Estate of O’Loughlin [2013] SASC 20

On 20 February 2013 the Supreme Court of South Australia was again asked to determine whom would be the appropriate person to administer the estate of the deceased in circumstances where he died without leaving a Will.

Mr O’Loughlin was not survived by his parents, he did not have a spouse or domestic partner or children. He did however have nine siblings, one of whom was deceased. One of his brothers, Patrick and one of the daughters of the deceased sibling, Kym, applied for the administration of Mr O’Loughlin’s estate but disputes arose in the family apparently centred upon the dealings of Patrick with the business affairs of Mr O’Loughlin. In particular, one sibling, Raymond, had taken issue with Patrick regarding the legitimacy of his dealings with Mr O’Loughlin prior to his death.

Subsequently, Patrick withdrew his application leaving Kym to seek administration of Mr O’Loughlin’s estate. Raymond however, opposed that application and sought to appoint the Public Trustee as administrator. Counsel for Raymond sought to establish a lack of independence by suggesting that Kym had a reliance upon Patrick. However, Justice Gray accepted that Kym was aware of the need to act independently and testified that if appointed as administrator, she would do so. She also testified that she would seek legal advice in respect of legal issues arising during the administration of the estate. In finding that Kym was a credible and reliable witness Raymond’s application to appoint the Public Trustee was dismissed and the application made by Kym seeking a grant of Letters of Administration was granted.

The Court found that if it were to make a grant in favour of the Public Trustee, substantial expense would arise. In essence, Raymond was unable to articulate an adequate reason for the passing over of Kym as administrator of the estate.

Comment - Once again, this case demonstrates how fractious families can become when a deceased dies without leaving a valid Will, or any Will at all. No doubt significant expense was incurred by the estate and the parties in determining who should be the appropriate administrator which would have been avoided had an executor been appointed under a Will.