeune P in the passage quoted said:

“After all, the real object which the court must always keep in view is the due and proper administration of the estate and the interests of the parties beneficially entitled thereto; and I can see no good reason why the court should not take fresh action in regard to an estate where it is made clear that its previous grant has turned out abortive or inefficient. If the court has in certain circumstances made a grant in the belief and hope that the person appointed will properly and fully administer the estate, and if it turns out that the person so appointed will not or cannot administer, I do not see why the court should not revoke an inoperative grant and make a fresh grant.”

Asprey JA said (at 191-192; 39-40):

“… that the essential basis of the exercise of the court’s inherent jurisdiction to revoke a grant of probate is that emphasised by Jeune P, namely, that the real object which the court must always keep in view is the due and proper administration of the estate in the interests of the parties beneficially entitled thereto on the part of the person to whom and by whose oath as to the faithful performance of his duties the court has been induced to entrust the office of executor. […]”

  1. Sheller JA then stated the following (at 108):

“The question was, to adapt the language of Asprey JA (in Bates v Messner at 192), whether the due and proper administration of an estate had either been put in jeopardy or had been prevented either by reasons of acts or omissions on the part of the executor or by virtue of matters personal to him, for example, mental infirmity, ill-health, or by virtue of the proof of other matters which established that the executor was not a fit and proper person to carry out the duties he had sworn to perform.”

In the circumstances, his honour considered the original grant of probate “even if it has not turned out to be abortive, has certainly become inefficient to a very high degree intdeed. It is in fact no longer functioning at all, and certainly not in any way like the manner intended.” [23] In the circustmances, his honour revoked the grant and ordered the plaintiffs be appointed administrators witht he will annexed.

By Ari Katsoulas, Barristerakatsoulas@wentworthchambers.com.au | (02) 8915-2006

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