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

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

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.

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Details

Case: [2024] NSWSC 725
Decision Date: 11 June 2024

CaseChat Overview and Summary

The estate of a deceased man, Smith, was the subject of a legal dispute. Smith died intestate, leaving no will, and the plaintiff, his niece, sought to be appointed as the administrator of his estate. The Registrar had declined to grant Letters of Administration to the plaintiff on the basis that she had not established that the deceased was not in a domestic partnership immediately before his death. The plaintiff appealed this decision to the court. The court was required to determine whether the plaintiff had established that the deceased was not in a domestic partnership at the time of his death. The court considered the evidence provided by the plaintiff, including affidavits and enquiries made to determine whether the deceased was in such a relationship, and found that no such person had come forward and there was no record of any registration of a de facto relationship. The court was satisfied that there was no such relationship at the date of death and granted the plaintiff's application for Letters of Administration. This decision highlights the importance of establishing the existence or non-existence of a domestic partnership in cases of intestate succession.

Orders