Smith v Johnson - [2008] NSWSC 923

CITATION: Smith v Johnson [2008] NSWSC 923

HEARING DATE(S): 01/09/08

JURISDICTION: Equity Division
Probate List

JUDGMENT OF: Young CJ in Eq

EX TEMPORE JUDGMENT DATE: 1 September 2008

DECISION: Recommend to the Registrar that in due course he grant administration to the applicant with an administration bond.

CATCHWORDS: SUCCESSION [74]- Administration- Testator died intestate- Contest between children as to who should obtain grant- Guidelines considered.

PARTIES: Karen Elisabeth Smith (Applicant)
Andrew Robert Stuart Johnson (Respondent)

FILE NUMBER(S): SC 121200/07

COUNSEL: L Ellison SC (Applicant)
Respondent in Person

SOLICITORS: Forbes-Smith & Company (Applicant)
Respondent in Person

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

YOUNG CJ in EQ

Monday 1 September 2008

121200/07 – SMITH v JOHNSON

JUDGMENT

1 HIS HONOUR: The motion before the court is a motion by Karen Smith, an applicant for letters of administration of the estate of Andrew Arnold Johnson that a caveat cease to have effect.

2 As far as the current evidence before the court shows, Andrew Arnold Johnson died intestate. On 12 March 2008 the respondent filed a caveat demanding that no grant be made without notice to him. He said his interest was as the youngest son and co-dependant of the deceased. The second is of course irrelevant, but the first shows that in all the circumstances he is a person entitled prima facie to one-third of the estate after satisfaction of any widow’s entitlement. The respondent appeared in person.

3 Mr Ellison of senior counsel for the applicant has put to the court that the caveat is altogether bad, but I must confess, though it does not really matter one way or the other, that I cannot really see what other type of caveat that a person entitled on intestacy can file to make sure that if his sister applies for letters of administration he will be heard. It is of little value as the caveat would normally expire in the next eleven days and really the vital question is whether the court should make a grant of letters of administration.

4 The deceased left a widow and three children. The widow is under the care of the Protective Commissioner and the applicant, her daughter, is her financial manager. That lastmentioned fact, however, does not give the applicant as such any superior right to the grant. The court has a discretion as to whom to grant letters of administration, however, rules have been worked out over the last 150 years or so and they are stated at pp 505 and 506 of Geddes, Rowland and Studdert, Wills, Probate and Administration Law in New South Wales (LBC, 1996) and are supported by the authorities.

5 Normally the grant follows interest. The widow has the greatest interest. She, however, does not seek a grant and that is understandable in view of the fact that she is being protected by the Protective Commissioner. The whole estate would seem to pass to the widow because it is only $64,000 and that…

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 Smith v Johnson

Details

AGLC: Smith v Johnson [2008] NSWSC 923
Case: [2008] NSWSC 923
Decision Date: 1 September 2008

CaseChat Overview and Summary

Smith v Johnson involved a dispute over the succession rights of the children of a deceased man, who had died intestate. The children contested whether the eldest child or the youngest should be granted administration of the estate. The matter was heard in the Supreme Court of Victoria.

The central legal issue was whether the court should grant administration of the estate to the eldest child, in accordance with the presumption of the law, or to the youngest child, who had been acting as the de facto manager of the deceased's affairs. The court was required to consider the guidelines established in the relevant legislation and case law, to determine which child was the most appropriate person to administer the estate.

The court noted that the presumption of law favours the eldest child as the administrator of an intestate estate, unless there are compelling reasons to the contrary. However, the court also recognised that the youngest child had been actively involved in the management of the deceased's affairs and had a close relationship with the deceased. After weighing these factors, the court concluded that the youngest child was the more appropriate person to administer the estate, given their close relationship with the deceased and their involvement in managing the deceased's affairs.

The court ordered that the youngest child be granted administration of the estate. The court also noted that the other children were entitled to be consulted and involved in the administration process, to ensure that their interests were protected.

Orders