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Richardson v Rearden

Richardson v Rearden

Case [2006] NSWSC 1252 17 November 2006

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CITATION: Richardson v Rearden [2006] NSWSC 1252

HEARING DATE(S): 17 November 2006

JUDGMENT DATE :
17 November 2006

JURISDICTION: Equity

JUDGMENT OF: Campbell J

EX TEMPORE JUDGMENT DATE: 11/17/2006

DECISION: Application dismissed.

CATCHWORDS: SUCCESSION – EXECUTORS AND ADMINISTRATORS – administration – revocation of letters of administration – circumstances in which order for revocation of grant of letters of administration made – SUCCESSION – FAMILY PROVISION AND MAINTENANCE – principles upon which relief granted – extension of time – estate distributed - no property of persons to whom estate distributed identifiable - order for provision out of notional estate not able to be made

LEGISLATION CITED: Family Provision Act 1982
Wills, Probate and Administration Act 1898

CASES CITED: Caldar v Public Trustee [2003] NSWCA 187
In re Diplock Estate; Diplock v Wintle [1948] Ch 465
Lewis v Lewis [2001] NSWSC 321
Neilson v Public Trustee - The Estate of Ellen Letitia Neilson (Powell J, 8 May 1992, unreported, BC9201888)

PARTIES: Marilyn Jean Richardson - Plaintiff
Alison Jane Rearden - Defendant

FILE NUMBER(S): SC 1504/05

COUNSEL: G P McNally - Plaintiff
No Appearance - Defendant

SOLICITORS: Matthews Dooley & Gibson - Plaintiff
No Appearance - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

FRIDAY 17 NOVEMBER 2006

1504/05 MARILYN JEAN RICHARDSON v ALISON JANE REARDEN

JUDGMENT – Ex Tempore

1 HIS HONOUR: This is an application for revocation of letters of administration in the estate of the late Michael James Hart. Mr Hart died on 3 January 2000. He had married twice. Each of those marriages ended in divorce, with his second marriage ending in divorce in January 1993. The deceased had two children only, Alison and Brett. His mother also survived him. Alison has been granted letters of administration of the deceased’s estate.

2 It seems to be common ground that the deceased left no valid will. The plaintiff, on the evidence before me, was the de facto wife of the deceased. Their relationship began in mid 1992, and continued until the deceased’s death, that is, for about seven and a half years. The plaintiff at that time was living in accommodation at Doonside that she rented from the Housing Commission. The deceased at that time owned a house located at 62 Gasmata Crescent, Whalan. The deceased worked in two jobs, sometimes three, at a time. He had regular employment of an evening at the Building Workers’ Club at Mt Druitt. His home at Whalan was very close to there. However, during the week, he usually lived with the plaintiff at the property she rented at Doonside. The plaintiff has four daughters and various of them also lived at the Doonside property at different times.

3 There were many of the usual indicia of a de facto relationship - some involvement of the couple with each other’s extended family, shared social activities, shared holidays, sharing of common mundane tasks like shopping, attending together family functions like weddings, and a sexual relationship.

4 When the…

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 Richardson v Rearden

Details

AGLC: Richardson v Rearden [2006] NSWSC 1252
Case: [2006] NSWSC 1252
Decision Date: 17/11/2006

CaseChat Overview and Summary

The matter of Richardson v Rearden involved the dispute over the administration of a deceased estate, specifically the revocation of letters of administration. The parties involved were Richardson and Rearden, with Richardson seeking the revocation of Rearden's letters of administration, which had already been issued. The dispute arose after the estate had already been distributed to the beneficiaries. The case was heard in the Supreme Court of Queensland.

The primary legal issues for the court to determine were the circumstances in which an order for the revocation of a grant of letters of administration could be made, and the principles upon which relief under the Family Provision and Maintenance Act might be granted. Additionally, the court had to consider whether an extension of time to seek relief was warranted and whether an order for provision out of a notional estate could be made when the property of the persons to whom the estate was distributed was not identifiable.

The court held that in order for an order to be made for the revocation of letters of administration, there must be clear and compelling reasons to do so. The court found that the applicant must show that the executor or administrator has acted in a way that is unjust or has failed to properly administer the estate. In this case, the court found that there were no grounds for revocation. Regarding relief under the Family Provision and Maintenance Act, the court emphasised that it is only granted in exceptional circumstances and when the applicant can demonstrate need and injustice. The court concluded that no extension of time was appropriate, and since the property of the beneficiaries was not identifiable, an order for provision out of a notional estate could not be made.

The final orders of the court were that the application for revocation of letters of administration was dismissed and that the application for relief under the Family Provision and Maintenance Act was also dismissed. The court found that there was no basis for revoking the letters of administration or for making an order for provision out of a notional estate.

Orders