Re Curran - [2010] VSC 455

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

PROBATE JURISDICTION

S PRB 2010 007128

IN THE MATTER of an application by Angela Philomel Pearse for Letters of Administration in the Estate of Mhairi Jessica Beatrice Curran pursuant to sections 7 and 8 of the Administration and Probate Act 1958

ANGELA PHILOMEL PEARSE Plaintiff

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JUDGE:	FERGUSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 September 2010
DATE OF JUDGMENT:	7 October 2010
CASE MAY BE CITED AS:	Re Curran
MEDIUM NEUTRAL CITATION:	[2010] VSC 455

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ADMINISTRATION AND PROBATE – Letters of administration - presumption of death – scope of grant – ss 6, 7(1), 8, 57 Administration and Probate Act 1958 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Phillips	David Davis & Associates

HER HONOUR:

Cleve Curran had two daughters, Mhairi Curran (born in South Australia in 1945) and Angela Pearse (nee Curran) (born in 1946 in South Australia)[1]. Mr Curran died in 1962 leaving the bulk of his estate, which spread across Malaysia, Western Australia and Victoria, to his two daughters. Ms Pearse obtained Letters of Administration to collect in the balance of his estate and to distribute it (de bonis non) in Malaysia, Western Australia and Victoria. Mr Curran was entitled to a 6/1000’s share in the Estate of the Late George Adams or what is often known as the Tattersalls Trust. Upon his death, his interest in the Tattersalls Trust devolved by operation of the trust deed to his two daughters as to one half each.
[1]A simplified chart of the Curran family is in the Annexure to this judgment.

Ms Curran married Gunnar Neimanis in England. Together they had two children, Jacqueline Neimanis (now Bellchambers, born in the United Kingdom in 1966) and Nicholas Neimanis (born in the United Kingdom in 1967). In 1969, Ms Curran separated from her husband and children. Although they remained apart, Ms Curran and Mr Neimanis never divorced. Ms Curran has not been in contact with her family for over 20 years.

Ms Pearse has tried unsuccessfully to locate her sister so that she could finalise her father’s estate by distributing Ms Curran’s share to her. The only part of Mr Curran’s estate which has not been administered is Ms Curran’s interest. That interest has been converted into funds part of which have been paid into this Court (approximately $230,000), part into the Supreme Court of Western Australia (approximately $210,000) and part held by a Malaysian firm of solicitors in an account with Citibank (approximately $113,000). In addition to her interest in the estate of her father, Ms Curran is known to have approximately 1.9 million shares in Tatts Group Limited (as a result of the restructure of what was the Tattersalls Trust). Those shares are valued at approximately $4.5m. There are also unremitted trust distributions and share dividends estimated at approximately $2m. The total of Ms Curran’s known assets is therefore approximately $7.1m, of which Victorian assets total approximately $6.7m. Ms Pearse…

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 Re Curran

Details

AGLC: Re Curran [2010] VSC 455
Case: [2010] VSC 455
Decision Date: 7 October 2010

CaseChat Overview and Summary

In the matter of the estate of a deceased person, the Supreme Court of Victoria was asked to determine whether letters of administration should be granted to a particular individual. The dispute arose following the disappearance of a person, and the court was required to decide whether this person could be presumed to be dead for the purposes of granting letters of administration to another. The case involved the application of various sections of the Administration and Probate Act 1958 (Vic), including sections 6, 7(1), 8, and 57.

The primary legal issue the court needed to resolve was whether the disappearance of the individual in question was sufficient to presume death under the relevant statute, thereby allowing letters of administration to be granted to another person. The court examined the circumstances of the disappearance, the length of time elapsed, and the evidence presented to determine if there was sufficient proof to presume death. The court also considered the scope of the grant of letters of administration, including whether the grant should be limited to the administration of the estate or extend to other powers such as selling property.

The court concluded that there was a sufficient basis to presume the death of the missing individual. The disappearance, coupled with the length of time that had passed and the lack of any evidence of survival, provided a reasonable ground to presume death. The court found that the applicant had met the statutory criteria for presuming death and was therefore entitled to letters of administration. The court also determined that the grant of letters of administration should include the power to sell property, as this was necessary for the effective administration of the estate.

The court ordered that letters of administration with the will annexed be granted to the applicant, and that the grant should include the power to sell property. The court's decision was based on a thorough examination of the evidence and the application of the relevant statutory provisions. The court's ruling provided clarity on the circumstances under which a presumption of death can be made for the purposes of granting letters of administration in Victoria.

Orders