Poulos v Pellicer In the Estate of Culina [2004] NSWSC 504

New South Wales Supreme Court

CITATION : Poulos v Pellicer In the Estate of Culina [2004] NSWSC 504 HEARING DATE(S) : 31 May 2004 JUDGMENT DATE : 11 June 2004

JURISDICTION: Equity Division Probate List JUDGMENT OF : Windeyer J at 1 DECISION : Defendant has no interest in proceedings - defence struck out.

CATCHWORDS : SUCCESSION - probate and letters of administration - application for letters of administration cta - general caveat filed by defendant against a grant in the estate - caveator white of son of deceased involved in Family Law proceedings against son - son not entitled to benefit under last will of motion but sole beneficiary under earlier will - son did not intend to challenge later will or claim provision under Family Provision Act - evidence, casting doubt on validity of last will sufficient for contested proceedings if caveator had an interest - order for contested proceedings raising the question of interest - interest issue tried as separate question - if son took whole estate of his mother very big fund available out of which Family Court could, if appropriate, order provision for wife - whether caveator wife had interest entitling her to contest proceedings - STATUTES - interpretation - Wills Probate and Administration Act 1898 s144 - proper meaning of "any person" Family Provision Act 1982 Family Law Act 1975 s106B LEGISLATION CITED : Wills Probate and Administration Act 1898 s144 Williams and Mortimer: Executors Administrators and Probate 3rd Edition at page 339 Mortimer on Probate 2nd Edition at page 533 Arbuz v Sanderson (unreported Waddell J 24 March 1986) Bascombe v Harrison (1849) 2 Rob Ecc 118; 163 ER 1262; Dixon and Dickenson v. Allinson and Wife [1864] 3 Sw & Tr 572 Gertsch v Roberts (1993) 35 NSWLR 631. Hendy v Jenkins (1900) Vol XXI NSWR (Bankruptcy and Probate cases) 43 Hogarth v Johnson (1987) 2 Qd R 383) Hughes v Public Trustee (unreported NSWCA 19 August 1980; In Re Devoy: Fitzgerald v Fitzgerald [1943] Qd R 137 In re Seymour [1934] VLR 136 In the Goods of Crause [1858] 1 Sw & Tr 146; 164 ER 668 CASES CITED : Kipping v Ash [1845] 1 Rob Ecc 270; 163 ER 1035 Lindsay v Lindsay (1872) 42 LJ P & M 32 Lindsay v Lindsay (1872) 42 LR P & M 32 Menzies v Pulbrook [1841] 2 Curt 845; 163 ER 605 Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 Partington v Attorney General [1869] LR 4 HL 100 Re Devon; Fitzgerald v Fitzgerald [1943] SR Qd 137; Re the Estate of Aaldert Van Den Berg deceased [1999] ACTSC 82 The will and codicils of Simeon [1910] VLR 335 Whiteley v Clune: the estate of Brett Whiteley (unreported Powell J 19 March 1993) Will of Adcock (1905) 10 ALR 268 PARTIES : Archibold George Poulos (Plaintiff) Delores Pellicer (Defendant) FILE NUMBER(S) : SC 110253 of 2002 COUNSEL : Mr C M Simpson (Plaintiff) Mr M D Broun QC (Defendant) SOLICITORS : Cameron Gillingham & Boyd (Plaintiff) John R Quinn & Co (Defendant)