Re Estate Wilson, Deceased [2017] NSWSC 1

Re Estate Wilson, Deceased [2017] NSWSC 1

The deceased was an Indigenous person, died wholly intestate, and belonged to the Aboriginal family and Sydney Aboriginal community identified by the plaintiffs. The plaintiffs made a bona fide claim and provided a sufficient scheme for distribution under Part 4.4. Although the defendants had a statutory entitlement under the general intestacy provisions as adoptive half-sisters, section 135 permitted a Part 4.4 distribution order to displace those provisions. Having regard to the deceased's sustained family relationship with the plaintiffs over the last two decades of his life, his long disengagement from his adoptive family, the absence of dependants or evidence that he intended the...

Jurisdiction
Australia
Judgment Date
18 January 2017
Procedural Posture
Application for a Distribution Order and Letters of Administration in an Indigenous Intestate Estate / Final Hearing and Principal Judgment
Outcome
Distribution order made under section 134 of the Succession Act 2006 NSW; letters of administration granted to the first plaintiff; each party to bear her own costs.
Legal Topics
['intestacy' 'distribution on Intestacy' 'aboriginal Intestate Estate' 'adoption and Intestacy' 'succession Act 2006 NSW Part 4.4' 'just and Equitable Distribution Order']
['succession' 'probate and Administration' "indigenous Persons' Estates"] ['intestacy' 'distribution on Intestacy' 'aboriginal Intestate Estate' 'adoption and Intestacy' 'succession Act 2006 NSW Part 4.4' 'just and Equitable Distribution Order']

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Procedural Posture

Application for a Distribution Order and Letters of Administration in an Indigenous Intestate Estate / Final Hearing and Principal Judgment

Legal Issues

  1. 1 ['Whether the deceased was an Indigenous person within the meaning of section 101 of the Succession Act 2006 NSW.' 'Whether the plaintiffs had standing and had provided a sufficient scheme for distribution under section 133 of the Succession Act 2006 NSW.' 'How Part 4.4 of the Succession Act 2006 NSW should be construed and applied where Aboriginal biological half-sisters contest statutory entitlements of adoptive half-sisters.' 'Whether a distribution order under section 134 should depart from the general intestacy entitlement under section 129.' 'Whether the proposed distribution was, in all the circumstances, just and equitable.']

Ratio Decidendi

The deceased was an Indigenous person, died wholly intestate, and belonged to the Aboriginal family and Sydney Aboriginal community identified by the plaintiffs. The plaintiffs made a bona fide claim and provided a sufficient scheme for distribution under Part 4.4. Although the defendants had a statutory entitlement under the general intestacy provisions as adoptive half-sisters, section 135 permitted a Part 4.4 distribution order to displace those provisions. Having regard to the deceased's sustained family relationship with the plaintiffs over the last two decades of his life, his long disengagement from his adoptive family, the absence of dependants or evidence that he intended the...

Court Disposition

Distribution order made under section 134 of the Succession Act 2006 NSW; letters of administration granted to the first plaintiff; each party to bear her own costs.

Orders

  • ['Pursuant to section 134 of the Succession Act 2006 NSW, the estate of Howard Stanley Wilson, late of Panania, who died at Bankstown on 26 June 2013, is to be distributed with a legacy of $4,000 to the first defendant, a legacy of $4,000 to the second defendant, and the residue to the plaintiffs as tenants in...