Boreland v Boreland

Catchwords: SUCCESSION — Executors and administrators — Proceedings against executors and administrators — Application for relief
PRACTICE AND PROCEDURE — Injunctions — Interlocutory injunctions — Interim order

Legislation Cited: Probate and Administration Act 1898 (NSW)
Succession Act 2006 (NSW)

Cases Cited: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46
Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1
Cardiacos v Cooper Consulting & Construction Services (Aust) Pty Ltd [2009] NSWSC 938
Deigan (as executrix for the estate of the late James Boyd Lockrey) v Fussell [2019] NSWCA 299; (2019) 19 BPR 39,853
Hafza v D-G of Social Security (1985) 6 FCR 444
Re Estate of Spiros Vlahiotis (Deceased) [2019] SASC 207
Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533
Le v Angius [2022] NSWSC 240
Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306; [1990] HCA 45
Re Estate Kleinlehrer [2024] NSWSC 648
Williams v Holland [1965] 1 WLR 739

Texts Cited: Macquarie Dictionary, 3rd ed (1997)
JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s, Equity: Doctrines and Remedies (5th ed, 2014, LexisNexis)

Category: Procedural rulings

Parties: Robyn Tirrell Boreland (Plaintiff)
John Leslie Boreland (Defendant)

Representation: Counsel:
J O’Connor (Plaintiff)
J Lo Schiavo (Defendant)
Solicitors:
Walsh & Blair Lawyers (Plaintiff)
Orman Solicitors (Defendant)

File Number(s): 2025/224834

Publication restriction: Nil

JUDGMENT

1. These proceedings relate to the estate of the late John Leslie Boreland (the deceased) who died on 28 April 2025, aged 81. They were commenced by his former wife, the plaintiff, on 12 June 2025 when orders were made for her summons and affidavit in support to be filed in court. The defendant is John Boreland, the executor under the last will of the deceased dated 23 April 2025 (the will), who is the son of the plaintiff and the deceased. Without intending any disrespect, I will refer to family members of the deceased by their first names.

2. On 3 July 2025, I heard the plaintiff’s application for the interlocutory relief in the terms of prayers 6 to 9 of the summons. I made orders substantially in the form sought by the plaintiff on 4 July 2025 and indicated that I would provide my reasons subsequently, which I now do. The substantive orders made on 4 July 2025 were:

3. Upon the plaintiff giving the usual undertaking as to damages, order that the defendant is to vacate the rural property known as ‘Glenalma’ located at 1459 Old Narrandera Road, Euberta NSW (the Euberta property) by 5pm on Monday 7 July 2025.

4. Order that any person in occupation of the Euberta property, including the defendant, is to vacate the property by 5pm on Monday 7 July 2025.

5. Order that the defendant is to do all things necessary to enable the plaintiff to enter the Euberta property by 5pm on Monday 7 July 2025.

6. Order that from 5pm on 7 July 2025, until further order of the Court or the final determination of the proceedings, the defendant be restrained from:

(a) doing any act or thing whatsoever which may interfere with the plaintiff’s access to and occupation of the Euberta property; (b) attending or entering the Euberta property; (c) approaching directly or indirectly the plaintiff; (d) contacting the plaintiff; (e) communicating directly or indirectly with the plaintiff, other than through the defendant’s solicitors by way of correspondence with the plaintiff’s solicitors.

5. Order that Orman Solicitors provide the plaintiff’s solicitors with a copy of any will made by the late John Leslie Boreland that is within the possession or control of Orman Solicitors by 5pm on 11 July 2025.

6. Costs reserved.

7. The evidence on the interlocutory application comprised the following: (a) the plaintiff relied on her two affidavits made on 11 June 2025 and 27 June 2025, the affidavit of Sharron McCartney, made on 27 June 2025 and the affidavit of Joshua Ross made on 27 June 2025. Sharron is the daughter of the plaintiff from a previous marriage and Joshua is Sharron’s son; and (b) the defendant relied on his affidavit made on 20 June 2025 and an affidavit of Renata Matyear made on 3 July 2025. Ms Matyear is the solicitor for the defendant and took instructions from the deceased regarding, and prepared, the will. The witnesses were not cross-examined.

