Scallan v Scallan [2001] NSWSC 1129

Scallan v Scallan [2001] NSWSC 1129

In the absence of a grant of probate or administration, proceedings commenced purportedly on behalf of a deceased estate are a nullity and must be dismissed; neither the existence of a will naming executors nor the vesting of the estate in the Public Trustee before grant authorises proceedings without proper representation.

Parties
Plaintiff/cross Defendant: Victoria Sarah Scallan; Defendant/cross Claimant: Eden Charles Scallan
Jurisdiction
Australia
Judgment Date
10 December 2001
Procedural Posture
Equity Proceedings—estate Dispute / Notice of Motion to Stay or Dismiss Proceedings; Judgment
Outcome
Proceedings dismissed as being a nullity due to want of standing; costs awarded to defendant.
Legal Topics
Commencement of Proceedings on Behalf of Estate Without Grant of Administration, Standing to Sue on Behalf of Deceased Estate, Role of Public Trustee Before Grant of Representation, Undue Influence, Unconscionable Conduct, Contracts Review Act 1980
Wills and Probate Practice and Procedure Equity Commencement of Proceedings on Behalf of Estate Without Grant of Administration Standing to Sue on Behalf of Deceased Estate Role of Public Trustee Before Grant of Representation Undue Influence Unconscionable Conduct +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 12 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Victoria Sarah Scallan

Plaintiff/cross Defendant

Eden Charles Scallan

Defendant/cross Claimant

Procedural Posture

Equity Proceedings—estate Dispute / Notice of Motion to Stay or Dismiss Proceedings; Judgment

Legal Issues

  1. 1 Whether plaintiff has standing to commence proceedings on behalf of deceased's estate in absence of grant of probate or administration
  2. 2 Whether Public Trustee may bring proceedings under s61 of the Wills Probate and Administration Act 1898 where no administration has been granted
  3. 3 Whether proceedings commenced without a grant are a nullity

Ratio Decidendi

In the absence of a grant of probate or administration, proceedings commenced purportedly on behalf of a deceased estate are a nullity and must be dismissed; neither the existence of a will naming executors nor the vesting of the estate in the Public Trustee before grant authorises proceedings without proper representation.

Court Disposition

Proceedings dismissed as being a nullity due to want of standing; costs awarded to defendant.

Orders

  • The plaintiff's notice of motion be dismissed.
  • The proceedings be dismissed.