The Estate of Alan Bruce Beeby [2020] NSWSC 1512

Supreme Court New South Wales

Medium Neutral Citation: The Estate of Alan Bruce Beeby [2020] NSWSC 1512 Hearing dates: In Chambers and on the papers Date of orders: 29 October 2020 Decision date: 29 October 2020 Jurisdiction: Equity Before: Hallen J Decision: The Court: (a) Declares that the Court is satisfied that Alan Bruce Beeby died on 26 January 2020, during a voyage to a port in the State of New South Wales. (b) Orders that subject to compliance with the Probate rules of Court, Probate in common form of the Will dated 17 November 2017 of Alan Bruce Beeby be granted to the Plaintiff. (c) Dispenses with the requirement to file a death certificate of Alan Bruce Beeby, unless and until a notice given by a coroner under ss 34(1) or (2) of the Coroners Act 2009 (NSW) for the purpose of effecting, or completing, registration of the death is issued. (d) Orders that the matter be remitted to the Senior Deputy Registrar in Probate to complete the grant. (e) Orders that the Plaintiff's costs, calculated on the indemnity basis, of the proceedings be paid out of the estate of Alan Bruce Beeby. Catchwords: SUCCESSION – Probate and administration – Practice and procedure – Probate of Will – Where person travelling on vessel which capsized – Where he entered the sea and then not seen again – Extensive searches conducted in an attempt to locate the person – Where no body found – No death certificate issued – Whether Court is able to order issue of death certificate – Registrar of Births, Deaths and Marriages joined as party – Submitting appearance entered – Whether Probate required to be granted on presumption of death or whether evidence established on balance of probabilities that death has occurred without need for words "on presumption of death" to be included on Probate – Court satisfied on balance of probabilities of the death Legislation Cited: Births, Deaths and Marriages Registration Act 1995 (NSW), ss 36, 37, 38, 39, 49 Coroners Act 2009 (NSW), s 34 Probate and Administration Act 1898 (NSW), ss 40, 40A Supreme Court Act 1970 (NSW), s 75 Uniform Civil Procedure Rules 2005 (NSW), r 6.11 Cases Cited: Application by Walsh & Anor (Estate of Robert Charles Walsh (deceased)) [2020] NSWSC 976 Axon v Axon (1937) 59 CLR 395; [1937] HCA 80 Bass v Permanent Trustee Company Limited (1999) 198 CLR 334; [1999] HCA 9 Chard v Chard [1956] P 259 Church of the Foursquare Gospel (Australia) Ltd v New Hope Church Swansea Inc [2019] NSWSC 519 Clarence City Council v Commonwealth of Australia (2020) 382 ALR 273; [2020] FCAFC 134 Crawford v Davidson-Crawford [2019] NSWSC 728 Croft v Dunphy [1933] AC 156 D v Commissioner of Taxes [1941] St R Qd 218 Estate of Lyn Burtonwood [2020] NSWSC 715 Forster v Jododex Australia Pty Limited (1972) 127 CLR 421; [1972] HCA 61 Lavender v Director of Fisheries Compliance, Department of Industry Skills and Regional Development (2018) 359 ALR 96; [2018] NSWCA 174 New South Wales v Commonwealth (1975) 135 CLR 337 at 408; [1975] HCA 58 Port Macdonnell Professional Fishermen's Association Inc v The State of South Australia (1989) 168 CLR 340; [1989] HCA 49 R v Szabo [2020] ACTSC 175 Russian Commercial and Industrial Bank v British Bank for Foreign Trade, Limited [1921] 2 AC 438 The State of Western Australia v Edwards [No 7] [2020] WASC 339 Zetting v Müller [2017] NSWSC 659 Texts Cited: J D Heydon, Cross on Evidence (2020, LexisNexis) P W Young, Declaratory Orders (2nd ed, 1984, Butterworths) Category: Principal judgment Parties: Lorraine Anne Beeby (Plaintiff) Registrar of Births, Deaths and Marriages (Defendant) Representation: Counsel: G McGrath (Plaintiff) Submitting Appearance by Defendant