Re Estate Schwartz, Deceased:; Application of Gellert; Gellert v Bentwood and Schwartz [2015] NSWSC 1484

Supreme Court New South Wales

Medium Neutral Citation: Re Estate Schwartz, Deceased:; Application of Gellert; Gellert v Bentwood and Schwartz [2015] NSWSC 1484 Hearing dates: 4, 10 and 19 June; 29 July; and 25 August 2015 Date of orders: 15 October 2015 Decision date: 09 October 2015 Jurisdiction: Equity - Probate List Before: Lindsay J Decision: Subject to allowing the parties an opportunity to be heard as to the form of relief to be granted, the estate of the deceased, EV Schwartz, is to be administered on the basis that her son did not cause, or contribute to, her death so as to attract the operation of the forfeiture rule. Catchwords: EQUITY – Trusts and trustees – Discretionary trusts – Creation and effect generally – Administration of discretionary trust created by will – Application for judicial advice or direction – Partial administration order – Uniform Civil Procedure Rules 2005 NSW, Part 54 – Trustee Act 1925 NSW, section 63

SUCCESSION – Wills, probate and administration – Administration of discretionary trust created by will – Application for judicial advice or direction – Partial administration order - Operation of forfeiture rule- Uniform Civil Procedure Rules 2005 NSW, Part 54 – Trustee Act 1925 NSW, section 63 Legislation Cited: Forfeiture Act 1995 NSW Trustee Act 1925 NSW Uniform Civil Procedure Rules 2005 NSW, Part 54 Cases Cited: Adair v New River Co (1805) 11 Ves 429; 32 ER 1153 Ahmed v Chowdhury [2012] NSWSC 1452 at [47] Cockburn v Thompson (1809) 16 Ves Jun 321; 33 ER 1005 Ahmed v Chowdhury [2012] NSWSC 1452 at [27]-[51] Application by Marilyn Joy Cottee [2003] NSWSC 47 at [35] Application of Perpetual Trustee Company [2003] NSWSC 1185 at [14]-[20] British American Tobacco services Ltd v Cowel (representing the Estate of McCabe, deceased) (2002) 7 VR 524; [2003] HCA Transcript 384 Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147 Duke of Bedford v Ellis [1901] AC1 at 8-11 Gellert v Viselle [2011] NSWSC 560 John v Rees [1970] Ch 345 at 369H – 374E Macedonian Orthodox Community Church St Petka Incorporated v Bishop Petar (2008) 237 CLR 66 at 91 [64] -92[66]) Re Estate Late Chow Cho-Poon; Application for Judicial Advice [2013] NSWSC 844 at [167]-[183]. Troja v Troja (1994) 33 NSWLR 269 Texts Cited: AG Nevill and AW Ash, Equity Proceedings with Precedents (NSW) (Butterworths, Sydney, 1981), paragraph [1204] Category: Principal judgment Parties: Robert Gellert (Plaintiff) Sophie Bentwood (First Defendant) Jerry Leslie Schwartz (Second Defendant) Representation: Counsel: MS Willmott SC (Plaintiff) T Rollo, solicitor, on 19 June 2015; and BA Coles QC on 25 August 2015 (Ms Bentwood) BW Walker SC on 10 June 2015; AP Cheshire on all occasions, but 4 June 2015; and C Goodhand on 19 June 2015 (Dr Schwartz)