Bollinger v Bell - [2022] NSWSC 486

Supreme Court

New South Wales

Medium Neutral Citation: Bollinger v Bell; The Estate of the Late Colin Bell [2022] NSWSC 486
Hearing dates: 12, 14 & 20 April 2022
Date of orders: 21 April 2022
Decision date: 26 April 2022
Jurisdiction: Equity - Duty List
Before: Slattery J
Decision:
Separate question decided. Orders made in relation to the other contested issues concerning the future management of the deceased’s estate.

Catchwords:
PROTECTIVE PROCEEDINGS – guardianship – determination of separate question – Uniform Civil Procedure Rules, r 28.2 – widow of a deceased person applies for the continuation of orders that were made against the living estate of a “managed person”, when he was subject to management orders in protective proceedings brought under the NSW Trustee and Guardian Act 1987 – whether existing orders made in the protective proceedings bind the estate of the deceased after his death – effect of NSW Trustee and Guardian Act, s 93 – what directions should be made in respect of other contested issues concerning the future management of the deceased’s estate, including the appointment of a special administrator.

Legislation Cited:
NSW Trustee and Guardian Act 1987, Division 5
Family Law Act 1975 (Cth)
Probate and Administration Act1898
Succession Act 2006
Uniform Civil Procedure Rule 2005, r 28.2

Category: Procedural rulings
Parties: Plaintiff: Donna-May Bollinger
Defendant: Ned Joseph Bell
Representation:
Counsel:
Plaintiff: J. Brown
Defendant: I. Jackman SC; A. Langshaw
Solicitors:
Plaintiff: R. Walker, Ryan Walker Legal
Defendant: B. Giles, Speed and Stracey Lawyers

File Number(s): 2022/92169
Publication restriction: No.

Judgment

The Court has been asked to decide a separate question under Uniform Civil Procedure Rule 2005, r 28.2 (“UCPR”) in the Equity duty list. The question is whether an order of the Court made against the NSW Trustee and Guardian (“TAG”) under the NSW Trustee and Guardian Act 1987, Division 5 (“the TAG Act”) for the maintenance of a wife out of the estate of a person under management continues to bind the estate of that person after their death. Here the widow claims the existing order continues to bind the estate. But a son by prior marriage contends that it does not. The question arises from the following facts.

Mr Colin Bell – His Family and His Estate.

Mr Colin Bell died on 14 March 2022. He was survived by his wife Ms Donna-May Bolinger (Ms Bolinger) and three children by several previous marriages. At the time of his death, he was separated from his wife in circumstances that are contested.
The deceased executed a form of will dated 18 May 2015 (“the 2015 Will”) and a later codicil on 3 November 2020 (“the 2020 Codicil”). The 2015 Will appointed the deceased’s son, Mr Ned Bell as his executor. Mr Bell has given notice that he intends to apply for a grant of probate of the 2015 Will and the 2020 Codicil. Under the 2015 Will, Ms Bolinger was to receive a house located in…

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.

Continue reading Bollinger v Bell

Details

AGLC: Bollinger v Bell [2022] NSWSC 486
Case: [2022] NSWSC 486
Decision Date: 26 April 2022

CaseChat Overview and Summary

Bollinger v Bell is a case in which the widow of a deceased person, Bollinger, applies for the continuation of orders that were made against the living estate of a "managed person", when he was subject to management orders in protective proceedings brought under the Trustee and Guardian Act 1987. The widow, Bell, seeks to continue the orders following the death of Bollinger. The primary legal issue for the court was to determine whether the existing orders made in the protective proceedings bind the estate of the deceased after his death and the effect of section 93 of the Act. The court was also required to consider what directions should be made in respect of other contested issues concerning the future management of Bollinger's estate, including the appointment of a special administrator.

The court considered the statutory framework provided by the Trustee and Guardian Act, particularly section 93, which provides that an order made in protective proceedings binds the estate of the deceased. The court examined the legislative intent behind section 93 and found that it aimed to ensure continuity in the management of the estate of a deceased person who was previously subject to protective proceedings. The court concluded that the existing orders should bind the estate of the deceased, as intended by the legislature. The court also considered the need for directions concerning the appointment of a special administrator and other contested issues related to the management of the deceased’s estate.

In light of the above, the court ruled that the existing orders made in the protective proceedings continue to bind the estate of the deceased. The court appointed a special administrator to manage the estate and provided directions for the resolution of other contested issues. The court emphasised the importance of ensuring that the estate is managed in accordance with the legislative intent and the needs of the deceased.

The court made orders that the existing management orders continue to bind the estate of the deceased and appointed a special administrator. The court also provided directions for the resolution of other contested issues concerning the future management of the deceased’s estate. The court’s decision ensures that the estate is managed in accordance with the legislative intent and the needs of the deceased.

Orders