Background

4. The plaintiff first met the deceased in 1969 and they were married in 1976. They had two children together, the defendant and a daughter, Lucinda. The plaintiff and the deceased were divorced in 1987 but it is not in dispute that they remained on good terms.

5. The plaintiff deposes that, except for a brief six-month separation in 1987, she and the deceased continued to live in the same residence but maintaining separate bedrooms at the following properties in these time periods: (a) from about 1987 to 1994, at a property in Lakemba, NSW; (b) from about 1994 to February 2022, at a property in Belmore, NSW; and (c) from February 2022 until the deceased’s death in April 2025, at the Euberta property.

6. The defendant disputes these dates, but I accept the plaintiff’s evidence on this issue, noting that it is corroborated by Sharron in her affidavit while the defendant’s evidence on this matter is doubtful, particularly as he does not dispute the plaintiff’s evidence that he was estranged from the plaintiff and the deceased from 2017 until December 2024.

7. The Euberta property is approximately 114 acres in size and is located at 1459 Old Narrandera Road, Euberta. It was purchased by the deceased in around November 2021. It contains two residences, about 200 metres apart, which the parties referred to as ‘the main house’ and ‘the cottage’. The main house has 4 bedrooms with a wrap-around veranda with each bedroom having a door onto the veranda. The cottage has 2 bedrooms and is less than half the size of the main house and has steep brick stairs at the front entrance and steps at the rear which make access for the plaintiff difficult. The main house is located in the centre of the property and is accessed by a long driveway from the main road and the cottage is located at the front left of the property. They have separate driveways, and the cottage has its own postal address of 1459A Old Narrandera Road, Euberta to distinguish it from the main house.

8. The plaintiff, who is 78 years of age, suffers from diabetes and is in poor health. She has a My Aged Care home care package (level 4) which was set up for the Euberta property in 2022. As part of the home care package, she was provided with a disability bed, recliner chair and a mobility scooter and receives assistance with personal care, cooking and cleaning. She deposes that from the time she moved to the Euberta property in February 2022, she lived in the main house with the deceased and their daughter Lucinda who was the plaintiff’s carer until March 2024 when Lucinda had to relocate due to work commitments. In 2022 Sharron and her late husband moved into the cottage. After Sharron’s husband died in November 2022, Sharron continued to live in the cottage and has acted as the plaintiff’s carer since Lucinda’s departure. The plaintiff deposes that she is currently unable to access her home care package as she has been prevented by the defendant from returning to the Euberta property.

9. The plaintiff deposes that at the time of the deceased’s death she was living in the main house and Sharron was living in the cottage. She deposes that while she has stayed in the cottage with Sharron at various times, when the deceased or Lucinda were away or her nurses were not present, the main house was where she has lived since February 2022. It is where her disability bed, her recliner chair, furniture, rollator, clothes and other personal possessions were located at the time of the deceased’s death. This evidence is corroborated by Sharron and Joshua in their affidavits.

10. In particular, Sharron deposes that she was in the main house on the day of the deceased’s death and went into the plaintiff’s bedroom where she saw the plaintiff’s bed, her rollator, her clothes hanging in the wardrobe and her jewellery cabinet on the stand in the corner of the room, and the house was full of the furniture which the plaintiff had left there.

11. The defendant lives near Jindabyne, NSW, which is about four hours by car from the Euberta property.

12. It is clear from the evidence that there has been a major breakdown in the relationship between the plaintiff (and her daughters Lucinda and Sharron) on the one hand and the defendant on the other. It is not in dispute that from around December 2017 until December 2024, the defendant had no contact with the plaintiff and the deceased. In December 2024, the deceased was diagnosed with gastric cancer and the plaintiff and the defendant met again around that time when the defendant visited the deceased at Concord Hospital. From December 2024 until his death, the deceased was hospitalised, apart from a short period in March 2025 when he returned to the Euberta property, prior to his final admission to Wagga Wagga Base Hospital where he died.

