Brennan Estate – Brennan & Anor v McGuire [2010] NSWSC 1249

New South Wales Supreme Court

CITATION : Brennan Estate – Brennan & Anor v McGuire [2010] NSWSC 1249

HEARING DATE(S) : 25 October 2010

JUDGMENT DATE : 25 October 2010

JURISDICTION : Equity Division Probate List

JUDGMENT OF : Palmer J

EX TEMPORE JUDGMENT DATE : 25 October 2010

DECISION : Order that caveat be removed.

CATCHWORDS : SUCCESSION – PROBATE – CAVEAT – whether caveator had shown any interest in deceased's estate supporting lodgement of a caveat against grant of probate – no question of principle.

CATEGORY : Principal judgment

Andrew Curtis Brennan (First Plaintiff) PARTIES : Robert George Brennan (Second Plaintiff) Glenys Freya McGuire (Defendant) Ben McGuire (Caveator)

FILE NUMBER(S) : SC 2010/024734

F. Maghami (Plaintiffs) COUNSEL : N/A (Defendant) N/A (Caveator)

Staunton & Thompson (Plaintiffs) SOLICITORS : N/A (Defendant) N/A (Caveator)

2010/024734 Brennan Estate – Brennan & Anor v McGuire

JUDGMENT – Ex tempore

25 October , 2010

1 The executors named in the will of the late Enid Lesley Brennan seek a grant of probate of that will, which is dated 8 January 1999. 2 A succession of caveats against the granting of probate have been lodged, one by Glenys Freya McGuire and another, or perhaps two, by her son, Ben McGuire. The caveat lodged by Glenys Freya McGuire has lapsed. The latest caveat lodged by Ben McGuire is still current and is preventing a grant of probate in common form. That caveat is manifestly and incurably bad in form. It states the interest of Mr McGuire in the deceased's estate simply as follows: "My interest is: The estate of Enid Lesley Brennan is not in order." 3 Notice of this application for the removal of the caveat has been given to Mr McGuire in accordance with a direction of Windeyer J made on 11 October. In response, Mr McGuire has filed an affidavit of 20 October 2010 in which he sets out such interest as he might claim in the estate which would be sufficient to warrant refusal of probate to the executors. 4 Much of Mr McGuire's affidavit contains irrelevant material. However, the gist of the affidavit is that Mr McGuire claims to be the son of a lady who had a de facto relationship with Mr Robert Brennan, a son of the deceased who is named as one of the executors. Mr McGuire is not, himself, a child of that relationship. He says, nevertheless, that Mr Robert Brennan is his "de facto father" and that although the deceased was not his biological grandmother, nevertheless she and he regarded each other as grandmother and grandchild. 5 Mr McGuire complains that the executors appointed by the will, Mr Robert Brennan and Mr Andrew Brennan, are compromised in their ability to act impartially and properly as executors of the deceased's estate because, prior to the deceased's death, they dealt with her estate for their own benefit, and acted under a Power of Attorney which the deceased had granted to them. 6 The deceased's will, after appointing Messrs Andrew and Robert Brennan as executors, leaves the whole of her estate to such of her four sons as survive her. At least two of her children have survived her because, as named executors, they are applying for a grant of probate. 7 Mr McGuire does not claim that the will of which probate is now sought is invalid for some reason and that there is another valid will of the deceased under which he is a beneficiary. Because Mr McGuire is not biologically related to the deceased in any way he could not be a beneficiary of the deceased's estate even if, for some reason, there was a whole or partial intestacy. Accordingly, Mr McGuire has no present and legally enforceable interest in the deceased's estate although, doubtless, he has some personal interest in the affairs of the deceased's family generally. That personal interest is not sufficient in law to give Mr McGuire a caveatable interest in the deceased's estate. Nor does such a personal interest give him legal standing to institute any proceedings for the benefit of the estate. 8 Nothing has appeared from Mr McGuire's affidavit to suggest that there is any reason that probate of the deceased's will should not be granted to the executors in common form. If Mr McGuire has any claims against the estate other than as a beneficiary under the will, then he may make those claims after probate has been granted to the executors in the ordinary way. 9 I order that the caveat lodged by Mr McGuire be removed and that the application for probate proceed in the ordinary way, that is, as an application for a grant in common form. 10 I order that the costs of the application for removal of Mr McGuire's caveat be paid by Mr McGuire. – oOo –