Re Estate Jerrard, deceased [2018] NSWSC 781

Re Estate Jerrard, deceased [2018] NSWSC 781

The Court found that the traditional customary lore of the Nucoorilma Clan of the Gomeroi People, as evidenced by uncontradicted community statements and affidavits, supports distribution of the estate to the person who cared for and raised the deceased; the plaintiff, as primary carer and mother. However, in view of the deceased’s maintained relationship with his father (the defendant), it would not be just and equitable to exclude the father entirely. Therefore, a distribution order was made awarding the defendant a legacy of $39,706.57, with the residue of the estate to go to the plaintiff.

Jurisdiction
Australia
Judgment Date
08 June 2018
Procedural Posture
Application for Distribution Order Under Succession Act 2006 (nsw), Part 4.4 / Principal Judgment
Outcome
A distribution order under Part 4.4 Succession Act 2006 (NSW) was made in favour of the mother (plaintiff), with a legacy to the father (defendant). Letters of Administration granted to the plaintiff. Orders as to costs made.
Legal Topics
['intestacy' 'distribution of Indigenous Estates' 'distribution Order Under Succession Act 2006 (nsw) Part 4.4' 'proof of Indigenous Laws and Customs']
['equity' 'succession' 'probate'] ['intestacy' 'distribution of Indigenous Estates' 'distribution Order Under Succession Act 2006 (nsw) Part 4.4' 'proof of Indigenous Laws and Customs']

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Procedural Posture

Application for Distribution Order Under Succession Act 2006 (nsw), Part 4.4 / Principal Judgment

Legal Issues

  1. 1 ["Whether the laws, customs, traditions and practices of the Nucoorilma Clan of the Gomeroi People require distribution of the deceased's estate to the mother to the exclusion or reduction of the father’s share" "What is 'just and equitable' under section 134(4) of Succession Act 2006 (NSW) in these circumstances" 'Standard and proof for Indigenous law evidence under the Evidence Act 1995 (NSW)']

Ratio Decidendi

The Court found that the traditional customary lore of the Nucoorilma Clan of the Gomeroi People, as evidenced by uncontradicted community statements and affidavits, supports distribution of the estate to the person who cared for and raised the deceased; the plaintiff, as primary carer and mother. However, in view of the deceased’s maintained relationship with his father (the defendant), it would not be just and equitable to exclude the father entirely. Therefore, a distribution order was made awarding the defendant a legacy of $39,706.57, with the residue of the estate to go to the plaintiff.

Court Disposition

A distribution order under Part 4.4 Succession Act 2006 (NSW) was made in favour of the mother (plaintiff), with a legacy to the father (defendant). Letters of Administration granted to the plaintiff. Orders as to costs made.

Orders

  • ['A legacy of $39,706.57 is to be paid to the defendant.' 'The residue of the estate, after expenses and costs, is to pass to the plaintiff for her benefit.' 'No interest to accrue on the legacy if paid within six months; interest otherwise payable under s 84A Probate and Administration Act 1898 (NSW).' 'Letters of...