Application of NSW Trustee & Guardian; Estate of Meyerfeld [2019] NSWSC 156

Supreme Court New South Wales

Medium Neutral Citation: Application of NSW Trustee & Guardian; Estate of Meyerfeld [2019] NSWSC 156 Hearing dates: 29 June; 2 October 2018; last submission received 17 December 2018 Date of orders: 28 February 2019 Decision date: 28 February 2019 Jurisdiction: Equity Before: Parker J Decision: With respect to the intestate estate of the late John Meyerfeld, the plaintiff is justified in distributing the net proceeds of sale of real property in New South Wales, in accordance with the orders of the Court. Catchwords: SUCCESSION – executors and administrators – administration – next-of-kin-enquiry – Re Benjamin application – deceased and descendants domiciled overseas – trustee obtained grant of letters of administration of deceased's intestate estate – trustee conducted searches concerning the deceased's heirs – trustee seeks directions permitting distribution of intestate estate –monetary sum representing proceeds of share of land – choice of law regarding administration of estate – application of common law rule – succession to immovable property determined by lex situs – property located in New South Wales – choice of law regarding validity of will – whether testate or intestate – application of common law rule – validity of will determined by lex situs – consideration of change of lex situs over time – lex situs applicable as at deceased's death – conversion of property by sale of share of land – whether proceeds of sale of land treated as an immovable – proceeds substituted for an immovable by the lex situs subject to the same rights as an immovable – succession to proceeds determined by law of New South Wales – distribution of estate according to intestacy provisions of Wills, Probate and Administration Act 1898 (NSW) – distribution of estate according to the provision of certain heirs' wills found compliant with New South Wales law. Legislation Cited: Administration of Estates Act 1925 (UK), s 55(1)(x) Conveyancing Act 1919 (NSW), s 66G Hague Convention on the Conflict of Laws Relating to the Form of Testamentary Dispositions 1961 Imperial Acts Application Act 1969 (NSW), s 13 Probate and Administration Act 1898 (NSW), s 107 Succession Act 2006 (NSW), ss 2, 6, 8, 13(2), 47-50, Sch 1, cl 3(1) and cl 3(3) Wills, Probate and Administration (Amendment) Act 1977 (NSW), s 2 Wills, Probate and Administration Act 1898 (NSW), ss 7(d), 7(e), 32A-32F, 49, 50 and 61B(4) Cases Cited: Application of NSW Trustee & Guardian [2014] NSWSC 1857 Bremer v Freeman (1857) 10 Moore PC 306; 14 ER 508 In the Will of Lambe [1972] 2 NSWLR 273 Nelson v Lord Bridport (1846) 8 Beav 547; 50 ER 215 Pepin v Bruyere [1902] 1 Ch 24 Re Appln for Grant of Presumption of Death; Ex parte Jenkins (2008) 1 ASTLR 406; [2008] WASC 49 Re Benjamin; Neville v Benjamin [1902] 1 Ch 723 Re Berchtold; Berchtold v Capron [1923] 1 Ch 192 Re Collens [1986] 1 Ch 505; 2 WLR 919 Re Crook (1936) 36 SR (NSW) 186 Re Green's Will Trusts; Fitzgerald-Hart v A-G [1985] 3 All ER 455 Re Ralston [1906] VLR 689; (1906) 12 ALR 365 Re Rea; Rea v Rea [1902] 1 IR 451 Category: Principal judgment Parties: NSW Trustee & Guardian (Plaintiff) Representation: Counsel: M Pringle (Plaintiff)