Hewitt v Gardner; Hewitt v Gardner [2009] NSWSC 705

Hewitt v Gardner; Hewitt v Gardner [2009] NSWSC 705

Plaintiffs do not have standing to pursue the undue influence claim against the inter vivos transfer, as this is a chose in action belonging to the estate. However, as there are valid claims on probate, the proceedings are not a nullity. The court has power under UCPR r 7.10 to appoint a representative for the estate for the purposes of the undue influence claim, and to allow Family Provision Act proceedings to continue in the absence of a representative, subject to notification of relevant beneficiaries.

Jurisdiction
Australia
Judgment Date
24 July 2009
Procedural Posture
Equity/probate Family Provision and Undue Influence Proceedings / Preliminary Procedural Ruling/orders Before Hearing of Substantive Claims
Outcome
Procedural rulings; appointment and confirmation of representative; orders made under rule 7.10
Legal Topics
['family Provision' 'undue Influence' 'probate' 'representative Appointments' 'standing to Sue' 'nullity of Proceedings']
['succession Law' 'civil Procedure' 'equity'] ['family Provision' 'undue Influence' 'probate' 'representative Appointments' 'standing to Sue' 'nullity of Proceedings']

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Procedural Posture

Equity/probate Family Provision and Undue Influence Proceedings / Preliminary Procedural Ruling/orders Before Hearing of Substantive Claims

Legal Issues

  1. 1 ['Whether proceedings may continue without a representative of the estate' 'Whether the plaintiffs have standing to pursue claims of undue influence concerning inter vivos transactions' 'Whether proceedings are a nullity if commenced without proper representation' 'Power of court to appoint a representative under UCPR 7.10 for the estate']

Ratio Decidendi

Plaintiffs do not have standing to pursue the undue influence claim against the inter vivos transfer, as this is a chose in action belonging to the estate. However, as there are valid claims on probate, the proceedings are not a nullity. The court has power under UCPR r 7.10 to appoint a representative for the estate for the purposes of the undue influence claim, and to allow Family Provision Act proceedings to continue in the absence of a representative, subject to notification of relevant beneficiaries.

Court Disposition

Procedural rulings; appointment and confirmation of representative; orders made under rule 7.10

Orders

  • ["Proceedings 2693 of 2007 continue in the absence of a representative of the deceased's estate." 'In proceedings 2046 of 2008, Nita May Hewitt be appointed under rule 7.10 of the Uniform Civil Procedure Rules to represent the estate of the late Essie Lila Lipscombe.' "In proceedings 2046 of 2008, the title of the...