Van Der Made v Crow [2024] NSWSC 1240

Supreme Court New South Wales

Medium Neutral Citation: Van Der Made v Crow [2024] NSWSC 1240 Hearing dates: 27 September 2024 Date of orders: 27 September 2024 Decision date: 27 September 2024 Jurisdiction: Equity - Succession & Probate List - Family Provision Before: Meek J Decision: Orders made for the plaintiff to grant access to the estate property to the defendant for the purposes stated in his notice of motion. Further ancillary orders made. Catchwords: SUCCESSION — Family provision — Claim by alleged de facto of the deceased — Plaintiff had lived with the deceased in the deceased's unit for some period of time prior to his death — Plaintiff continued to live in the deceased's unit after his death and refused to grant the defendant, the deceased's brother and executor, access to the unit for the purposes of administering the estate by taking an inventory of estate property, recording the condition of the unit and estate property and removing any estate property about which there is no dispute as to ownership or possession ("purposes") — In the context of being repeatedly refused access, the defendant filed a notice of motion seeking access to the unit for the purposes and for fulfilling his obligations as executor — Held that access orders should be made SUCCESSION — Executors and administrators — Rights, powers and duties — Real property — Whether the defendant could seek access to the estate property — Discussion of sources of powers of executors to require access to estate property for the purposes of administration, including in the terms of the Will and general law SUCCESSION — Executors and administrators —Construction of powers under Will — Whether sufficient to enable access to property — In context of resistance to access and extant court proceedings, it is appropriate for an executor to seek the imprimatur and authorisation from the Court, rather than resort to self-help remedies — It is appropriate to make formal orders directing the plaintiff occupant to permit the executor access to estate property and to authorise the executor to enter such property to enable rights of access (from the Will or otherwise) to be practically exercised CIVIL PROCEDURE — Powers of the Court to order inspection of property — Uniform Civil Procedure Rules 2005 (NSW), r 23.8 — Given that the nature and extent of the deceased's estate is a fundamental matter in question in family provision proceedings, the Court has power under UCPR r 23.8 to make orders for the inspection of estate property in order to enable the proper determination of that matter — Held that UCPR r 23.8 was an available and appropriate power under which to order the relief sought by the defendant on his notice of motion Legislation Cited: Conveyancing Act 1919 (NSW) Evidence Act 1995 (NSW) Probate and Administration Act 1898 (NSW) Succession Act 2006 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Argyle Art Centre Pty Ltd v Argyle Bond & Free Stores Co Pty Ltd [1976] 1 NSWLR 377 Gonzales v Claridades (2003) 58 NSWLR 188; [2003] NSWSC 508 Public Trustee v Bellotti (1986) 4 BPR 9196 Terunnanse v Terunnanse [1968] AC 1086 Texts Cited: Learmonth KC, Alexander et al, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (22nd ed, 2023, Sweet & Maxwell) Category: Procedural rulings Parties: Vanessa Van Der Made (Plaintiff / Respondent) Ian Crow (Defendant / Applicant) Representation: Counsel: D Parish (Defendant / Applicant)