The case involved a dispute between a mother and son in relation to the estate of the late John Borland, who died on 28 April 2025 aged 81. The case looks at some interesting law regarding an executor’s authority prior to a grant of probate in relation to property of the estate.
The Supreme Court case centred on a rural property that had been owned by the deceased. There was a large acreage that had a main house and a small cottage about 200 metres apart. The house and cottage had separate postal addresses.
The Will left the entire property, containing both the main house and cottage, to his son John, but the gift was subject to a life interest to his wife (the mother) on condition that she was residing there at the date of his death. The son was the appointed executor under the Will.
The mother had been living in the main house, however, she was not in good health. She was the recipient of a home care package which provided her with various support.
The son, who lived 4 hours away, came back into his parents’ lives when his father received a terminal cancer diagnosis. There was significant animosity between the mother and son in the final 6 months of the deceased’s life. The son installed CCTV cameras in the main house. His mother, feeling harassed, went so far as to attempt suicide.
The mother, in fear of her son, went to live with her daughter. During that time, the son moved all of her possessions out of the main house and into storage.
The mother’s application to the Supreme Court was seeking orders restraining the son from interfering with her occupation of the main house during her life pursuant to the life estate in the Will and to replace the son as administrator of the estate.
It seems, on face value, that the mother’s claim was straightforward.
However, the executor sought to run a number of technical legal arguments at the hearing, including that the mother had no right to return to the main house as probate had not been granted. Until probate is granted, beneficiaries of a life estate have no entitlement to it. Like any beneficiary, all they have is a mere right to the due administration of the Will.
The Court was satisfied that the mother was residing at the property, even though she was in the cottage and not the main house. The Court did not distinguish between the main house and the cottage, as the Will did not distinguish between the two.
In relation to the technical argument, the Court held that the son had put himself in a position of an executor de son tort. This meant he had the same duty as an admitted executor to administer the estate fairly and for the benefit of the beneficiaries under the Will.
The Court was satisfied that the mother had a good arguable case that the son had breached that duty by preventing her from occupying the main house. The Court also agreed that the mother had a good case to pass over the son as executor.
Interlocutory orders were made for the son to leave the main house and not interfere with, attend, approach, contact, or communicate with the mother, other than through the solicitors, while she lives there.
Boreland v Boreland
Kristy Nunn is a Director of Mullane Lindsay and is the leader of our Litigation Team. She has over 20 years’ experience as a litigation lawyer.
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