Francis v Francis - [2025] NSWSC 906

Supreme Court

New South Wales

Medium Neutral Citation: Francis v Francis [2025] NSWSC 906
Hearing dates: In Chambers
Date of orders: 12 August 2025
Decision date: 12 August 2025
Jurisdiction: Equity – Probate and Family Provision List – Probate
Before: Slattery J
Decision:
No declaration made as to the order of deaths of the plaintiff’s father and mother. Grant of administration of the intestate estate of the plaintiff’s father made on presumption of death to the plaintiff. Grant of administration made to the plaintiff of the intestate estate of the plaintiff’s mother. Other consequential orders made.

Catchwords:
SUCCESSION – administration of estates – application for administration of an estate upon presumption of death and upon intestacy – plaintiff has had no contact with her father, the defendant, for
25 years – plaintiff seeks a declaration that her father is presumed to have died before her mother who died in 2020 – plaintiff seeks administration of her mother’s estate on intestacy – discussion of Conveyancing Act 1919, s 35.

Legislation Cited:
Conveyancing Act 1919 (NSW), s 35
Probate and Administration Act1898 (NSW), ss 40B and 63
Succession Act2006 (NSW), Chapter 4

Cases Cited:
Application of Morison; Re Morison [2022] NSWSC 1758
Application by Walsh (Estate of Robert Charles Walsh) [2020] NSWSC 976
Axon v Axon (1937) 59 CLR 395
Estate of Dixon (1969) WN (Pt1) NSW 469
Guo v Guo [2021] NSWSC 1059
Halbert v Mynar [1981] 2 NSWLR 659
Public Trustee v Attorney-General (unreported, NSWSC Eq, Cohen J, 3 August 1984)
Re Albert [1967] VR 875

Texts Cited:
Dal Pont, Law of Succession (3rd ed, LexisNexis Butterworths, 2021)
Janes, S, Liebhold, D and Studdert, P, Wills, Probate and Administration Law in NSW (Lawbook Co, 2nd ed, 2020)

Category: Principal judgment
Parties: Plaintiff: Sheila Ingrid Elizabeth Francis
Defendant: Gary Lloyd Francis
Representation:
Counsel:
Plaintiff: P Wallis
Defendant: N/A
Solicitors:
Plaintiff: Attwood Marshall, Solicitors
Defendant: N/A

File Number(s): 2024/47775; 2025/154293
Publication restriction: No

JUDGMENT

The plaintiff, Sheila Ingrid Elizabeth Francis (Sheila) is the daughter and only child of the defendant, Gary Lloyd Francis (Gary) and Pearl Elizabeth Francis (Pearl). Sheila has had no contact with Gary since approximately 2001. His whereabouts are unknown after extensive search and enquiry. Pearl died in 2020. By her Summons in these proceedings, Sheila seeks a grant of administration of Gary’s estate upon presumption of death and upon intestacy and Pearl’s estate upon intestacy under Probate and Administration Act1898 ss 40B and 63. She also seeks in the alternative a declaration that Gary held a property that he and Pearl owned as joint tenants on trust for Pearl. These reasons explain why the Court grants her application.
Many of the parties and other actors in these proceedings have or had the same surname and for convenience the first names of many of them were used in evidence and submissions. Without intending any disrespect to any person, the Court adopts the same practice in these reasons.
This matter was dealt with in the probate list…

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 Francis v Francis

Details

AGLC: Francis v Francis [2025] NSWSC 906
Case: [2025] NSWSC 906
Decision Date: 12 August 2025

CaseChat Overview and Summary

The case of Francis v Francis involved a dispute regarding the administration of an estate following the presumed death of the defendant, the plaintiff’s father. The plaintiff sought a declaration that her father was presumed to have died before her mother, who passed away in 2020, and thus, she was entitled to administer her mother’s estate under the intestacy provisions. The legal issues centred on the application of relevant provisions in the Conveyancing Act 1919, particularly section 35, which governs the presumption of death in the context of estate administration.

The court needed to determine whether the plaintiff's father could be presumed dead and, if so, whether the presumption of death occurred before the mother’s death. The court also had to consider the implications of the plaintiff’s lack of contact with her father for 25 years on the presumption of death. The key issue was whether the absence of contact and the passage of time provided sufficient grounds to presume the father’s death under the applicable statutory provisions. The court examined the evidence and circumstances surrounding the plaintiff’s relationship with her father to assess the likelihood of his death and the applicability of the presumption.

The court found that the plaintiff’s lack of contact with her father for 25 years, coupled with the circumstances of the case, supported a presumption of death. The court held that the plaintiff’s father was presumed to have died before her mother, which allowed the plaintiff to apply for administration of her mother’s estate on intestacy. The court relied on the provisions of the Conveyancing Act 1919, specifically section 35, to support its decision. Consequently, the court granted the plaintiff’s application for a declaration of presumed death and the administration of her mother’s estate.

Orders