Re Kilby & Ors [2016] NSWSC 1433

Supreme Court New South Wales

Medium Neutral Citation: Re Kilby & Ors [2016] NSWSC 1433 Hearing dates: 7 October 2016 Date of orders: 07 October 2016 Decision date: 07 October 2016 Jurisdiction: Equity Before: Slattery J Decision: Administration de bonis non of the estate of the late Stanley Henry Kilby granted to the plaintiffs. Order the plaintiffs' costs of the application be paid out of the estate on the indemnity basis. Catchwords: WILLS, PROBATE AND ADMINISTRATION – three plaintiffs, deceased's daughter and two granddaughters, are beneficiaries of deceased's estate – probate of deceased's estate originally granted to deceased's brother-in-law, Ronald Caldwell, who has since died – Ronald Caldwell remains the registered proprietor of estate's principal asset, a property in Caringbah – plaintiffs make reasonable attempts to search for, but cannot find, Ronald Caldwell's executor – whether plaintiffs or another suitable person should be appointed as administrators of the deceased's estate. Legislation Cited: Conveyancing Act 1919, s 32(1) Imperial Acts Application Act 1969 (NSW), s 13 Probate and Administration Act 1898 (NSW), ss 33, 40, 63, 74, 75 Real Property Act 1900, s 93 Trustee Act 1925 (NSW), ss 6, 70 Cases Cited: Burke v Dawes (1938) 59 CLR 1 Crowle Foundation v NSW Trustee and Guardian [2010] NSWSC 647 Darrington v Caldbeck (1990) 20 NSWLR 212 Drummond v Registrar of Probates (SA) (1918) 25 CLR 318 Firns v Firns [2000] NSWSC 396 Hamilton v Hamilton (1913) 33 WN (NSW) 46 In the Estate of French [1910] P 169 In the Estate of Slattery (1909) 9 SR (NSW) 577 In the Goods of William Bridger (1878) 4 PD 77 In the Will and Codicil of Robert De Little [1883] 9 VLR (IP & M) 32 Letterstedt v Broers [1884] App Cas 371 Maddock v Registrar of Titles (Vic); Miller v Registrar of Titles (Vic) (1915) 19 CLR 681 Re Pratt (Deceased) (1963) 80 WN (NSW) 1416 Wangford v Wangford (1704) 1 Salk. 299 Texts Cited: K Mason and L G Handler, Succession Law and Practice NSW (1985, Butterworths), [1181.4.3] G Weir, "Administration de bonis non" (1936) 10 ALJ 13 J R Martyn and N Caddick QC, Williams, Mortimer & Sunnucks on Executors, Administrators and Probate (20th ed 2013, Sweet & Maxwell) Category: Procedural and other rulings Parties: First Plaintiff: Eve Anne Kilby Second Plaintiff: Blaire Louise Kilby Third Plaintiff: Gail Jensen Defendant: n/a Representation: Counsel