Meisner v The Crown [2004] NSWSC 327

New South Wales Supreme Court

CITATION : Meisner v The Crown [2004] NSWSC 327 HEARING DATE(S) : 26 March 2004 JUDGMENT DATE : 26 March 2004 JURISDICTION: Equity JUDGMENT OF : Austin J DECISION : Declaration that real property passes to Crown as bona vacantia

CATCHWORDS : WILLS and ESTATES - intestate domiciled in Israel with real property in New South Wales - no surviving next of kin - bona vacantia LEGISLATION CITED : Wills, Probate & Administration Act 1898 (NSW), s 61B Phillip Barry Meisner as Administrator of the Estate of the late Clara Lea Sweetapple (P) The Crown (D1) Odded Markovitz (D2) PARTIES : Moshe Anmot (D3) Shoshana Ratz (D4) Henia Izbetzki (D5) Zohar Chen (D6) Eti Peleg (D7) FILE NUMBER(S) : SC 1429/04 COUNSEL : K M E Viglianti (P) SOLICITORS : Diamond Peisah & Co (P) Diana Perla & Associates (Ds)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

AUSTIN J

FRIDAY 26 MARCH 2004

1429/04 PHILLIP BARRY MEISNER AS ADMINISTRATOR OF THE ESTATE OF THE LATE CLARA LEA SWEETAPPLE V THE CROWN & ORS JUDGMENT (Ex tempore; revised 14 April 2004) 1 HIS HONOUR: The plaintiff, who is the administrator of the estate of the late Clara Lea Sweetapple moves by summons for a declaration that the real estate of the deceased located in New South Wales (being a property at 83 Oakley Road, North Bondi) devolves to the Crown as bona vacentia, and for an order that the costs of the application be paid from the estate of the deceased. 2 The deceased resided in Sydney for a substantial period, but in about 1976 she left Australia permanently and took up residence in Israel. She was domiciled there at the date of her death on 27 November 1995. 3 She left assets in Australia comprising the Bondi property, valued for the purposes of the estate at $1.1 million, and two Commonwealth Bank of Australia cheque accounts containing over $570,000. 4 I am satisfied by the evidence before me that proper investigations have been made here and in Israel to ascertain whether the deceased left a will, and the result of those inquiries is that she did not do so. 5 An application was made in Israel for a succession order which was issued on 31 May 2001. By that order the District Court of Tel Aviv declared that the next of kin of the deceased were six persons named in the orders. Without naming them now, it is sufficient for me to say that they are three first cousins of the deceased, the only child of another first cousin of the deceased, and the two children of another first cousin of the deceased. The orders of the Israeli court were to the effect that the three first cousins were each entitled to a one fifth part of the estate, the sole child of the fourth first cousin was entitled to a one fifth part and the two children of the fifth first cousin were entitled each to a one tenth part. 6 As I have indicated, part of the property left by the deceased in Australia was land in New South Wales. For the purposes of private international law, land is immovable property. The beneficial succession on intestacy to immovable property is determined by the lex situs, whereas the beneficial succession on intestacy to movable property is determined by the law of the domicile of the intestate at the time of death: see P E Nygh and Martin Davies, Conflict of Laws in Australia (7th ed, 2002) p 679-680. That is to say, in the present case the law of New South Wales governs the devolution on intestacy of the Bondi property while the law of Israel, the law of the place of the deceased's domicile at the time of her death, governs the entitlement to movable property. The application before me is confined to the real estate. 7 The plaintiff has been authorised by power of attorney granted by the six beneficiaries identified in the Israeli succession order to make an application for letters of administration in this Court. Letters of administration were granted to him on 20 June 2002 and the administration bond was dispensed with on the ground that there were no debts of the estate. 8 The plaintiff's investigations confirm the decisions which appear to be implicit in the succession orders made by the Israeli Court, that is to say, that on the evidence there appears to be no closer relative of the deceased than her first cousins. Thus, the evidence indicates that the deceased did not marry and there is no surviving spouse. A marriage search conducted in this jurisdiction indicates no registered marriage. The deceased's immediate family, her mother, father and sister, predeceased her and death certificates are in evidence. The maternal aunts and uncles of the deceased predeceased her. There is no written evidence of the death of some of the aunts and uncles, except that it is believed that they perished in the concentration camp in Auschwitz in Poland during the Second World War. 9 The fraternal aunt of the deceased, who died in January 1970, had five children who, in some cases, had children and through that branch of the family tree the first cousins, identified as beneficiaries in Israel, and their children have been identified. 10 In evidence before me is a family tree which tends to confirm that there are no other claims more closely connected with the deceased than the first cousins. 11 Under s 61B of the Wills Probate and Administration Act 1898 (NSW), entitlement to distribution of the estate of a person who dies intestate is determined by a number of rules. First, if the intestate leaves a husband or wife but no children, the estate is held in trust for the husband or wife. That, as I have said, is not the case here. 12 Secondly, so far as relevant here, where the intestate leaves no husband or wife and no children, then subs 61B(5) provides that the estate is held for the benefit of the intestate's parents, but there are no surviving parents in this case. Where that is so, subs (6) provides that the estate is then held for the following persons living at the death of the intestate and in the following order and manner: (a) first, for the brothers and sisters of the whole blood - but there are no surviving brothers and sisters; (b) in that case, secondly, in trust for brothers and sisters of the half blood - but there are no persons in that category; (c) thirdly, in trust for the grandparents of the intestate - but the grandparents have not survived the deceased; (e) fourthly, in trust for the uncles and aunts of the intestate, being brothers or sisters of the whole blood of a parent of the intestate - but there are none of these surviving the deceased; (f) fifthly, in trust for the uncles and aunts of the intestate, being brothers and sisters of the half blood of a parent of the intestate - but there are none of these surviving the deceased. 13 Subs 61B(7) states that in default of any person taking an interest under subs (2) to (6), the estate shall belong to the Crown as bona vacantia and in place of any right to escheat. I am satisfied on the evidence that there being no person taking any interest under subs (2) to (6), it is appropriate to make a declaration to the effect that the real estate of the deceased belongs to the Crown as bona vacantia. 14 Subs 61B(8) states that the Crown may, out of property devolving on it as bona vacantia, make provision for dependents of the intestate and other persons for whom the intestate might reasonably have been expected to make provision. It is open to the second to seventh defendants to make an application to the Crown under that provision. So far as the law is concerned, however, the correct conclusion on the evidence is that the Bondi property belongs to the Crown. 15 My orders are these: I make a declaration in terms of paragraph 1 of the summons and an order in terms of paragraph 3. **********