Guler & Ors v NSW Trustee and Guardian & Anor [2012] NSWSC 1369

Guler & Ors v NSW Trustee and Guardian & Anor [2012] NSWSC 1369

The forfeiture rule applies to the second defendant despite his acquittal by reason of mental illness, making him liable as if found guilty of murder for the purposes of the estate. The costs incurred by NSW Trustee and Guardian as tutor for the second defendant should in the first instance be borne by the second defendant, but may be paid from the estate if unrecoverable, for which the second defendant will then indemnify the estate.

Jurisdiction
Australia
Judgment Date
13 November 2012
Procedural Posture
Probate Proceedings / Judgment After Hearing and Receipt of Submissions
Outcome
Orders made as per short minutes; forfeiture rule applies; costs and trust distribution orders as set out.
Legal Topics
['forfeiture Rule' 'costs Involving Persons Under Legal Incapacity' 'distribution of Deceased Estate']
['equity' 'probate' 'trusts'] ['forfeiture Rule' 'costs Involving Persons Under Legal Incapacity' 'distribution of Deceased Estate']

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Procedural Posture

Probate Proceedings / Judgment After Hearing and Receipt of Submissions

Legal Issues

  1. 1 ['Whether the forfeiture rule should apply to the second defendant who was found not guilty of murder by reason of mental illness' 'How costs of tutor and party under incapacity should be borne in probate proceedings']

Ratio Decidendi

The forfeiture rule applies to the second defendant despite his acquittal by reason of mental illness, making him liable as if found guilty of murder for the purposes of the estate. The costs incurred by NSW Trustee and Guardian as tutor for the second defendant should in the first instance be borne by the second defendant, but may be paid from the estate if unrecoverable, for which the second defendant will then indemnify the estate.

Court Disposition

Orders made as per short minutes; forfeiture rule applies; costs and trust distribution orders as set out.

Orders

  • ['Time for commencement of proceedings extended to date of filing of the Summons.' 'Rule of Law known as the forfeiture rule applies to the Second Defendant as if found guilty of murder of Altun Guler on 11 April 2005.' 'NSW Trustee and Guardian holds the estate of Altun Guler on trust for Cemil Cengiz Burak Guler,...