Official Trustee in Bankruptcy v Robin Ann Jones & Anor [2003] NSWSC 343

New South Wales Supreme Court

CITATION : Official Trustee in Bankruptcy v Robin Ann Jones & Anor [2003] NSWSC 343 HEARING DATE(S) : 10/04/03 JUDGMENT DATE : 10 April 2003

JUDGMENT OF : Gzell J DECISION : Declaration that land ceased to be held as executor and was held beneficially prior to bankruptcy.

CATCHWORDS : SUCCESSION - Executors and Administrators - Title and estate of - Official Trustee in Bankruptcy as administrator of bankrupt executor's estate wishing to sell land - Whether land devised to executor held executorially or beneficially before executor declared bankrupt - Whether mechanisms in the Wills, Probate and Administration Act 1898, s 46E(1)(a) and s 83(1) and the Trustee Act 1925, s 11(1) permissive only - Whether mechanisms apply where executor and beneficiary are one and the same Wills, Probate and Administration Act 1898 LEGISLATION CITED : Trustee Act 1925 Administration and Probate Act 1915 (Vic) CASES CITED : Re Thorne and Sherson's Contract [1920] VLR 50 PARTIES : Official Trustee in Bankruptcy - Plaintiff Robin Ann Jones & Paul Joseph Maher - Defendants FILE NUMBER(S) : SC 1801/03 COUNSEL : Mr C Simpson - Plaintiff Mr D Ash - Defendants SOLICITORS : Freidman Reeves, Lawyers Reid & Reid, Solicitors

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

THURSDAY 10 APRIL 2003

1801/03 OFFICIAL TRUSTEE IN BANKRUPTCY v ROBIN ANN JONES & ANOR JUDGMENT (Ex tempore) 1 I have before me a summons for a declaration that, in events which have occurred, Leo Edmund Maley, deceased, as executor to whom probate of the will of his mother, Laura Ellen Maley, deceased, dated 25 February 1942, was granted by the Court on 3 October 1951, ceased to hold a property known as 58 National Park Street, Hamilton East, being the land comprised in Deed of Conveyance dated 17 September 1941 between David Francis Whyte and Very Whyte as vendors and Laura Ellen Maley as purchaser and registered no 593 book 1901, as such executor and held the land beneficially as the owner of the legal estate in fee simple prior to his becoming a bankrupt on 15 December 2000. 2 On 25 September 1951 Leo Maley swore an affidavit for lodgment with application for administration of his late mother's estate declaring the deceased had no debts. Thereafter, as I said, probate of the estate of his mother was granted to him. By her will, Laura Ellen Maley left her entire estate to her son, subject to payment of her debts. 3 Leo Maley died on 18 December 2000. The Public Trustee was granted Letters of Administration of his estate on 19 February 2002. On 14 November 2002 the Public Trustee entered into a contract with the defendants to sell the property to them. 4 As the will of the late Laura Ellen Maley contained no provisions expressly creating trusts, the property was vested in Leo Maley as personal representative of the deceased and he was obliged to deal with it in that capacity. Those obligations subsisted until he had performed his executorial duties. 5 The lapse of time between grant of probate in 1951 and declaration of bankruptcy in 2000 raises a presumption that estate debts had been paid or extinguished and those executorial duties came to an end before Leo Maley was declared bankrupt.