NSW Trustee and Guardian v State of New South Wales

In the Supreme Court of New South Wales, the NSW Trustee and Guardian, as the administrator of the estate of a deceased individual, was involved in a dispute with the State of New South Wales concerning the succession rights of the deceased. The deceased's son and mother were discovered deceased at their residence some weeks after their deaths. The primary issue before the court was to determine whether there was sufficient uncertainty regarding the order of their deaths to invoke section 35 of the Conveyancing Act 1919 (NSW), which governs the distribution of an estate where two individuals are found dead and the order of their deaths cannot be determined.

The legal issue at hand was whether the court could apply section 35 of the Conveyancing Act 1919 (NSW) in circumstances where there was a lack of clear evidence to ascertain the exact order of the deaths, and if so, what degree of proof was required. The court needed to determine whether the section was applicable only if there was no evidence from which the court could be satisfied as to the order of deaths or if it could be invoked even when some evidence was available.

In its decision, the court held that section 35 of the Conveyancing Act 1919 (NSW) is not applicable if there is evidence available from which the court can be satisfied as to the order of deaths. The court found that the evidence in this case was sufficient to determine that the mother predeceased the son. Consequently, the son's estate passed to the mother's estate, and the mother's estate passed to the son's estate. The court ruled that the balance of probabilities was sufficient to establish the order of deaths, and thus, section 35 did not apply. The court was satisfied that the evidence provided a clear indication of the order of the deaths, which was necessary to resolve the succession dispute.