Weiss v Weiss; Estate of Anita Hildegard Weiss [2020] NSWSC 1064

Supreme Court New South Wales

Medium Neutral Citation: Weiss v Weiss; Estate of Anita Hildegard Weiss [2020] NSWSC 1064 Hearing dates: 25 June, 5 August 2020 Date of orders: 14 August 2020 Decision date: 14 August 2020 Jurisdiction: Equity Before: Hallen J Decision: The Court: (a) Declares that the Court is not satisfied that the purported Will dated 5 November 2015 of Anita Hildegard Weiss is a valid testamentary instrument of the deceased. (b) Declares that the deceased died intestate. (c) Orders that, subject to compliance with the Probate Rules of Court, letters of administration of the intestate estate of the deceased be granted to the Plaintiff, Udo Weiss. (d) Orders that the matter be remitted to the Senior Deputy Registrar in Probate to complete the grant. (e) Orders that, subject to no appeal being brought, which is successful, the balance of the relief claimed in the Plaintiff's Statement of Claim filed 15 January 2020 be dismissed. (f) Orders that the Plaintiff's costs, calculated on the ordinary basis, be paid out of the share of the deceased's intestate estate that passes to the Defendant. (g) Orders that the difference between the Plaintiff's costs, calculated on the ordinary basis, and his costs, calculated on the indemnity basis, be paid out of the estate of the deceased. Catchwords: SUCCESSION – Practice and procedure – Intestacy – Entitlement to grant on intestacy – Where apparently valid Will in existence – Where the Defendant executor and sole legatee under the Will does not appear – Where no person propounds the apparently valid Will – Evidence required on application for a grant of letters of administration on intestacy – Whether a grant of letters of administration on intestacy can be made Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Succession Act 2006 (NSW), ss 6, 127 Supreme Court Rules 1970 (NSW), Pt 78, r 26 Uniform Civil Procedure Rules 2005 (NSW), rr 14.3, 14.26, 16.2, 18.7, 28.1, 28.2, 42.1, Dictionary Cases Cited: Alesco Corporation Limited v Te Maari [2015] NSWSC 469 Azzopardi v Smart (The Estate of Alice Ann Smart) (1992) 27 NSWLR 232 Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21 Beatson v Perry (1906) 6 SR (NSW) 167 Burnside v Mulgrew; Re the Estate of Doris Grabrovaz [2007] NSWSC 550 Combis & Staatz as joint and several liquidators of RB Hospitality Holdings Pty Ltd (in liq) v Lee [2020] NSWSC 960 Commonwealth of Australia v Gretton [2008] NSWCA 117 Cushway v Harris [2012] EWHC 2273 (Ch) Estate of Janet Robertson (deceased) [1964] NSWR 1087 Fuller v Strum [2002] 1 WLR 1097; [2001] EWCA Civ 1879 Hobhouse v Macarthur-Onslow [2016] NSWSC 1831 Hoff v Atherton [2004] EWCA Civ 1554 In re Bladen [1952] VLR 82 In the Estate of Muirhead, Deceased [1971] P 263 Loretta Craig v Anthony Johnson [2020] NSWSC 430 McKinnon v Voigt [1998] 3 VR 543 Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Perrins v Holland [2009] EWHC 1945 (Ch) Perrins v Holland [2011] Ch 270; [2010] EWCA Civ 840 Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284 Re Estate of Paul Francis Hodges Deceased; Shorter v Hodges (1988) 14 NSWLR 698 Re Nicholls [1996] 1 Qd R 179; [1995] QSC 184 Scarpuzza v Scarpuzza (2011) 4 ASTLR 244; [2011] WASC 65 Southwell v Bennett [2010] NSWSC 1372 Sullivan v Mouglalis; Wilson v Mouglalis - Estate Late Willem Wyma [2008] NSWSC 1326 Taylor v Taylor (1979) 143 CLR 1; [1979] HCA 38 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Westpac Banking Corporation Ltd v Kay (No 3) [2020] NSWSC 206 Wharton v Bancroft [2011] EWHC 3250 (Ch) Texts Cited: G L Certoma, The Law of Succession in New South Wales (4th ed, 2010, Lawbook Co) Category: Principal judgment Parties: Udo Weiss (Plaintiff) Peter Weiss (Defendant) Representation: Counsel: C P Birtles (Plaintiff)