Application by NSW Trustee and Guardian Re Mountain - [2018] NSWSC 419

Supreme Court

New South Wales

Medium Neutral Citation: Application by NSW Trustee and Guardian Re Mountain [2018] NSWSC 419
Hearing dates: 22 March 2018
Decision date: 22 March 2018
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Direct that the plaintiff forward to my Associate proposed short minutes of order in relation to the distribution of the estate.

Catchwords: JUDICIAL ADVICE – Intestate estate – Whether it is appropriate that the administrator carry out further searches in relation to the existence of next of kin of the deceased
Legislation Cited: Births, Deaths and Marriages Registration Act 1995 (NSW), s 50
Succession Act 2006 (NSW), Ch 4
Trustee Act 1925 (NSW), s 63(1)
Cases Cited: Re Benjamin [1902] 1 Ch 723
Category: Principal judgment
Parties: NSW Trustee & Guardian as administrator of the estate of the late David Alan Mountain (Plaintiff)
Representation:
Counsel:
A Hill (Plaintiff)
Solicitors:
NSW Trustee & Guardian (Plaintiff)

File Number(s): 2017/00368075
Publication restriction: Nil

ex tempore Judgment

HER HONOUR: This is an application by summons filed by the New South Wales Trustee and Guardian as administrator of the estate of the late David Alan Mountain, seeking judicial advice pursuant to s 63(1) of the Trustee Act 1925 (NSW) as to whether the plaintiff should continue next of kin searches of the deceased, who died intestate on 31 July 2013 in New South Wales. The summons seeks, if the answer to that question is in the negative, an order that the plaintiff be at liberty to pay the estate of the deceased to the beneficiaries identified by the New South Wales Trustee and Guardian, what is referred to as a Benjamin order (a reference to Re Benjamin [1902] 1 Ch 723).
In the alternative, the plaintiff seeks the opinion, advice and directions of the court in respect of the facts set out in an affidavit sworn 26 October 2017 by Kelvin Kwan, a legal officer employed by the New South Wales Trustee and Guardian who has carriage of the present matter on behalf of the plaintiff. Read in support of the application is the affidavit of Mr Kwan to which is annexed an advice from Dr Simon Chapple of Counsel. Tendered as Exhibit A is a bundle of documents which were exhibited to Mr Kwan’s affidavit. Also tendered have been various documents indicating searches that have been made.

Background

By way of background, the deceased was born on 15 November 1927 in Sydney, New South Wales. The deceased’s birth certificate records the deceased’s name as Alan David Mountain, but it appears that the deceased used the name David Alan Mountain during his lifetime.
The deceased’s estate is valued at $828,801.80. Letters of administration were granted to the New South Wales Trustee and Guardian on 16 July 2014.
The deceased’s history, which I take from the affidavit of Mr Kwan and by reference to materials in the exhibit to Mr Kwan’s affidavit (Exhibit A), is as follows. There is no record of the deceased marrying in New…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWSC 419
Decision Date: 22 March 2018

CaseChat Overview and Summary

In the case of Application by NSW Trustee and Guardian Re Mountain, the dispute arose from the administration of an intestate estate. The deceased, Mr. Mountain, passed away without leaving a will, leaving his estate subject to the administration of the NSW Trustee and Guardian. The dispute centred on whether the administrator should undertake further searches to identify any potential next of kin who might have a claim to the estate. The matter was brought before the Supreme Court of New South Wales.

The central legal issues before the court were whether the administrator had a duty to conduct further investigations to locate any next of kin and, if so, the extent of those investigations. The court had to consider the legal principles governing the administration of intestacy, the duties of the administrator, and the balance between the administrator's duty to locate next of kin and the practicalities of such investigations. Additionally, the court had to weigh the interests of potential claimants against the need to bring the estate to a timely conclusion.

The court held that while the administrator had a duty to take reasonable steps to locate next of kin, this duty was not absolute. The court considered the practicalities and resource implications of extensive searches, ultimately finding that the administrator had already made reasonable efforts in this regard. The court ruled that further searches would only be appropriate if there were specific, credible leads suggesting the existence of next of kin who might have a legitimate claim to the estate. The court's decision balanced the need for thoroughness in estate administration with the need to avoid undue delay and expense.

The court did not order the administrator to carry out further searches but left the decision open for reconsideration if new information emerged suggesting the existence of next of kin. The court's ruling provided a clear guideline for the administrator in handling similar situations in the future.

Orders