Sullivan v Craig; Estate of O'Sullivan [2008] NSWSC 1189

New South Wales Supreme Court

CITATION : Sullivan v Craig; Estate of O'Sullivan [2008] NSWSC 1189

HEARING DATE(S) : 03/11/08, 04/11/08

JUDGMENT DATE : 4 November 2008

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 4 November 2008

DECISION : Statement of claim dismissed.

CATCHWORDS : WILLS, PROBATE AND ADMINISTRATION – removal of executrix – whether improper administration – whether executrix bore malice towards beneficiaries or their guardian – application dismissed – no question of principle

LEGISLATION CITED : Family Law Act 1975 (Cth)

Mavrideros v Mack [1998] NSWCA 286; (1998) 45 NSWLR 80 CASES CITED : Bates v Messner (1967) 67 SR (NSW) 187 Labraga v Pomfret [2005] NSWSC 973

TEXTS CITED : Halsbury's Laws of England, 4th ed Vol 17

Cecile Sullivan & Ors PARTIES : v Mary Craig; The Estate of Timothy Joseph O'Sullivan

FILE NUMBER(S) : SC 117965/07

COUNSEL : Plaintiff: M B Evans Defendant: A Kuklik

SOLICITORS : Plaintiff: Hall Partners Defendant: McPhee Kelshaw

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WHITE J

Tuesday, 4 November 2008

117965/07 Cecile Sullivan & Ors v Mary Craig; The Estate of Timothy Joseph O'Sullivan JUDGMENT 1 HIS HONOUR: This is an application to revoke a grant of probate made on 19 October 2001 of the estate of the late Timothy Joseph O'Sullivan to the defendant; and for the grant of letters of administration with the will annexed in favour of the plaintiff. 2 The Court has inherent jurisdiction to remove an executor or administrator if it appears that the person appointed to administer the estate cannot or will not administer the estate properly. The question in such an application was stated in Mavrideros v Mack [1998] NSWCA 286; (1998) 45 NSWLR 80 at 108 to be: " ... 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.. "