13. The plaintiff makes very serious allegations in her affidavits regarding her treatment by the defendant since December 2024. She gives detailed evidence regarding the defendant’s intimidatory and aggressive behaviour towards her. These allegations are corroborated by Sharron’s evidence. While these allegations are untested, there are a number of matters in the evidence regarding the plaintiff’s relationship with the defendant which are disturbing. It is sufficient for present purposes to mention the four matters noted below.

14. First, before the deceased’s death and without the plaintiff’s consent, the defendant arranged for CCTV cameras to be installed on the Euberta property including inside the main house. One camera in the main house faced the recliner chair which the plaintiff would usually occupy. The plaintiff’s daughters took the cameras down on three occasions but they were reinstated by the defendant, including after the deceased’s death. The defendant’s explanation for installing the cameras in the chosen locations is less than compelling.

15. Secondly, on 24 April 2025 (which was four days before the deceased’s death) the plaintiff attempted suicide and was admitted to Wagga Wagga Base Hospital where she remained until her discharge on 29 April 2025. Her evidence is that she tried to commit suicide to escape the defendant, and that following her discharge from hospital she was living with her daughter Lucinda in hiding from the defendant. The defendant does not dispute that he refused to allow the plaintiff to return to the Euberta property following the deceased’s death and only recently consented to her living in the cottage with Sharron.

16. Thirdly, the defendant arranged for a private funeral for the deceased. The plaintiff was first told of the time and place of the funeral by an email sent at 10:05am on 5 June 2025 by the defendant’s solicitor to the plaintiff’s solicitor stating that the funeral would take place at 11am that day in Harden, NSW. She was at that time in Wagga Wagga and this gave her insufficient time to travel to Harden for the funeral. No sensible explanation is given by the defendant for excluding the plaintiff from the funeral. The delay in holding the funeral came about because the defendant requested the NSW Coroner to investigate the circumstances of the deceased’s death, in particular whether it was related to the deceased hitting his head as a result of a fall in the hospital on 28 April 2025. The NSW Coroner responded by a letter dated 23 May 2025 that following various enquiries he had not identified any matter which fell within the scope of the coronial jurisdiction to investigate a death and declined to do so.

17. Fourthly, the defendant has removed from the main house all the plaintiff’s personal belongings located there at the time of the deceased’s death.

18. The defendant has yet to apply for probate. However, he has taken a number of steps including taking possession of the Euberta property, installing CCTV cameras on the property, and transferring the possessions of the deceased in the main house to a storage container located away from the property, which he states were done ‘in my role of executor’.

The will

19. Under cl 3 of the will the defendant is appointed executor and trustee, with the plaintiff as the alternative executor and trustee should the defendant be unable or unwilling to take on the role.

20. Clause 4 of the will provides:

‘In the event my former wife ROBYN TIRRELL BORELAND and/or my stepdaughter SHARON McCARTNEY is residing in the property at ‘Glenalma’ 1459 Old Narrandera Road, Euberta in the State of New South Wales (hereinafter referred to as the ‘Euberta property’) that is in my name at the time of my death then I provide a life-estate so that they can remain living in the Euberta property unless they both choose to move out of the property involuntarily.’

21. I note that the address stated in cl 4 is that for the entire Euberta property and not just the cottage.

22. By cl 5(c) the deceased set aside an amount of $700,000 ‘to pay the rates, all outgoings, upkeep and maintenance of the Euberta property that Robyn and Sharon are living in as per cl 4 and also to pay improvements to the property subject to those improvements being approved by [the defendant]’. Under cl 5(d), there is a gift of the Euberta property to the defendant subject to the life estate under cl 4. Under cl 5(f) the residue of the estate is to be held on trust ‘for the welfare living expenses of [the plaintiff] during her lifetime, and any remainder on her death is to be gifted to [the defendant]’.

