Application of the NSW Trustee and Guardian; Estate of SGB [2015] NSWSC 398

Application of the NSW Trustee and Guardian; Estate of SGB [2015] NSWSC 398

Because the evidence established with reasonable certainty that Mr [W] was the deceased's father, but his attorney had apparently disclaimed any claim to his share by telephone, the NSW Trustee and Guardian would be justified under s 63 of the Trustee Act 1925 (NSW) in distributing the balance of the estate to the deceased's mother after giving formal notice to Mrs [W] as attorney and allowing one calendar month for any contrary application, or earlier if written confirmation of the disclaimer was received.

Jurisdiction
Australia
Judgment Date
09 April 2015
Procedural Posture
Application for Judicial Advice by the NSW Trustee and Guardian Regarding Administration and Distribution of an Intestate Estate / Final Orders
Outcome
Judicial advice and directions given; costs ordered out of the estate on the indemnity basis.
Legal Topics
['intestacy' 'judicial Advice' 'distribution of Estate' 'identification of Next of Kin' 'incapable Beneficiary' 'disclaimer of Share of Estate']
['wills, Probate and Administration' 'trusts' 'equity'] ['intestacy' 'judicial Advice' 'distribution of Estate' 'identification of Next of Kin' 'incapable Beneficiary' 'disclaimer of Share of Estate']

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Procedural Posture

Application for Judicial Advice by the NSW Trustee and Guardian Regarding Administration and Distribution of an Intestate Estate / Final Orders

Legal Issues

  1. 1 ["Whether Mr [W] was the deceased's father and therefore entitled to share in the intestate estate." "Whether the NSW Trustee and Guardian would be justified in distributing the balance of the estate to the deceased's mother if Mr [W] or his attorney did not make an application or if his attorney gave written confirmation disclaiming his share." 'What notice and time should be fixed under s 63 of the Trustee Act 1925 (NSW) before distribution of the balance of the estate.']

Ratio Decidendi

Because the evidence established with reasonable certainty that Mr [W] was the deceased's father, but his attorney had apparently disclaimed any claim to his share by telephone, the NSW Trustee and Guardian would be justified under s 63 of the Trustee Act 1925 (NSW) in distributing the balance of the estate to the deceased's mother after giving formal notice to Mrs [W] as attorney and allowing one calendar month for any contrary application, or earlier if written confirmation of the disclaimer was received.

Court Disposition

Judicial advice and directions given; costs ordered out of the estate on the indemnity basis.

Orders

  • ["The plaintiff be advised that it would be justified in distributing the balance of the estate of the late [SGB] to the deceased's mother after deducting its proper charges, costs and expenses, unless an application is made by or on behalf of Mr [W] within the time referred to in order 3 for an order that the...