Application of Roberts [2023] NSWSC 342

Application of Roberts [2023] NSWSC 342

Having regard to the evidence, including the propositus having been missing and unheard from for over 44 years, the Coronial Inquest finding that he was deceased, the issue of a Death Certificate, the absence of evidence that he left issue, and the searches and enquiries undertaken, the Court was satisfied that all avenues of search had been exhausted and that further searches were unlikely to improve the evidence. There was no useful purpose in delaying distribution. The undertaking no longer served a purpose, and releasing the Plaintiff from it was convenient and just. The Plaintiff was therefore justified in distributing the estate as if Alan Martin Fox had predeceased the deceased...

Jurisdiction
Australia
Judgment Date
06 April 2023
Procedural Posture
Application in the Equity Division Concerning Administration of an Intestate Estate and a Missing Beneficiary / In Chambers on the Papers; Principal Judgment
Outcome
Application granted; Plaintiff released from undertaking and permitted to distribute the remaining estate as if Alan Martin Fox had predeceased the deceased without issue, with indemnity costs payable out of the estate.
Legal Topics
['intestacy' 'missing Beneficiary' 'benjamin Order' 'release From Undertaking' 'distribution of Estate' 'indemnity Costs From Estate']
['succession' 'probate and Administration' 'equity'] ['intestacy' 'missing Beneficiary' 'benjamin Order' 'release From Undertaking' 'distribution of Estate' 'indemnity Costs From Estate']

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Procedural Posture

Application in the Equity Division Concerning Administration of an Intestate Estate and a Missing Beneficiary / In Chambers on the Papers; Principal Judgment

Legal Issues

  1. 1 ['Whether the Plaintiff, as administrator of the estate of Enid Jean Fox, should be released from her undertaking not to distribute the one fifth share of the estate representing the share of Alan Martin Fox.' 'Whether the administrator should be permitted to distribute the share of the intestate estate on the basis that Alan Martin Fox had predeceased the deceased without issue.' "Whether the Plaintiff's costs of the proceedings should be paid out of the estate on the indemnity basis."]

Ratio Decidendi

Having regard to the evidence, including the propositus having been missing and unheard from for over 44 years, the Coronial Inquest finding that he was deceased, the issue of a Death Certificate, the absence of evidence that he left issue, and the searches and enquiries undertaken, the Court was satisfied that all avenues of search had been exhausted and that further searches were unlikely to improve the evidence. There was no useful purpose in delaying distribution. The undertaking no longer served a purpose, and releasing the Plaintiff from it was convenient and just. The Plaintiff was therefore justified in distributing the estate as if Alan Martin Fox had predeceased the deceased...

Court Disposition

Application granted; Plaintiff released from undertaking and permitted to distribute the remaining estate as if Alan Martin Fox had predeceased the deceased without issue, with indemnity costs payable out of the estate.

Orders

  • ["Orders that the Plaintiff, as administrator of the estate of Enid Jean Fox be released from her undertaking to not distribute the one fifth share of the deceased's estate, representing the share of Alan Martin Fox, a child of the deceased." 'Declares that the Plaintiff may distribute the remaining part of the...