Application by Walsh & Anor (Estate of Robert Charles Walsh (deceased)) [2020] NSWSC 976

Supreme Court New South Wales

Medium Neutral Citation: Application by Walsh & Anor (Estate of Robert Charles Walsh (deceased)) [2020] NSWSC 976 Hearing dates: In Chambers and on the papers Date of orders: 31 July 2020 Decision date: 31 July 2020 Jurisdiction: Equity Before: Hallen J Decision: See Paragraphs [54]–[55] Catchwords: SUCCESSION – Administration of estates – Satisfaction of legacies – The deceased died testate in January 2012 – Executors to determine whether one share of three of the residuary estate should be distributed as the beneficiary entitled thereto has not been heard of for nearly 20 years – Whether presumption of death applies - Executors seeking order giving liberty to distribute the residuary estate to other two beneficiaries – Plaintiff justified in distributing the residuary estate – Benjamin Order made – Order also made that the Plaintiff's costs of the proceedings, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate of the deceased Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 54.3 Cases Cited: Allman & Co v M'Cabe [1911] 2 IR 398 Application by NSW Trustee & Guardian (Estate of Edward Charles Turner) [2020] NSWSC 944 Axon v Axon (1937) 59 CLR 395; [1937] HCA 80 Bickford v Benson [2015] WASC 161 Chard v Chard [1956] P 259 Directors of the Prudential Assurance Company v Edmonds (1877) 2 App Cas 487 Estate of Howard (1996) 39 NSWLR 409 Estate of Lyn Burtonwood [2020] NSWSC 715 Halbert v Mynar [1981] 2 NSWLR 659 In re Benjamin; Neville v Benjamin [1902] 1 Ch 723 In re Dolling, deceased; Dolling v Dolling [1956] VLR 535 In re Jackson; Jackson v Ward [1907] 2 Ch 354 Re Green's Will Trusts; Fitzgerald-Hart v Attorney General [1985] 3 All ER 455 Re Parker [1995] 2 Qd R 617 Re Reynolds' Trusts [1942] QWN 16 Re Saunders; Park v Austin [1928] NZLR 391 Ross v NRMA Life Limited (1993) 7 ANZ Insurance Cases ¶61-170 Victoria Agnes Nolan as Administratrix of the Estate of Barbara Nolan, deceased v Nolan (2011) 6 ASTLR 80; [2011] WASC 224 Wilcox v Poole [1974] 2 NSWLR 693 Texts Cited: Stephen Janes, David Liebhold and Paul Studdert, Wills, Probate and Administration Law in New South Wales (2nd ed, 2020, Lawbook Co) Category: Principal judgment Parties: John Henry Walsh (First Plaintiff) Gina Pantazopoulos Walsh (Second Plaintiff) Representation: Solicitors: Conditsis Lawyers (Plaintiffs) File Number(s): 2020/00095855