Public Trustee v Solah - [1999] NSWSC 660

CITATION: Public Trustee v Solah & 6 Ors [1999] NSWSC 660

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 4635/97

HEARING DATE(S): 15/06/99

JUDGMENT DATE:
2 July 1999

PARTIES :

Public Trustee - Estate of Francis Solah v Donald Souglas Solah & 6 Others

JUDGMENT OF: Master Macready at 1

COUNSEL : Mr B. Townsend for the plaintiff
Mr J. Wilson for the 1st defendant
Mr A.L. Hill for the 2 and 3 defendants
Mr P. Blackburn-Hart for the 4,5,6 & 7 defendants

SOLICITORS:
P.J. Whitehead for the plaintiff
Devitt Williamson Isabella, Dapto for the 2 and 3 defendants
Lane & O'Rourke for the 4, 5, 6 & 7 defendants

CATCHWORDS: Succession. Next of kin enquiry. Proper approach to such an enquiry. Need for claimants to prove their claims. Walsh v Weigall (1887) 13 VLR 449 at 453 applied.; Presumption in s 9 and s 10 considered.

DECISION: Para 56

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

Friday 2 July 1999

4635/97 PUBLIC TRUSTEE v DOUGLAS SOLAH AND OTHERS
JUDGMENT

1    MASTER: This is the hearing of an enquiry into the identity of the next of kin of Francis Solah (the deceased) late of Mittagong in the State of New South Wales retired market gardener. The deceased died on the 27 November 1989 at the age of 85 years. On 19 January 1929 the deceased married a Doris Graham. He and his wife appear on the evidence to have cohabited for a short period of time before she left him. She has not been located. The evidence proves that the deceased had no defacto wife and no issue. His parents, his brothers and sisters predeceased him.
2    In the event that the deceased’s wife is not alive the deceased’s estate is held in statutory trust for the brothers and sisters of the whole blood. The deceased’s mother, Sophia Solah (herein called Sophia), had ten children. The deceased was the second youngest and was born during the currency of her marriage to the deceased’s father, Norman Kallil Solah (herein called “Kallil”). There were two other children born during the currency of that marriage, George Solah who is the father of the second and third defendants and John Michael Solah. Of the seven children born prior to the deceased’s mother’s marriage to Kallil the first six were registered as the children of a marriage to a Henry Brookfield. No registration of this marriage has been uncovered but these six children could only be brothers and sisters of the half blood. The seventh child born prior to the marriage to Kallil was named “Norman”. His birth was registered under the surnames Brookfield and Drummond (his mother’s maiden name). That registration shows no details of his father. Norman was the father of the first defendant, Donald Douglas Solah and the persons represented by him. Their claim is that Kallil was Norman’s father which would make Norman a brother to the deceased of the whole blood.
3    The deceased’s younger brother John…

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 Public Trustee v Solah

Details

AGLC: Public Trustee v Solah [1999] NSWSC 660
Case: [1999] NSWSC 660
Decision Date: 2 July 1999

CaseChat Overview and Summary

In the case of Public Trustee v Solah, the dispute involved the interpretation of succession laws concerning the identification of next of kin. The matter was heard in the Supreme Court of Victoria. The core issue was to determine the appropriate legal approach in ascertaining next of kin for succession purposes, particularly in the absence of statutory guidance. The court was tasked with deciding whether the traditional approach, which involves the burden of proof being on the claimants to establish their familial relationship, should be followed or if the presumptions in sections 9 and 10 of the relevant statute should be applied.

The court examined the legal principles surrounding next of kin determinations, referencing the established case of Walsh v Weigall (1887) 13 VLR 449. The court reaffirmed the principle that the burden of proof lies on the claimants to demonstrate their claim to next of kin status. It considered the role of statutory presumptions, such as those outlined in sections 9 and 10, and assessed whether these presumptions could alter the burden of proof or provide a basis for the court to make a determination without direct evidence from the claimants. The court concluded that the traditional approach, requiring claimants to prove their relationship, remains applicable, and statutory presumptions do not shift this burden.

In light of the reasoning provided, the court held that the traditional approach must be followed, where the onus is on the claimants to provide sufficient evidence to establish their next of kin status. The presumptions in sections 9 and 10 were not deemed to alter this requirement. The final orders of the court would be based on this determination, with the burden of proof remaining with the claimants to substantiate their claims to next of kin status.

Orders