Gould v Gould

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.

8 If a grant of probate has been made to two executors who both applied for probate at the same time, and an order is made revoking the grant to one of those executors, that order is given effect to by requiring the original probate to be brought into the Registry, revoking that probate, and making a fresh grant of probate to the executor whose appointment has not been revoked: In the Estate of George Shaw [1905] P 92 at 93; Gorman v McGuire; Estate of J M Gorman [2002] NSWSC 1089 at [6] - [7]; O'Brien v McCormick [2005] NSWSC 619 at [50]. As Palmer J explained at [7] in Gorman: "That the original grant should be recalled and revoked and that a fresh grant should be made is necessary because a grant of probate is a public document and often must be produced to third parties so that the executors can get in and administer the property of the deceased's estate. The grant must be, and must appear to be, complete on its face so that third parties may act upon it without concern that it may have subsequently been varied as to the continuance in office of one of the named executors." 9 For the purpose of that fresh grant, the Court does not require the continuing executor to prove again all the matters which were proved to obtain the original grant. The objective is, rather, that the probate document which is in circulation will represent the true state of affairs. To the extent to which Bryson J, in Profilio v Profilio [1999] NSWSC 657 at [33] - [37] was concerned that there was a possibility that an executor might need to prove again the matters required to be proved for the original grant, and saw that as a reason for taking a different course to that of Palmer J in Gorman v McGuire; Estate of J M Gorman [2002] NSWSC 1089. I doubt that that concern is of practical significance. In my view, the procedure recommended by Palmer J is the correct one. 10 Revocation of the initial grant, and the grant of double probate, does not affect the validity of acts of administration which were carried out before they were revoked: section 40D Wills Probate and Administration Act 1898, which is consistent with the general law concerning the validity of actions done pursuant to an order of a superior court which is later revoked: see cases collected in Re DEF and the Protected Estates Act 1983 [2005] NSWSC 534 at [19]. 11 Applying the principle in para [8] above to the present circumstances, it would not be possible to make an order for the revocation of the double probate, and nothing more. As well, the double probate needs to be brought into the Registry and retained in the file, so that it is not out in the community as a potential source of confusion and error. 12 The evidence does not make clear whether the usual practice of binding up the probate and double probate was followed in the present case (although there is no reason to believe it was not followed). If the practice was followed, the need to bring in the double probate to the Registry means that the original probate will also need to be brought into the Registry. 13 Further, it will not be possible for the original probate to be simply re-issued in its original form. In its original form, it contains a grant of leave to John to come in and prove the Will, and that leave has now been exercised and is no longer extant. If a grant of probate to one of several executors is revoked because that person comes to be incapable, and there is reason to believe that that person might recover their capacity, it can be appropriate for the new grant which is made after revocation of the initial grant to include liberty for that person to come in and prove the will if he or she recovers capacity: In the Estate of George Shaw [1905] P 92. However, when John has been removed because his continuance as executor impedes the administration of the estate, it is not appropriate for the new grant of probate to Richard to state that it reserves to John a right to come in and prove. The need to issue a fresh grant to Richard, not containing liberty for John to come in and prove, provides a separate reason why it is necessary for the original grant of probate also to be brought in to the Registry. Thus, the fresh grant of probate which is issued to Richard will not bear any notation that John has leave to come in and prove the Will. Orders 14 I order:

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