23. The will also includes gifts in favour of Lucinda (a devise of a property at Belmore, Sydney) and the defendant. The only beneficiaries under the will are the plaintiff, the defendant, Sharron and Lucinda.

24. Ms Matyear prepared the will and deposes to the instructions she received from the deceased. In relation to cl 4, she deposes that: ‘He told me that “Robyn and Sharon lived together at Euberta” and so to “provide a life estate for them at Euberta”. He provided me the address of 1459 Old Narrandera Rd, Euberta.’

25. There is no dispute that the will is valid.

Consideration

26. The final relief claimed in the summons includes an order restraining the defendant from doing any act which may interfere with the plaintiff’s occupation of the Euberta property (pursuant to the life estate granted under the will) or attending or entering the Euberta property, and orders for the plaintiff to be appointed administrator of the estate of the deceased in place of the defendant.

27. The plaintiff seeks the interlocutory relief on an urgent basis because she wishes to occupy the main house rather than the cottage and has nowhere else to live. Counsel for the plaintiff puts as the basis for the interlocutory relief her claim to an entitlement to a life estate under the will and that the balance of convenience favours the grant of the relief: cf Le v Angius [2022] NSWSC 240 at [65].

28. The defendant opposes the grant of the interlocutory relief on the basis that there is no urgency in the matter, particularly as the defendant has no opposition to the plaintiff living in the cottage and will give an undertaking not to interfere with her doing so. The plaintiff has no right to enter the main house at the Euberta property as probate has not yet been granted and the life interest granted to her is in the cottage and not the main house. Until the grant of probate, beneficiaries do not have any entitlement to a life estate under the will.

29. It was not in dispute that in order to be entitled to the interlocutory relief sought, the plaintiff bears the onus of establishing that there is a serious question to be tried for final relief and that the balance of convenience favours the grant of an injunction on an interlocutory basis: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at [19], [65]-[72].

30. As to the first requirement, whether there is a serious question to be tried for final relief depends on whether there is a prima facie case, in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the plaintiff will be held entitled to relief: Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1 at 622. Put another way, she must show a sufficient likelihood of success to justify the preservation of the status quo pending final hearing: O’Neill at [70]-[71].

31. Two issues arise as to this requirement. The first is the extent of the life estate conferred by cl 4 of the will. The life estate is expressed to be in respect of ‘the property at ‘‘Glenalma’ 1459 Old Narrandera Road, Euberta’ and will arise if at the time of the deceased’s death the plaintiff was ‘residing in’ that property. If this condition is met, she is entitled to a life estate ‘so that she can remain living in the Euberta property’.

32. The ordinary meaning of ‘reside’ is ‘to dwell permanently or for a considerable time; have one’s abode for a time’: Macquarie Dictionary, 3rd ed (1997). The concept of ‘residing’ in a place does not require continued physical presence there: Cardiacos v Cooper Consulting & Construction Services (Aust) Pty Ltd [2009] NSWSC 938 at [27]; Hafza v Director-General of Social Security (1985) 6 FCR 444 at 449. In the latter case, Wilcox J said at 449-450:

There is a plethora of decisions, arising in various contexts but predominantly matrimonial causes and revenue cases, relating to the legal concept of residence. As a general concept residence includes two elements: physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily forever. The concept was explained in a taxation case, Koitaki Para Rubber Estates Ltd v FC of T (1941) 64 CLR 241 at 249 , by Williams J: “The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other abode.”

