Estate of Terry - [2012] NSWSC 927

Supreme Court

New South Wales

Medium Neutral Citation: Estate of Terry [2012] NSWSC 927
Hearing dates: In chambers
Decision date: 14 August 2012
Jurisdiction: Equity Division - Probate List
Before: White J
Decision:
Refer to paras [14] and [15] of judgment.

Catchwords: WILLS, PROBATE AND ADMINISTRATION - letters of administration - application for letters of administration ad litem - application by brother of deceased for purposes of family provision claim on behalf of daughter of deceased - continuance of medical negligence proceedings in District Court - grant of administration to enable applications to be dealt with - Succession Act 2006 (NSW), s 91
Legislation Cited: Succession Act 2006
Law Reform (Miscellaneous Provisions) Act 1944
District Court Act 1973
Texts Cited: R S Geddes, C C Rowland & P Studdert, Wills, Probate and Administration Law in New South Wales, 1996, LBC
Category: Principal judgment
Parties: Travis Donald Terry (Plaintiff)
Representation: Counsel:
Solicitors:
Commins Hendriks (Plaintiff)

File Number(s): 2012/29446

Judgment

HIS HONOUR: This application has been referred to me by the Registrar. The deceased died on 10 October 2011 aged 35. The plaintiff is the deceased's brother. According to the plaintiff's affidavit, the deceased was married to one Darrell Johnson, but they separated and have been estranged since approximately 2001. There was one child of the relationship. The plaintiff deposes that he has full-time care of that child. The estate is a small one. The plaintiff does not know the whereabouts of Mr Johnson and is unable to contact him. He believes that the deceased did not leave a will. Pursuant to the intestacy provisions of the Succession Act 2006, Mr Johnson would be entitled to the estate.

The deceased was a plaintiff in proceedings in the District Court at Wagga Wagga in which she claimed damages for medical negligence. The plaintiff sought the grant for two purposes. First, so as to be able to continue those proceedings, and secondly, because he intends to act as the next friend of the child in relation to a family provision claim. Whether that claim is brought in the District Court or the Supreme Court will presumably depend on the extent of the estate having regard to the success or otherwise of the District Court claim seeking damages. No claim has yet been commenced.

The plaintiff filed a summons claiming an order that administration of the deceased's estate be granted to him for the purposes only of an application being made under Chapter 3 of the Succession Act 2006 on behalf of the daughter of the deceased. He seeks a grant of letters of administration ad litem of the deceased's estate for that purpose and to continue proceedings between the deceased and the Murrumbidgee Local Area Health Network filed at the District Court at Wagga Wagga.

I can assume that the cause of action against the Murrumbidgee Local Area Health Network survives the death of the deceased (Law Reform (Miscellaneous Provisions) Act 1944, s 2).

No application has been made to the District…

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: [2012] NSWSC 927
Decision Date: 14 August 2012

CaseChat Overview and Summary

In the matter of the estate of Terry, the deceased, the respondent, the brother of the deceased, applied for letters of administration ad litem to bring a family provision claim on behalf of the deceased's daughter. The application was made in the Supreme Court of New South Wales, with the deceased's estate being administered in the District Court due to ongoing medical negligence proceedings. The deceased's brother sought to bring the family provision claim in the Supreme Court to avoid the potential prejudice of the deceased's estate being compromised by the medical negligence proceedings.

The central legal issue was whether the court should grant the application for letters of administration ad litem to the deceased's brother to bring the family provision claim on behalf of the deceased's daughter. The court considered whether the grant of administration was necessary to ensure that the family provision claim could be brought and dealt with in a timely and effective manner, particularly in light of the ongoing medical negligence proceedings in the District Court. The court also needed to determine whether the grant of administration would prejudice the deceased's estate or any other interested parties.

The court found that the grant of administration was necessary to enable the family provision claim to be brought and dealt with, as the deceased's estate was being administered in the District Court due to the ongoing medical negligence proceedings. The court considered that the grant of administration would not prejudice the deceased's estate or any other interested parties, and that the deceased's brother was a suitable applicant for letters of administration ad litem. The court therefore granted the application for letters of administration ad litem to the deceased's brother, to bring the family provision claim on behalf of the deceased's daughter.

The court's final order was that letters of administration ad litem be granted to the deceased's brother, to bring the family provision claim on behalf of the deceased's daughter. The court also ordered that the letters of administration ad litem be subject to the terms and conditions set out in the court's order, including that the deceased's brother use the letters of administration ad litem solely for the purposes of bringing and dealing with the family provision claim. The court's order also provided for the ongoing administration of the deceased's estate in the District Court, to enable the medical negligence proceedings to be dealt with.

Orders