Re Kilby & Ors [2016] NSWSC 1433

Re Kilby & Ors [2016] NSWSC 1433

Because Ronald Caldwell died before the deceased's estate was fully administered, no executor or administrator of Ronald Caldwell's estate could be identified after reasonable searches, and executorial duties remained to transfer or realise the Caringbah property under the will, the chain of representation was broken and the Court's jurisdiction to grant administration de bonis non was enlivened. The three plaintiffs accounted for the relevant beneficial interests and were suitable persons to be appointed administrators, with their indemnity costs payable from the estate.

Jurisdiction
Australia
Judgment Date
07 October 2016
Procedural Posture
Application for Administration De Bonis Non of an Estate / Hearing of Application
Outcome
Administration de bonis non of the estate of the late Stanley Henry Kilby granted to the plaintiffs. The plaintiffs' costs of the application ordered to be paid out of the estate on the indemnity basis.
Legal Topics
['administration De Bonis Non' 'executor of Executor and Chain of Representation' 'appointment of Administrators' 'unadministered Estate' 'vesting of Estate Property' 'estate Costs']
['wills, Probate and Administration' 'succession Law' 'equity'] ['administration De Bonis Non' 'executor of Executor and Chain of Representation' 'appointment of Administrators' 'unadministered Estate' 'vesting of Estate Property' 'estate Costs']

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Procedural Posture

Application for Administration De Bonis Non of an Estate / Hearing of Application

Legal Issues

  1. 1 ['Whether the plaintiffs or another suitable person should be appointed as administrators of the estate of the late Stanley Henry Kilby in place of Ronald Caldwell.' "Whether the chain of representation was broken because Ronald Caldwell's executor or administrator could not be found." 'Whether there remained executorial duties to be performed in relation to the Caringbah property.' "Whether the plaintiffs' costs should be paid out of the estate on the indemnity basis."]

Ratio Decidendi

Because Ronald Caldwell died before the deceased's estate was fully administered, no executor or administrator of Ronald Caldwell's estate could be identified after reasonable searches, and executorial duties remained to transfer or realise the Caringbah property under the will, the chain of representation was broken and the Court's jurisdiction to grant administration de bonis non was enlivened. The three plaintiffs accounted for the relevant beneficial interests and were suitable persons to be appointed administrators, with their indemnity costs payable from the estate.

Court Disposition

Administration de bonis non of the estate of the late Stanley Henry Kilby granted to the plaintiffs. The plaintiffs' costs of the application ordered to be paid out of the estate on the indemnity basis.

Orders

  • ['Order that Eve Anne Kilby of [address not published], Blaire Louise Kilby of [address not published] and Gail Jensen of [address not published], be appointed administrators of the will of the late Stanley Henry Kilby in place of Ronald Caldwell, deceased.' 'Order that the land [address not published], at Caringbah...