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Estate of Philip Mack (Deceased) [2022] NSWSC 1629 – 30 November 2022

Succession

Executors Ceasing to Act

Revocation of Probate

https://jade.io/article/956140

Last week, Hallen J accepted an executor’s application to revoke a grant of probate. Hallen J deemed this revocation would be in the best interest of the estate and in line with the testamentary discretion of the deceased, due to the personal and health reasons the executor offered in his application.

Facts

Philip Mack (Philip) passed away on 9 April 2019. In his 2016 will, Philip named his son, Ian Mack (Ian), and his business associate and friend, Paul Hickman (Paul), as executors. Philip also named his solicitor, John Snelgrove (John), as his substitute executor.

Throughout his life, Philip had been a successful businessman, operating various businesses all over the world. Paul had worked as the CEO of one of the companies that Philip owned for some time until he resigned in August 2021, for personal and health reasons.[1]

On 14 October 2022, Paul filed a summons, requesting that the probate of Philip’s will be revoked because he did not want to act as an executor any longer. Paul was not unfit or uncooperative.[2] Paul’s reasoning was that he considered himself “retired from business” and understood that the administration of the estate would take longer than anticipated.[3]

There was no defendant named in the summons, as nobody involved opposed Paul’s application. Philip’s sons, who were all beneficiaries of the estate, all signed their consent to the proposed orders.[4]

Judgement

Hallen J cited a previous decision where E M Heenan J provided two broad categories of reasons as to why the Court may revoke a grant of probate.[5] The first being that an error or a mistake was made during drafting the grant. The second was that the revocation would be necessary to ensure the successful administration of the estate.

Hallen J provided other reasons as to why the Court may revoke a grant upon the application of one of its grantees. A common reason being that the grantee, through their advancing age, may not be able to sufficient perform their duties.[6]

It was determined that the revocation was necessary as it was in the best interests of the estate to do so, as Paul had plainly stated that he was not able to effectively discharge his duties as an executor.[7] Hallen J provided that because Paul was listed as an executor on the current grant, revocation would now prevent Paul from having access to the assets of the estate that were intended to be distributed. Further, Philip’s appointment of John as a substitute executor, effectively planning for a situation such as this, provided insight into Philip’s testamentary intentions.

Hallen J ordered that the probate granted on 6 May 2019 be revoked and that the estate should bear the costs of the application.[8]


[1] Estate of Philip Mack (Deceased) [2022] NSWSC 1629 [6].

[2] Ibid [4].

[3] Ibid [12].

[4] Ibid [8].

[5] The Estate of Erminia Agnes Rogers v Rogers [2009] WASC 358 [23].

[6] Estate of Philip Mack (Deceased) [2022] NSWSC 1629 [24].

[7] Ibid[30].

[8] Ibid [38].

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