NSW Trustee & Guardian; In the Estate of Francis [2014] NSWSC 123

NSW Trustee & Guardian; In the Estate of Francis [2014] NSWSC 123

After extensive searches, either Herbert James Francis was the deceased's father and predeceased him, or no other father could be identified; with the possible exception of Kevin James Francis, there was no located issue of the father who survived the deceased or left issue who survived. Section 61B(5) was therefore not applicable, and distribution under s 61B(6)(a) or (b) produced the same result, namely distribution to Kevin James Francis.

Jurisdiction
Australia
Judgment Date
14 February 2014
Procedural Posture
Application for Liberty to Distribute an Intestate Estate by Benjamin Order / Ex Tempore Judgment on Amended Summons
Outcome
Application to distribute estate granted
Legal Topics
['intestate Succession' 'benjamin Order' 'distribution of Estate' 'unascertained Parent or Issue']
['wills, Probate and Administration' 'equity'] ['intestate Succession' 'benjamin Order' 'distribution of Estate' 'unascertained Parent or Issue']

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Procedural Posture

Application for Liberty to Distribute an Intestate Estate by Benjamin Order / Ex Tempore Judgment on Amended Summons

Legal Issues

  1. 1 ["Whether the NSW Trustee and Guardian should be at liberty to distribute the deceased's intestate estate to Kevin James Francis on the footing that the deceased's unknown father did not survive the deceased and did not have other relevant issue who survived the deceased or left issue who survived the deceased." 'Whether distribution should proceed under s 61B(6)(a) or (b) of the Probate and Administration Act (1898) NSW rather than s 61B(5).']

Ratio Decidendi

After extensive searches, either Herbert James Francis was the deceased's father and predeceased him, or no other father could be identified; with the possible exception of Kevin James Francis, there was no located issue of the father who survived the deceased or left issue who survived. Section 61B(5) was therefore not applicable, and distribution under s 61B(6)(a) or (b) produced the same result, namely distribution to Kevin James Francis.

Court Disposition

Application to distribute estate granted

Orders

  • ['The NSW Trustee & Guardian is at liberty to distribute the estate of Mervyn Joseph Francis to Kevin James Francis upon the footing that the father of the deceased did not survive the deceased and did not have issue, excepting possibly Kevin James Francis, who survived the deceased or who predeceased leaving issue...