NSW Caselaw
New South Wales Supreme Court
CITATION : Upton v Downie [2007] NSWSC 1095
HEARING DATE(S) : 13/09/07
JUDGMENT DATE : 4 October 2007
JUDGMENT OF : Gzell J
DECISION : Grant of probate to be revoked.
CATCHWORDS : SUCCESSION - Wills, Probate and Administration - Probate and Letters of Administration - Whether grant of probate should be revoked - Executor husband of deceased asserting debt against the estate and not gift - No documentation - Dependant upon assessment of his own veracity - No details of how $200,000 raised by deceased by mortgage at elderly age spent - Alleged agreement to transfer half interest in house upon payment of half purchase price and not an agreement for sale - Whether conflict of interest and duty makes executor not a fit and proper person to continue as executor
Family Provision Act 1982 LEGISLATION CITED : Wills, Probate and Administration Act 1898 Succession Act 1981 (Qld)
Mavrideros v Mack (1998) 45 NSWLR 80 Bates v Messner (1966) 67 SR (NSW) 187 In the Goods of Loveday [1900] P 154 CASES CITED : Baldwin v Greenland (2007) 1 Qd R 117 Morgan v MacRae [2001] NSWSC 1017 Monty Financial Services Ltd v Delmo [1996] 1 VR 65 Titterton v Oates (1998) 143 FLR 467 Geddes, Roland and Studdert, Wills, Probate and Administration Law in New South Wales, LBC Information Services, Sydney, 1996
PARTIES : John Neville Upton - Plaintiff Robert James Downie - Defendant
FILE NUMBER(S) : SC 2695/07
COUNSEL : Mr M Lawson - Plaintiff Mr J Donohoe - Defendant
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