Physical presence and intention will coincide for most of the time. But few people are always at home. Once a person has established a home in a particular place, even involuntarily (see Inland Revenue Commissioners v Lysaght [1928] AC 234 at 248 and Keil v Keil [1947] VLR 383) a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place Levene v Inland Revenue Commissioners [1928] AC 217 at 225 and Judd v Judd (1957) 75 WN (NSW) 147 at 149 together with an intention to return to that place and an attitude that that place remains “home” (see Norman v Norman (1969) 16 FLR 231 at 236 ). It is important to observe, firstly, that a person may simultaneously be a resident in more than one place — see the facts of Lysaght and the reference by Williams J to “a home or homes” — and, secondly, that the application of the general concept of residence to any particular case must depend upon the wording, and underlying purposes, of the particular statute in relation to which the question arises. But, where the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as “home”, a change of intention may be decisive of the question whether residence in a particular place has been maintained.

33. The plaintiff has a strong arguable case that she was residing in the main house at the time of the deceased’s death, but even if she was only residing in the cottage at the time of the deceased death, she has a strong arguable case that that would make no difference. No distinction is drawn in cl 4 between residence in the main house or the cottage, nor is the life estate expressed to be limited to one or the other. Rather, it is a life estate in respect of ‘the property at ‘‘Glenalma’ 1459 Old Narrandera Road, Euberta’, which is the entire property.

34. I do not read the affidavit of Ms Matyear as providing any support for the contention put by counsel for the defendant that the life estate is limited to the cottage only, whether as a matter of construction of cl 4 or through rectification of the will under s 27 of the Succession Act 2006 (NSW).

35. The second issue is whether a right of occupation of the main house is precluded because probate of the will has not been granted and administration is not complete. This issue was not explored by counsel for the parties in their submissions.

36. Relevantly for present purposes, a number of propositions are established by the authorities:

(1) In the period from death to the grant of probate, legal title to the real and personal property of the deceased is vested in the NSW Trustee and Guardian and upon a grant of probate will vest retrospectively in the executor: Probate and Administration Act 1898 (NSW), s 44 and s 61; Deigan (as executrix for the estate of the late James Boyd Lockrey) v Fussell [2019] NSWCA 299; (2019) 19 BPR 39,853 at [174], [176]-[177].

(2) In that interim period up to the grant of probate, while legal title is vested in the NSW Trustee, the executor will be the beneficial owner of the real and personal estate with the power to take possession of the deceased’s assets and their indicia of title, and there is no restriction on the executor’s authority to deal with the assets except as arises by necessary implication from the fact that legal title is outstanding in the NSW Trustee and Guardian: Deigan at [175], [176].

(3) Until the estate is fully administered, a beneficiary under the will has no beneficial interest in any particular item of property but rather a right, by way of a chose in action, to have the estate duly administered in accordance with the duties of the executor: Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306; [1990] HCA 45 at 313-314.

(4) Prior to the grant of probate, if the executor named in the will intermeddles with estate property by taking steps to administer the estate indicative of acceptance of the office of executor, or takes possession or control of estate assets (or otherwise deals with them) other than merely to preserve or protect the assets, he or she will be treated as an executor de son tort: Re Estate Kleinlehrer (dec’d*)* [2024] NSWSC 648 at [18]-[20].

37. As a consequence of (3) above, the plaintiff does not presently have an interest in the Euberta property as the estate is unadministered. In relation to (4), the steps taken by the defendant since the deceased’s death as recorded in the evidence involve an intermeddling with the deceased’s estate which has resulted in him becoming an executor de son tort. As an executor de son tort, he has the same duty as an executor to administer the estate fairly and for the benefit of the beneficiaries under the will.

38. In my view the plaintiff has a good arguable case, to be determined at final hearing, that the defendant has breached that duty by preventing her from occupying the main house. A beneficiary who takes possession, prior to completion of administration, of real property which is given to that beneficiary under the will has no right to retain possession of the property as against the executor where the executor desires possession in order to sell the property for the purposes of the due administration of the estate: Williams v Holland [1965] 1 WLR 739 at 743-744. However, there is no suggestion here that the executor wishes or needs to sell the Euberta property in order to meet the liabilities of the estate in the course of administration. To the contrary, nothing in the evidence suggests any need to sell any property to meet estate liabilities and consistently with this the defendant consents to the plaintiff occupying the cottage on the Euberta property.

