Gorman v McGuire: Estate of J.M. Gorman [2002] NSWSC 1089

New South Wales Supreme Court

CITATION : Gorman v McGuire: Estate of J.M. Gorman [2002] NSWSC 1089 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 5505/02 HEARING DATE(S) : 13 November, 2002 JUDGMENT DATE : 13 November 2002

PARTIES : John Patrick Gorman - Plaintiff Lisa Bernadette McGuire - Defendant JUDGMENT OF : Palmer J

COUNSEL : T.G.R. Parker - Plaintiff Ex parte - Defendant SOLICITORS : Maurice Blackburn Cashman - Plaintiff Ex parte - Defendant CATCHWORDS : PROBATE - REVOCATION OF GRANT - EXECUTOR - One of two co-executors applies to Equity Court seeking his removal as executor because of conflict of interest and duty in his administration of the estate - Plaintiff seeks order for partial revocation of grant of probate - held: where one of two or more executors is to be removed, either voluntarily or involuntarily, the original grant of probate must be revoked and a fresh grant of probate made to the remaining executor or executors - partial revocation of a grant of probate is not possible - principle discussed. REVOCATION OF GRANT - PROCEDURE - An application for revocation of grant of probate is made in the inherent probate jurisdiction of the Court, not the general equitable jurisdiction, and the Probate Rules must be observed. REVOCATION OF GRANT - COSTS - Co-executor applies for revocation of grant because of conflict of interest - co-executor failed to obtain legal advice as to his position of conflict prior to applying for probate - if legal advice had been obtained, executor would have renounced grant and application for revocation would have been unnecessary - held: it was not reasonable that the costs of the application should be borne by the estate. LEGISLATION CITED : Family Provision Act 1982 (NSW) - Bates v Messner (1967) 67 SR(NSW) 187 CASES CITED : - Shaw, in the Estate of George - [1905] P.92 - Shaw v Thomas [1954] NZLR 585 DECISION : Original grant of probate revoked; fresh grant of probate made to Defendant as sole executrix; no order as to costs.