Van Der Made v Crow

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.