Application of Roberts [2023] NSWSC 342

Supreme Court New South Wales

Medium Neutral Citation: Application of Roberts [2023] NSWSC 342 Hearing dates: In Chambers on the papers Date of orders: 6 April 2023 Decision date: 06 April 2023 Jurisdiction: Equity Before: Hallen J Decision: The Court in Chambers: (1) Orders that the Plaintiff, as administrator of the estate of Enid Jean Fox be released from her undertaking to not distribute the one fifth share of the deceased's estate representing the share of Alan Martin Fox, a child of the deceased. (2) Declares that the Plaintiff may distribute the remaining part of the estate of Enid Jean Fox as if Alan Martin Fox had predeceased the deceased without issue, and that the one fifth share to which he would have been entitled had he been proved to have survived the deceased may be distributed to the four other children of the deceased in equal shares. (3) Orders that, if Alan Martin Fox, or any issue, is established to be alive, then the other children of the deceased shall repay to the administrator the total amount distributed to him or her from the estate of Enid Jean Fox to the intent that there will be an equal division between the children of the deceased. (4) Orders that the Plaintiff's costs, calculated on the indemnity basis, of the proceedings, be paid out of the estate of the deceased. Catchwords: SUCCESSION – Probate and administration – Where missing person, who is a beneficiary of an intestate estate was last seen in 1979 – Searches and enquiries then conducted in an attempt to locate missing beneficiary – Coronial Inquest which found that person likely to be deceased – No contact with persons with whom the missing person would have been likely to communicate, including family members – No evidence that missing beneficiary is alive or dead, although Death Certificate issued by Coroner – Whether administrator should distribute the share of the intestate estate upon the basis that the missing beneficiary is dead – Court satisfied that the Administrator should be released from that undertaking and that she would be justified in distributing the share of the intestate estate to which the missing beneficiary is entitled to the surviving issue of the deceased – Order also made that the 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: Civil Procedure Act 2005 (NSW) s 71 Succession Act 2006 (NSW) ss 111, 127 Supreme Court Act 1970 (NSW) s 11 Cases Cited: Application of Jordan; Estate of Michael Galanis (aka Michael Galanakis) [2023] NSWSC 221 Re Benjamin; Neville v Benjamin [1902] 1 Ch 723 Category: Principal judgment Parties: Fiona Jean Roberts (Plaintiff) Representation: Solicitors: McNally Jones Staff Lawyers (Plaintiff) File Number(s): 2023/35509 Publication restriction: Nil