NSW Trustee and Guardian v State of New South Wales [2015] NSWSC 1121

Supreme Court New South Wales

Medium Neutral Citation: NSW Trustee and Guardian v State of New South Wales [2015] NSWSC 1121 Hearing dates: 10 August 2015 Decision date: 12 August 2015 Jurisdiction: Equity Division Before: Hallen J Decision: The Court:

(a) Determines that it is satisfied that Rigas Pitsios died before Angeliki Pitsios.

(b) Declares that the whole of the estate of Rigas Pitsios passes to Angeliki Pitsios, to be held by the second Defendant in accordance with s 61B(6)(a) of the Wills Probate & Administration Act 1898 (NSW), that is to say, on statutory trust for the brothers and sisters of the whole blood of Angeliki Pitsios.

(c) Orders that the costs of the Plaintiff, calculated on the indemnity basis, be paid out of the estate of Rigas Pitsios.

(d) Orders that the costs of the second Defendant, calculated on the indemnity basis, be paid out of the estate of Angeliki Pitsios.

(e) Orders that the costs of the submitting appearance of the first Defendant be paid out of the estate of Rigas Pitsios. Catchwords: SUCCESSION – Intestacy – Rights of succession – Son and mother found dead at home some weeks after death – Whether uncertainty as to the order of their deaths – Degree of proof – Whether s 35 Conveyancing Act 1919 (NSW) is applicable – Whether evidence of survivorship – Balance of probabilities – Section 35 not applicable if evidence available from which court can be satisfied as to the order of deaths – Determination of questions in administration of estate Legislation Cited: Births, Deaths and Marriages Registration Act 1995 (NSW) Conveyancing Act 1919 (NSW) Evidence Act 1995 (NSW) NSW Trustee and Guardian Act 2009 (NSW) Succession Act 2006 (NSW) Succession Amendment (Intestacy) Act 2009 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Wills, Probate and Administration Act 1898 (NSW) Cases Cited: Abu-Arab v NSW Trustee & Guardian [2014] NSWSC 954 Perpetual Trustee Co Ltd v Commissioner of Stamp Duties (NSW) (1980) 10 ATR 589; (1980) 80 ATC 4073 Public Trustee v Kehagias [2009] NSWSC 972 Re Boyd (No 2) (Supreme Court (NSW), Young J, 19 July 1995, unrep) Re Carri-Ann Rowlings; Fraser v Thom [2010] VSC 626 Re Comfort [1947] VLR 237; [1947] ALR 288 Re Plaister; Perpetual Trustee Company v Crawshaw (1934) 34 SR (NSW) 547 Re Zappullo deceased [1966] VR 390 Wing v Angrave (1860) 8 HL Cas 183; (1860) 11 ER 397 Texts Cited: P E Nygh and M Davies, Conflict of Laws in Australia, (7th ed 2002, LexisNexis Butterworths) Category: Principal judgment Parties: NSW Trustee and Guardian in its capacity as administrator of the Estate of Rigas Pitsios (Plaintiff)