Helebrant v Perdic

[2010] VSC 580

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 1003 of 2010

MATO HELEBRANT	Plaintiff
v
DENI PERDIC	Defendant

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 December 2010
DATE OF JUDGMENT:	14 December 2010
CASE MAY BE CITED AS:	Helebrant v Perdic
MEDIUM NEUTRAL CITATION:	[2010] VSC 580

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ADMINISTRATION AND PROBATE – Intestacy – Application for declaration of paternity – Recognition of paternity – Trial on affidavits – No cross-examination of deponents – Status ofChildren Act 1974, ss 7 and 10 – Administration and Probate Act 1958, s 52.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms C.R. McOmish	Arnold Thomas & Becker
For the Defendant	Ms P. Carey	Zeljko Stojakovic

HIS HONOUR:

Introduction

1. Mate Prolosico (“the deceased”) died intestate on 29 September 2007.  Mato Helebrant, the plaintiff, claims to be the only child of the deceased.  In this proceeding, the plaintiff seeks:

(a)a declaration pursuant to s 10(1) of the Status of Children Act 1974, that the relationship of father and child existed between the plaintiff and the deceased;

(b)a declaration pursuant to s 7(1)(b) of the Status of Children Act that paternity was admitted by the deceased during his lifetime;  and

(c)an order that subject to the formal requirements of the Registrar of Probates, letters of administration of the intestate estate of the deceased be granted to the plaintiff.[1]

[1]Originally, the plaintiff also sought an order that, for the purposes of this proceeding, the defendant represent the next of kin of the deceased, other than the plaintiff.  However, this application was abandoned at hearing.

1. Deni Perdic, the defendant, is the daughter of Tonka Perdic, who died intestate on 12 April 2008.  Tonka Perdic was a niece of the deceased and, according to the defendant, “as far as [she] was aware, his closest relative living in Australia at the time of his death”.

1. The defendant opposes the orders sought by the plaintiff, and ultimately submits that, subject to any requirement of the Registrar of Probates, letters of administration should be granted to her for the purpose of administering the deceased’s estate and distributing the net funds in accordance with s 52 of the Administration and Probate Act 1958.[2]  The defendant’s position is encapsulated in paragraph 5 of her outline of submissions.[3]  Paragraph 5 provides:

“The defendant opposes the application and says that the deceased had no children.  Further or alternatively, she says that the deceased did not admit paternity.  In consequence, she says that the plaintiff has no entitlement on intestacy and the Court ought not grant letters of administration to him.”

However, counsel for the defendant agreed in her submissions that if I found a paternal relationship and that the deceased admitted paternity during his lifetime, then subject to any requirement of the Registrar of Probates, letters of administration should be granted to the plaintiff.

The Status of Children Act 1974

[2]Section 52 of the Administration and Probate Act deals with the distribution of an estate…