Gould v Gould [2005] NSWSC 914

New South Wales Supreme Court

CITATION : Gould v Gould [2005] NSWSC 914

HEARING DATE(S) : 5 September 2005

JUDGMENT DATE : 8 September 2005

JURISDICTION : Equity

JUDGMENT OF : Campbell J

DECISION : See orders made at para 14

CATCHWORDS : SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - probate and letters of administration - double probate granted - executor to whom double probate granted removed - form of orders appropriate to effect that removal

Family Provision Act 1982 LEGISLATION CITED : Supreme Court Rules 1970 Wills, Probate and Administration Act 1898

Bates v Messner (1967) 67 SR(NSW) 187 Re DEF and the Protected Estates Act 1983 [2005] NSWSC 534 Geddes, Rowland & Studdert, Wills Probate and Administration Law in New South Wales (LBC Information Services 1996) Gorman v McGuire; Estate of J M Gorman [2002] NSWSC 1089 CASES CITED : Mavrideros v Mack (1998) 45 NSWLR 80 O'Brien v McCormick [2005] NSWSC 619 Profilio v Profilio [1999] NSWSC 657 In the Estate of George Shaw [1905] P 92

Richard Kenneth Gould - Plaintiff PARTIES : John Douglas Gould - Defendant

FILE NUMBER(S) : SC 5781/04 & 2467/05

DJ Durston - Plaintiff COUNSEL : Defendant appeared in person

Jeffrey M Jones - Plaintiff SOLICITORS : Defendant appeared in person

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

CAMPBELL J

8 SEPTEMBER 2005

5781/04 RICHARD KENNETH GOULD v JOHN DOUGLAS GOULD 2467/05 RICHARD KENNETH GOULD v JOHN DOUGLAS GOULD JUDGMENT 1 HIS HONOUR: On 5 September 2005 I gave oral reasons for judgment, concluding that the defendant should be removed as an executor of the estate of his late mother by reason of his non-co-operation and obstruction in the administration of the estate: Bates v Messner (1967) 67 SR(NSW) 187; Mavrideros v Mack (1998) 45 NSWLR 80. I reserved the question of the precise form of orders which should be made. These reasons relate to that reserved question. 2 The Will of the late Gwendoline Gould appointed her sons Richard Gould and John Gould as executors. At first, John did not wish to apply for probate of the Will. On 10 April 2003 a grant of probate was made to: "Richard Kenneth Gould … one of the executors appointed under the will. Leave is reserved to John Douglas Gould the other executor to come in and prove the Will." 3 The making of a grant expressed in that way is authorised by section 41 Wills, Probate and Administration Act 1898 which provides: "The Court may, if it thinks fit, grant probate to one or more of the executors named in any will, reserving leave to the other or others who have not renounced to come in and apply for probate at some future date." 4 In exercise of that leave, John also later proved the Will. On 26 September 2003 the Court made a grant to John. In accordance with the usual practice in such situations, the grant was expressed to be not a grant of "probate", but a grant of "double probate". Similarly, if a Will appoints three executors, and a grant of probate is made to one of them alone with leave for the others to come in and prove the Will, and those others exercise the leave so granted at different times, the last of the grants of probate which is made is referred to as a "treble probate". See Geddes, Rowland and Studdert, Wills Probate and Administration Law in New South Wales (LBC Information Services 1996) p 355. 5 The grant of double probate to John said: "DOUBLE PROBATE of the last Will and Testament of the abovenamed deceased is hereby granted to: JOHN DOUGLAS GOULD … one of the executors appointed under the Will, pursuant to leave reserved." 6 The usual practice of the Court, when such a grant of double probate is made, is to require the original probate to be brought into the Registry, to bind the original probate up with the newly made grant of double probate, and to issue that document in its bound form: Geddes, Rowland and Studdert, Wills Probate and Administration Law in New South Wales (LBC Information Services 1996) p 765. The objective of that way of proceeding is to make sure that, thenceforth, any person who asks to see the original of the grant of probate will be presented with a document which accurately states the then position concerning the grant of representation which has been made in the estate. It is a similar objective to the one involved in requiring a certified copy of any order made under the Family Provision Act 1982 to be copied onto the grant of probate (Supreme Court Rules 1970 Schedule J clause 11), as such an order operates as a codicil to the will (section 14 Family Provision Act 1982), and only if the order is actually endorsed on the grant of probate can the grant correctly represent what are the dispositive provisions of the will of which probate has been granted. 7 It is the grant of double probate to John which I have held ought be revoked.