The Estate of Hertslet; Richard John William d’Apice Administrator of the late John Leo Hertslet [2016] NSWSC 1240

Supreme Court New South Wales

Medium Neutral Citation: The Estate of Hertslet; Richard John William d'Apice Administrator of the late John Leo Hertslet [2016] NSWSC 1240 Hearing dates: 18 August 2016 and 2 September 2016 Date of orders: 02 September 2016 Decision date: 02 September 2016 Jurisdiction: Equity Before: Slattery J Decision: Judicial advice given that the plaintiff would be justified in treating the letter of 4 August 2014 as not being notice of a claim under either the Family Provision Act 1982 or the Succession Act 2006. Order that the plaintiff's costs of and incidental to this application be paid out of the deceased's estate. Catchwords: JUDICIAL ADVICE – TRUSTEE ACT, s 63 – letter received by the administrator of a deceased estate making money claims against the estate – the author of the letter, a son of the deceased, becomes bankrupt – son's trustee in bankruptcy gives releases but the bankrupt son's potential claims against the estate, under the Family Provision Act 1982 and the Succession Act 2006 are not the subject of the releases – administrator proposes to distribute the estate – whether the administrator would be justified in treating the letter as not being notice of a claim for provision out of the deceased's estate pursuant to Family Provision Act 1982 or Succession Act 2006. Legislation Cited: Bankruptcy Act 1966 (Cth), s 156A Probate and Administration Act 1898 (NSW), s 93 Family Provision Act 1982 (NSW) Succession Act 2006 (NSW) Trustee Act 1925 (NSW), s 63 Cases Cited: Hughes v NM Superannuation Pty Ltd (1993) 29 NSWLR 653 Macedonian Orthodox Church St Petka Inc. v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 Category: Principal judgment Parties: Plaintiff: Richard John William d'Apice, Administrator of the estate of the late John Leo Hertslet Representation: Counsel