The Estate of Smith

[2024] NSWSC 725

Supreme Court

New South Wales

Medium Neutral Citation:

The Estate of Smith [2024] NSWSC 725

Hearing dates:

11 June 2024

Date of orders:

11 June 2024

Decision date:

11 June 2024

Jurisdiction:

Equity - Succession & Probate List - Probate

Before:

Hammerschlag CJ in Eq

Decision:

See [15]

Catchwords:

SUCCESSION – Application to review decision of a Registrar not to grant Letters of Administration to the Plaintiff – A niece of the Deceased who died intestate – Registrar declined on the basis that the Plaintiff had not established that the Deceased was not in a domestic partnership immediately before his death – Where 18 months has now passed since the death of the Deceased, affidavit evidence establishes enquiries made to find out whether the Deceased was in such relationship – No such person has come forward – No record of any registration of any de facto relationship – HELD – Court satisfied that there was no such relationship at the date of death – Order for the grant of Letters of Administration

Legislation Cited:

Succession Act2006 (NSW)

Supreme Court Rules 1970 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Lachlan AB Pty Ltd v Brisull Investments (Forbes) Pty Ltd [2024] NSWSC 133

Re Estate Schutt [2023] NSWSC 1159

Category:

Principal judgment

Parties:

Cheryl Patricia Gladys Tudor (Applicant)

Representation:

Counsel:
BJ Dean (Plaintiff)

Solicitors:
McLachlan Thorpe Partners (Plaintiff)

File Number(s):

2023/00050209

Publication restriction:

Nil

Ex Tempore JUDGMENT

1. This is an application pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 49.20 to review a ruling by the Registrar of the Court not to grant Letters of Administration to the Plaintiff in respect of the Estate of Patrick James Smith (the Deceased) who died intestate on 30 October 2022, aged 56, leaving property in the Estate. The approximate value of the Estate is $1.6 million.

2. The parents and siblings of the Deceased predeceased him and he had no children of his own.

3. The Deceased is survived by 13 nieces and nephews, including the Plaintiff, Cheryl Patricia Gladys Tudor (Cheryl, no disrespect intended). If the Deceased died leaving a de facto spouse, that is, a party with whom the Deceased was in a domestic partnership immediately before his death, that person would inherit the whole of the Estate by virtue of s 104 of the Succession Act2006 (NSW) (the Act). [1] If there was no de facto when he died, the nieces and nephews would take the Estate in equal shares by virtue of ss 129(1) and 129(3)(b) of the Act. [2]

   1. Succession Act 2006 (NSW) s 104 provides that a spouse of an intestate is a person – (a) who was married to the intestate immediately before the intestate’s death, or (b) who was a party to a domestic partnership with the intestate immediately before the intestate’s death.

   2. Succession Act 2006 (NSW) ss 129(1) and 129(3)(b) provide that the brothers and sisters of an intestate are entitled to the whole of the intestate estate if the intestate leaves no spouse, issue or parent, and if the deceased’s brother and sister predecease the intestate their presumptive share is to be divided between the brother or sister’s children.

4. By Summons issued on 4 October 2023, Cheryl sought grant to her Letters of Administration. Each of the beneficiaries consented to the application. The Registrar raised requisitions on the subject of whether there had been a de facto spouse and was unpersuaded that it had been established that there was none.

5. I observe that at the time application for Letters of Administration was made, only three and a half months had passed since the death of the Deceased, to allow any claimed de facto to come forward, whereas now, some 18 months have passed. Although, on an application of this type, demonstration of error on the part of the Registrar is not required: see Re Estate Schutt [2023] NSWSC 1159 (Lindsay J); Lachlan AB Pty Ltd v Brisull Investments (Forbes) Pty Ltd [2024] NSWSC 133, [5] (Peden J), it is apt to record that I do not think that the Registrar was in error when she made her decision.

6. The application is brought out of time, but the Court may extend it; see UCPR r 49.20(2) and (4). [3] In the circumstances of this case, including the fact that the beneficiaries consent, and, as is set out below, no one claiming to be a de facto of the Deceased has come forward, there is no difficulty in extending the time limit and I will do so.

   3. UCPR r. 49.20 provides that an application for review of a decision of a registrar must be filed within 28 days after the date of the decision but that the Court may extend the time for review at any time.

7. I was provided with written submissions dated 10 May 2024 by Counsel for Cheryl which will be marked MFI-1 and will be retained with the papers.

8. Where an application for Letters of Administration is not made by a spouse or de facto partner of the Deceased, the affidavit in support must show that the Deceased did not leave a domestic partner who would be entitled to the Estate. [4]

   4. Supreme Court Rules 1970 (NSW) pt 78 r 20(2).

9. Cheryl made two affidavits that the Deceased was not in a de facto relationship dated, respectively, 3 October 2023 and 11 March 2024. She deposed that:

1. she lived near the Deceased and saw and spoke to him regularly until the death of his mother in 2006, after which he cut himself off from his family, although she still attempted to maintain contact, but the Deceased was not very responsive;

2. from 2006, he had a serious drug and alcohol problem and psychotic episodes;

3. to her knowledge, the Deceased had been in only one long-term relationship in the mid to late 1980s;

4. the Deceased was not in a de facto relationship at the time of her death;

5. she had made enquiries with a counsellor at Mt Druitt Hospital who advised that when the Deceased was in hospital for 10 days no-one had visited him;

6. she had made enquiries of the manager of the Deceased's local club who knew him and informed her that he had not been observed to be in the company of any person whom he would describe as the Deceased's partner and conducted a check of the club's records which do not reveal any record of any such relationship; and

7. she spoke to a friend of the Deceased known as Sheepy who informed her that the Deceased did not have a wife or partner or any relationship at all.

10. Cheryl has been unable to find any other person who knew the Deceased and who was able or willing to provide an affidavit that the Deceased was not in a de facto relationship.

11. Cheryl's evidence, in conjunction with the following factors, support the conclusion that the Deceased was not in a de facto relationship at the time of his death:

1. the Deceased died 18 months ago and no person has come forward claiming to have been his de facto partner;

2. notice of intention to seek Letters of Administration was published on the New South Wales online registry on 14 February 2023;

3. a search of the Births, Deaths and Marriages Register has been undertaken and there is no record of any registration of any de facto relationship;

4. no caveat has been lodged against the application for Letters of Administration; and

5. no family provision claim has been filed by any person and any such application would now be out of time.

12. In all the circumstances, I am satisfied that the Deceased was not in a de facto relationship at the time of his death.

13. I note that I declined a request by Cheryl that this matter be dealt with in chambers. I considered that this application is more appropriately to be dealt with in open court.

14. I make orders in accordance with the short minutes of order which I have initialled, dated today's date and placed with the papers.

15. The Court made the following orders:

1. Pursuant to Uniform Civil Procedure Rules 2005 (UCPR) r 49.20(4), the time for the filing of the application for the review of the decision of the Registrar made on 12 March 2024 to reject the application for Letters of Administration filed on 4 October 2023 (the decision), be extended to 1 May 2024.

2. Pursuant to UCRP r 49.19(2), the decision be set aside.

3. Any further requirement for evidence deposing to the Deceased’s de facto status be dispensed with.

4. The application for Letters of Administration filed on 4 October 2023 be referred to the Registrar to complete the grant.

5. The costs of the application for Letters of Administration, including the costs of the present application, be paid from the Estate on an indemnity basis.

**********

Endnotes

Decision last updated: 14 June 2024