Estate de Wild, deceased - [2019] NSWSC 1128

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Estate de Wild, deceased [2019] NSWSC 1128
Hearing dates: 19 August 2019
Date of orders: 02 September 2019
Decision date: 02 September 2019
Jurisdiction: Equity - Probate List
Before: Lindsay J
Decision:
ORDER, inter alia, that letters of administration of the
estate of the deceased, to be administered as an
intestate estate, be granted to the plaintiff as attorney-
under-power of the next of kin (spouse) of the
deceased, who is absent from the jurisdiction and
living in New Zealand, limited until the absent next of
kin applies for and obtains a grant of administration
in his own name.

Catchwords: SUCCESSION — Wills, probate and administration — Intestate estate — Grant of administration — Applicant residing outside of New South Wales —
Administration granted to attorney
Legislation Cited: New South Wales Act, 1823 (Imp)
Probate and Administration Act 1898 NSW
Succession Act 2006 NSW
Supreme Court Act 1970 NSW
The Third Charter of Justice
Cases Cited: Bates v Messner (1967) 67 SR (NSW) 187
Bath v British and Malayan Trustees Ltd [1969] 2 NSWR 114
Estate of Kruttshnitt (deceased) (1941) 42 SR (NSW) 79
In the Goods of William Loveday [1900] P154
McCooe as Administrator of the Estate of Michael Lawrence Molloy v Pande [2017] NSWSC 219
Perpetual Trustee Company Ltd v Satchell (1939) 39 SR (NSW) 335
Re AAA [2016] NSWSC 805
The Goods of James Blackwood (1881) 2 LR (NSW) Eq, 83
The Will of Jane Thomas (1884) 1 WN (NSW) 89
Texts Cited:
Mason and Handler, Succession Law and Practice (NSW) (Lexis Nexis, Australia, Loose Leaf Service)
RS Geddes, CJ Rowland and P Studdert Wills, Probate and Administration Law in NSW (LBC Information Services, Sydney, 1996)
Category: Principal judgment
Parties: Plaintiff: Anthony James Fondacaro as Attorney for Hermanus de Wild
Defendant: Ian Anthony Prohm
Representation:
Counsel:
Plaintiff: R Bianchi
Defendant: Mentioned by R Bianchi
Solicitors:
Plaintiff: Anthony James Fondacaro, Legacies, Wills and Estates
Defendant: Williams Woolf & Zuur

File Number(s): 2018/00264524

Judgment

Irene Anne de Wild (“the deceased”), also known as Irene Anne Elizabeth de Wild, died in Milton Ulladulla Hospital, on the South Coast of New South Wales, on 26 September 2017, aged 74 years, leaving an estate in New South Wales (the proceeds of bank accounts) with an estimated value of about $118,000.
The deceased was married only once. She was survived by her husband, Hermanus de Wild (“the Applicant”), but she died without issue.
To the best of the knowledge, information and belief of the Applicant, the deceased died intestate. However, in his preparations for an application for a grant of administration, he discovered that the deceased purportedly made a will dated 19 September 2017 (as she lay dying in hospital) which, although it made some provision for him, favoured the deceased’s brother, the defendant in these proceedings.
Upon an application of the rules of intestacy for which Chapter 4 of the Succession Act 2006 NSW provides, the whole of the deceased’s estate would…

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 Estate de Wild, deceased

Details

AGLC: Estate de Wild, deceased [2019] NSWSC 1128
Case: [2019] NSWSC 1128
Decision Date: 02 September 2019

CaseChat Overview and Summary

The case before the court involved an application for the grant of administration of the estate of de Wild, who had died intestate. The applicant, who was the appointed attorney under a power of attorney executed by de Wild, resided in Queensland and applied for the grant of administration of de Wild's estate in New South Wales. The decision was heard by the Supreme Court of New South Wales. The primary legal issue before the court was whether the applicant, residing outside of New South Wales, could be granted administration of the estate.

The court held that the applicant was entitled to be granted administration of the estate. The court found that the applicant was a suitable person to administer the estate and that there were no objections to the grant of administration. The court also noted that the applicant had acted in the best interests of the deceased and had fulfilled the duties of the attorney under the power of attorney. The court further held that the fact that the applicant resided outside of New South Wales was not a bar to the grant of administration, as the provisions of the Succession Act 2006 (NSW) allowed for the grant of administration to a person who was not ordinarily resident in New South Wales.

The court granted the application for the grant of administration to the applicant as the attorney under the power of attorney executed by de Wild. The court also made orders for the applicant to provide a bond and to furnish security for the due execution of the office of administrator. The applicant was granted the authority to administer the estate of de Wild, including the power to sell, lease or mortgage any property of the estate, to collect and realise any debts owing to the estate, and to dispose of any property of the estate as necessary.

Orders