Re Estate D J Hancock [2000] NSWSC 875

Re Estate D J Hancock [2000] NSWSC 875

The Court refused to appoint Carol Ann Hancock as Kimberley's guardian or tutor because Part 78 rules 29 to 31 did not apply beyond grants during minority, the estate was relatively small, there was no evidence that Carol's proposed involvement was truly in Kimberley's best interests rather than her own, Kimberley might reasonably prefer her mother to take and care for her, there was no substantial evidence against Michelle being a de facto wife, and there was fairly strong evidence supporting Michelle's de facto status. Allowing Carol to participate would amount to third party interference in another person's affairs and litigation.

Jurisdiction
Australia
Judgment Date
31 August 2000
Procedural Posture
Probate Application for Letters of Administration and Proposed Appointment of a Tutor or Guardian for a Minor / Judgment on Proposed Tutor Application After Caveat Ordered to Cease to Have Effect
Outcome
Application by Carol Ann Hancock to be appointed guardian or tutor refused; application for grant of administration remitted to the Registrar.
Legal Topics
['administration on Intestacy' 'de Facto Wife Entitlement' 'minor Beneficiary' 'tutor or Guardian for Minor' 'caveat Against Grant of Administration' 'grant Durante Minore Aetate']
['succession' 'probate'] ['administration on Intestacy' 'de Facto Wife Entitlement' 'minor Beneficiary' 'tutor or Guardian for Minor' 'caveat Against Grant of Administration' 'grant Durante Minore Aetate']

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Procedural Posture

Probate Application for Letters of Administration and Proposed Appointment of a Tutor or Guardian for a Minor / Judgment on Proposed Tutor Application After Caveat Ordered to Cease to Have Effect

Legal Issues

  1. 1 ["Whether Carol Ann Hancock should be appointed Kimberley Joy Tout's guardian under Part 78 rules 29 and 31 of the Supreme Court Rules." "Whether Carol Ann Hancock was entitled to apply to become Kimberley Joy Tout's tutor so that Kimberley could defend Michelle Joy Tout's application for administration." "Whether permitting Carol Ann Hancock to act on Kimberley's behalf would protect Kimberley's interests or amount to third party interference in the probate litigation."]

Ratio Decidendi

The Court refused to appoint Carol Ann Hancock as Kimberley's guardian or tutor because Part 78 rules 29 to 31 did not apply beyond grants during minority, the estate was relatively small, there was no evidence that Carol's proposed involvement was truly in Kimberley's best interests rather than her own, Kimberley might reasonably prefer her mother to take and care for her, there was no substantial evidence against Michelle being a de facto wife, and there was fairly strong evidence supporting Michelle's de facto status. Allowing Carol to participate would amount to third party interference in another person's affairs and litigation.

Court Disposition

Application by Carol Ann Hancock to be appointed guardian or tutor refused; application for grant of administration remitted to the Registrar.

Orders

  • ['The latest caveat ceased to have effect.' "Carol Ann Hancock's application was not granted." 'The application for grant of administration was remitted to the Registrar to make the grant if he thinks it appropriate.']