Application by NSW Trustee & Guardian (Estate of the late Marko Sijakovic) [2012] NSWSC 1532

Supreme Court New South Wales

Medium Neutral Citation: Application by NSW Trustee & Guardian (Estate of the late Marko Sijakovic) [2012] NSWSC 1532 Hearing dates: 30 November 2012 Decision date: 12 December 2012 Jurisdiction: Equity Division Before: Hallen J Decision: (a) The Plaintiff be at liberty to distribute the intestate estate of Marko Sijakovic upon the basis that one half of the deceased's estate will be shared equally between the issue of the deceased's brother, Vitor Sijakovic, namely Petar Sijakovic, Predrag Sijakovic, and the two children of Nenad, being Ivana Sijakovic and Ivan Sijakovic; and the other one half of the deceased's estate to Slavko Sijakovic, the only surviving issue of the deceased's brother, Vasilije Sijakovic, the deceased's brother, Svetomir Sijakovic, having predeceased the deceased and having left no issue; but, in each case, without prejudice to the rights of any children of the deceased or those claiming through them to trace his, her, or their, share into the hands of the recipients if it were ever established that they survived the deceased or otherwise as the case may be. (b) The Plaintiff be at liberty to distribute the one sixth share of the estate passing to Predrag Sijakovic to the beneficiary, or beneficiaries, entitled to his estate, he having survived the deceased but having died on 15 August 2008. (c) The Plaintiff's costs of the proceedings, calculated on the indemnity basis, be paid out of the deceased's Estate. Catchwords: SUCCESSION - Intestacy - Wills, probate and administration - Next of kin inquiry - Deceased domiciled in New South Wales - Distribution - Benjamin Order Legislation Cited: NSW Trustee and Guardian Act 2009 Property (Relationships) Act 1984 Public Trustee Act 1913 Uniform Civil Procedure Rules 2005 Wills Probate and Administration Act 1898 Cases Cited: Benjamin, Re; Neville v Benjamin [1902] 1Ch 723 Boyd (No 2), Re (NSWSC, 19 July 1995, unreported) Clarke v McFarlane [2008] NSWSC 432 Gonzales v Claridades [2003] NSWSC 508; (2003) 58 NSWLR 188 Lempens v Reid [2009] SASC 179 NSW Trustee & Guardian v Hull [2011] NSWSC 1106 Public Trustee v Kehagias [2009] NSWSC 972 Public Trustee v Solah [1999] NSWSC 660 West v Weston [1998] NSWSC 419 Texts Cited: Williams, Mortimer & Sunnucks, Executors, Administrators and Probate , 17th ed, (1993) Category: Principal judgment Parties: NSW Trustee & Guardian (Plaintiff) Representation: Counsel: Mr M Gorrick (Plaintiff) Solicitors: NSW Trustee and Guardian (Plaintiff) File Number(s): 2010/409001