Van Der Made v Crow - [2024] NSWSC 1240

Supreme Court

New South Wales

Medium Neutral Citation: Van Der Made v Crow [2024] NSWSC 1240
Hearing dates: 27 September 2024
Date of orders: 27 September 2024
Decision date: 27 September 2024
Jurisdiction: Equity - Succession & Probate List - Family Provision
Before: Meek J
Decision:
Orders made for the plaintiff to grant access to the estate property to the defendant for the purposes stated in his notice of motion. Further ancillary orders made.

Catchwords:
SUCCESSION — Family provision — Claim by alleged de facto of the deceased — Plaintiff had lived with the deceased in the deceased’s unit for some period of time prior to his death — Plaintiff continued to live in the deceased’s unit after his death and refused to grant the defendant, the deceased’s brother and executor, access to the unit for the purposes of administering the estate by taking an inventory of estate property, recording the condition of the unit and estate property and removing any estate property about which there is no dispute as to ownership or possession (“purposes”) — In the context of being repeatedly refused access, the defendant filed a notice of motion seeking access to the unit for the purposes and for fulfilling his obligations as executor — Held that access orders should be made
SUCCESSION — Executors and administrators — Rights, powers and duties — Real property — Whether the defendant could seek access to the estate property — Discussion of sources of powers of executors to require access to estate property for the purposes of administration, including in the terms of the Will and general law
SUCCESSION — Executors and administrators —Construction of powers under Will — Whether sufficient to enable access to property — In context of resistance to access and extant court proceedings, it is appropriate for an executor to seek the imprimatur and authorisation from the Court, rather than resort to self-help remedies — It is appropriate to make formal orders directing the plaintiff occupant to permit the executor access to estate property and to authorise the executor to enter such property to enable rights of access (from the Will or otherwise) to be practically exercised
CIVIL PROCEDURE — Powers of the Court to order inspection of property — Uniform Civil Procedure Rules 2005 (NSW), r 23.8 — Given that the nature and extent of the deceased’s estate is a fundamental matter in question in family provision proceedings, the Court has power under UCPR r 23.8 to make orders for the inspection of estate property in order to enable the proper determination of that matter — Held that UCPR r 23.8 was an available and appropriate power under which to order the relief sought by the defendant on his notice of motion

Legislation Cited:
Conveyancing Act 1919 (NSW)
Evidence Act1995 (NSW)
Probate and Administration Act 1898 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Argyle Art Centre Pty Ltd v Argyle Bond & Free Stores Co Pty Ltd [1976] 1…

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 Van Der Made v Crow

Details

AGLC: Van Der Made v Crow [2024] NSWSC 1240
Case: [2024] NSWSC 1240
Decision Date: 27 September 2024

CaseChat Overview and Summary

The matter before the court involved a dispute between Van Der Made and Crow, the latter being the brother and executor of the deceased. Van Der Made, who claimed to be the deceased’s de facto partner, refused to grant Crow access to the deceased’s unit for the purposes of administering the estate. Crow sought access to the unit to take an inventory of the estate property, record the condition of the unit and estate property, and remove any property about which there was no dispute as to ownership or possession. The court was required to determine whether Crow, as the executor, could seek access to the estate property and whether sufficient authority existed to enable such access.

The court held that the executor had the authority to seek access to the estate property, drawing on both the terms of the Will and general law principles. It was appropriate for the executor to seek court authorisation rather than resort to self-help remedies, especially given the resistance to access and the ongoing court proceedings. The court also noted that the Uniform Civil Procedure Rules 2005 (NSW), rule 23.8 provided the necessary power to make orders for the inspection of estate property, which was crucial for the proper determination of the family provision claim.

The court granted the relief sought by Crow, ordering Van Der Made to permit Crow access to the deceased’s unit and authorising Crow to enter the property to exercise his rights of access. The court emphasised the importance of the executor being able to administer the estate properly and the court’s role in facilitating this process by issuing the necessary orders. The decision underscores the executor’s duty to manage the estate effectively and the court’s power to support this duty when necessary.

Orders