NSW Caselaw
New South Wales Supreme Court
CITATION : Application of Philip Lewis Abigail [2002] NSWSC 556 FILE NUMBER(S) : SC 2363/02 HEARING DATE(S) : 11 June 2002 JUDGMENT DATE : 21 June 2002
PARTIES : Philip Lewis Abigail (Applicant) JUDGMENT OF : Master McLaughlin
COUNSEL : P. Lever-Naylor (Applicant) SOLICITORS : Abigails Solicitors (Applicant) CATCHWORDS : Wills - Application by executor for judicial advice - Procedure not appropriate where controversial questions of fact or construction are involved - Testator was an undischarged bankrupt - Whether payment by insurer under a life policy forms an asset of the estate - If an asset, how should it be dealt with by executor - Appropriate procedure - Infant beneficiaries. LEGISLATION CITED : Insurance Contracts Act 1984 Trustee Act 1925 Bullas v Public Trustee [1981] 1 NSWLR 641 CASES CITED : Harrison v Mills [1976] 1 NSWLR 42 Wilcox v Poole [1974] 2 NSWLR 693 DECISION : (1). I decline to answer the questions asked in the Statement of Facts filed on 29 May 2002.; (2). I grant leave to the Plaintiff to file an amended summons, and to join additional defendants to the proceedings.; (3). I order that the costs of the proceedings to date be costs in the proceedings.; (4). I stand the proceedings over to 12 July 2002 before the Registrar.
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
MASTER McLAUGHLIN
Friday, 21 June 2002
2363/02 APPLICATION OF PHILIP LEWIS ABIGAIL ESTATE OF THE LATE JUDITH ANN MARSHALL JUDGMENT 1 MASTER: These proceedings were instituted by the filing on 22 April 2002 of a summons (described therein as "Summons for Directions"). 2 By that summons the Plaintiff, Philip Lewis Abigail, claims, firstly, relief in the following terms: A determination of a question arising under the will of the late Judith Ann Marshall dated 13 January 1995, probate of which was granted on 21 September 2001, Grant No. 114751/01, as to whether on the true construction of the said will and in the events which have happened,
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