39. Further, the plaintiff has established a prima facie case that, if the evidence remains as it is, the defendant should be passed over as executor of the estate. In Re Estate of Spiros Vlahiotis (Deceased) [2019] SASC 207 at [31], Stanley J summarised the relevant principles as follows (citations omitted):

A court will pass over a named executor where to appoint that executor would place the administration of the estate in jeopardy. There are no limits to the grounds upon which a named executor may be passed over as each case depends upon its own facts. The Court’s overriding concern is promoting the orderly administration of the estate and the welfare and the best interests of the beneficiaries. The primary concern of the Court will be to ensure the estate is efficiently and properly administered according to the terms of the will. In order to determine whether a named executor should be passed over it is not necessary to make any final determination in relation to the claims made against them.

40. In my view, it is clear that the relationship between the defendant and the other beneficiaries under the will (being the plaintiff, Sharron and Lucinda) has completely broken down. On the evidence presently before the Court the plaintiff has a strongly arguable case that the administration of the estate is in jeopardy and the appointment of the defendant as executor would not promote the orderly administration of the estate and the welfare and best interests of the beneficiaries.

41. If the plaintiff’s application to replace the defendant as executor is successful at final hearing, there is no reason in principle why the plaintiff could not occupy the Euberta property without interference from the defendant. It is not unusual for a beneficiary to occupy real property of the estate during administration. While an executor may require occupation rent to be paid, no occupation rent is claimed, nor would it be appropriate as the plaintiff’s entitlement is as a life tenant and it is clear from cl 4 of the will that the deceased intended that her entitlement to occupy the property would arise on and from the date of his death.

42. For these reasons, the plaintiff has established that there is a serious question to be tried.

43. As far as the balance of convenience is concerned, it is necessary to determine what course is best calculated to achieve justice between the parties, bearing in mind the consequences to the defendant of the grant of the injunction in support of relief which the plaintiff might not ultimately obtain and the consequences to the plaintiff of refusing the injunction in support of relief which she might ultimately be held to be entitled: Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 535.

44. I consider the plaintiff’s case for final relief is strong. The plaintiff is 78 years of age, in poor health, and reliant on her daughter Sharron, who acts as her carer. While the defendant is prepared to give an undertaking to permit the plaintiff and Sharron to occupy the cottage, I am satisfied on the evidence that the cottage is not a suitable place for them to live together for a lengthy period.

45. Unless the interlocutory application is sought in equity’s exclusive jurisdiction, an aspect of the balance of convenience is whether an award of damages at trial would be an adequate remedy, which turns on whether the injury complained of can properly be compensated in damages: JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s, Equity: Doctrines and Remedies (5th ed, 2014, LexisNexis) at [21-345]. It was not suggested that damages would be an adequate remedy, and in my view they would not be.

46. There is nothing in the evidence to suggest any prejudice to the defendant if the plaintiff is permitted to occupy the main house until final hearing. In particular, he lives near Jindabyne and does not propose to live at the Euberta property. His only stated reason for wishing to exclude the plaintiff from the main house is the need for it to be properly maintained. However, there is nothing in the evidence to suggest that the plaintiff and/or Sharron will not maintain the main house properly if they are permitted to live there. The evidence makes clear the complete breakdown in the relationship of the plaintiff and the defendant and, on the basis of that evidence, it is plainly undesirable for the defendant to have access to the property while the plaintiff is living there, whether in the main house or the cottage, pending final hearing. No third party will be adversely impacted by the injunction.

47. Contrary to the defendant’s submission, giving possession to the plaintiff of the main house is urgent and appropriate in all the circumstances to maintain the status quo up to final hearing.

48. No discretionary factor was raised as a reason for not granting the interlocutory relief.

49. In my view, having considered all the matters raised by the parties, the plaintiff has established both that there is a serious question to be tried and that the balance of convenience is in favour of the grant of the interlocutory relief sought.

**********

Amendments

18 July 2025

Paragraph numbering corrected.