Application by Peter John Clark (Estate of John Andrew Wardell) [2022] NSWSC 798

Supreme Court New South Wales

Medium Neutral Citation: Application by Peter John Clark (Estate of John Andrew Wardell) [2022] NSWSC 798 Hearing dates: In Chambers and on the papers Date of orders: 16 June 2022 Decision date: 16 June 2022 Jurisdiction: Equity Before: Hallen J Decision: Orders set out in [44] Catchwords: SUCCESSION – Administration of estates – The deceased died intestate in 2020 – The first Plaintiff, the uncle of the deceased, seeks letters of administration – First necessary to determine the persons entitled on intestacy in order to ascertain whether he has a beneficial interest in the deceased's estate – First Plaintiff seeks order giving liberty to distribute the estate on particular basis – Searches do not reveal identity of deceased's father – Whether any further searches would reveal identity – Benjamin Order made – Determination of matters in doubt to enable entitlement to distribution and then administration of deceased's estate – First Plaintiff justified in distributing the estate to himself as uncle of the deceased – Order also made that the Plaintiffs' 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: Succession Act 2006 (NSW) ch 4, ss 102, 111, 127(1), 128, 129, 130, 131 Cases Cited: Application by NSW Trustee & Guardian (Estate of the late Marko Sijakovic) [2012] NSWSC 1532 Application by NSW Trustee and Guardian (Estate of the late Frederick John Vermaak) [2016] NSWSC 1436 Application of Harnett and Cutts [2016] NSWSC 427 Application of NSW Trustee & Guardian (2014) 14 ASTLR 436; [2014] NSWSC 1857 Application of NSW Trustee & Guardian; Estate of Dudley Keith Vaughn [2019] NSWSC 850 In re Lowe's Will Trusts [1973] 1 WLR 882 In the Estate of Chave (1930) 30 SR (NSW) 180 In the Estate of Stanley George Mizon (deceased) [2021] ACTSC 240 NSW Trustee & Guardian; In the Estate of Francis [2014] NSWSC 123 NSW Trustee & Guardian; In the Estate of Rex [2015] NSWSC 841 NSW Trustee and Guardian (Estate of Peter Urso) [2013] NSWSC 903 Public Trustee v Kehagias [2009] NSWSC 972 Re Benjamin; Neville v Benjamin [1902] 1 Ch 723 Re Gess; Gess v Royal Exchange Assurance [1942] Ch 37 Re McCormack (1902) 2 SR (NSW) B&P 48 Reidy as Court appointed Trustee [2021] NSWSC 836 Texts Cited: Alexander Learmonth, Charlotte Ford, Julia Clark and John Ross Martyn, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (21st ed, 2018, Sweet & Maxwell) Category: Principal judgment Parties: Peter John Clark (first Plaintiff) Peter Dean Steele (second Plaintiff) Representation: Counsel: Dr S Chapple (Plaintiffs)