Van Der Made v Crow [2024] NSWSC 1240

Van Der Made v Crow [2024] NSWSC 1240

Given the executor's duties under the Will and at general law to administer the estate, and the necessity of access for that purpose, as well as the plaintiff's persistent refusal to grant access, it is appropriate and necessary for the Court to make enforceable access orders under r 23.8 UCPR to enable the executor to exercise his rights and fulfil his obligations. No right of occupation was expressly conferred on the plaintiff, and no evidence supports retention of exclusive possession. The plaintiff has had notice and has not appeared to contest the orders.

Parties
Plaintiff / Respondent: Vanessa Van Der Made; Defendant / Applicant: Ian Crow
Jurisdiction
Australia
Judgment Date
27 September 2024
Procedural Posture
Family Provision Claim; Notice of Motion for Access Orders / Interlocutory Application; Ex Tempore Judgment on Defendant's Notice of Motion for Access to Estate Property
Outcome
Application granted
Legal Topics
Family Provision, Executors and Administrators, Access to Estate Property, Court's Power to Order Inspection, Will Construction
Succession Law Civil Procedure Family Provision Executors and Administrators Access to Estate Property Court's Power to Order Inspection Will Construction

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 4 Authorities cited 9 Party arguments 2 Amounts and remedies 9
Sign in to unlock

Parties

Vanessa Van Der Made

Plaintiff / Respondent

Ian Crow

Defendant / Applicant

Procedural Posture

Family Provision Claim; Notice of Motion for Access Orders / Interlocutory Application; Ex Tempore Judgment on Defendant's Notice of Motion for Access to Estate Property

Legal Issues

  1. 1 Whether the executor is entitled to access estate property occupied by the plaintiff for the purposes of administration of the estate
  2. 2 Whether the Court should make enforceable access orders under the Uniform Civil Procedure Rules 2005 (NSW) r 23.8

Ratio Decidendi

Given the executor's duties under the Will and at general law to administer the estate, and the necessity of access for that purpose, as well as the plaintiff's persistent refusal to grant access, it is appropriate and necessary for the Court to make enforceable access orders under r 23.8 UCPR to enable the executor to exercise his rights and fulfil his obligations. No right of occupation was expressly conferred on the plaintiff, and no evidence supports retention of exclusive possession. The plaintiff has had notice and has not appeared to contest the orders.

Court Disposition

Application granted

Orders

  • The plaintiff shall grant access to the defendant to X/XX Fern Street, Clovelly NSW 2031 for the purposes of taking an inventory of estate property, recording the condition of the property, and removing property about which there is no dispute as to ownership or possession.
  • The defendant and/or his solicitor are authorised to enter the Apartment for the purposes of access and removing non-disputed property, subject to further order.