Estate of Lyn Burtonwood [2020] NSWSC 715

Supreme Court New South Wales

Medium Neutral Citation: Estate of Lyn Burtonwood [2020] NSWSC 715 Hearing dates: In Chambers and on the papers Date of orders: 11 June 2020 Decision date: 11 June 2020 Jurisdiction: Equity Before: Hallen J Decision: See [36]. Catchwords: SUCCESSION – Probate and administration – Practice and procedure – Letters of Administration –Where deceased seen entering ocean, seen swimming and then not seen again – Extensive searches conducted in an attempt to locate the body – Where no body found – Evidence and findings of Coroner relevant – Deceased was found to have died by drowning but his body not found – Death certificate issued following Inquest – Whether Letters of Administration required to be granted on presumption of death or whether evidence established on balance of probabilities that death should be inferred without need for words "on presumption of death" to be included – Distinction between inference of death and presumption of death Legislation Cited: Births, Deaths and Marriages Registration Act 1995 (NSW), s 49 Civil Procedure Act 2005 (NSW), s 56 Coroners Act 2009 (NSW), s 81 Probate and Administration Act 1898 (NSW), ss 40A, 40B Succession Act 2006 (NSW), Pt 2.1 Cases Cited: Axon v Axon (1937) 59 CLR 395; [1937] HCA 80 Chard v Chard [1956] P 259 In the Estate of Green [2020] SASC 90 Mackay v Mackay (1901) 18 WN (NSW) 266 Maynard v The Estate of Maynard [2015] QSC 144 Re Bennett (2006) 1 ASTLR 199; [2006] QSC 250 Re Parker [1995] 2 Qd R 617 Re Ryan [1990] 3 NZLR 91 Texts Cited: Leslie G Handler and Richard Neal, Mason and Handler Succession Law and Practice: New South Wales (LexisNexis Butterworths) Stephen Janes, David Liebhold and Paul Studdert, Wills, Probate and Administration Law in New South Wales (2nd ed, 2020, Lawbook Co) Category: Procedural and other rulings Parties: Che Burtonwood (Plaintiff) Kim Lenorah Raguse (First Defendant) Kye Justin Burtonwood (Second Defendant) Jemma Tegan Burtonwood (Third Defendant) Representation: Solicitors: MJM Lawyers Pty Ltd (Plaintiff) Somerville Laundry Lomax (First Defendant) Bedson Legal Pty Ltd (Second Defendant) Glass Goodwin (Third Defendant) File Number(s): 2019/00396956