Szekeres (as Executor of the Estate of the late Elizabeth Nadai) v The State of New South Wales [2011] NSWSC 1119 (13 September 2011)

Last Updated: 20 September 2011

Supreme Court New South Wales

Case Title:	Szekeres (as Executor of the Estate of the late Elizabeth Nadai) v The State of New South Wales
Medium Neutral Citation:	[2011] NSWSC 1119
Hearing Date(s):	13 September 2011
Decision Date:	13 September 2011
Jurisdiction:	Equity Division - Duty List
Before:	Rein J
Decision:	Declaration that the residue of the estate not dealt with by the will passes to the Crown bona vacentia pursuant to s 61B and s 61F of the Probate and Administration Act 1898 (NSW)
Catchwords:	SUCCESSION - testatrix left a will without a residuary clause - evidence shows that the testatrix had no living de facto partner, spouse, offspring or close relatives at the time of death - residue of the estate devolve upon the Crown bona vacantia pursuant to s 61B(7) of the Probate and Administration Act 1898 (NSW) PRACTICE AND PROCEDURE - admissibility of expert evidence in the absence of acknowledgement of the Code of Conduct pursuant to rule 31.23(3) of the Uniform Civil Procedure Rules 2005 (NSW)
Legislation Cited:	Probate and Administration Act 1898 (NSW) Succession Amendment (Intestacy) Act 2009 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Meisner (as administrator of the estate of Sweetapple (deceased)) v R [2004] NSWSC 327
Texts Cited:
Category:	Principal judgment
Parties:	Dezso Szekeres (Executor of the estate of the late Elizabeth Nadai)(plaintiff) State of New South Wales (defendant)
Representation
- Counsel:	J Needham SC (plaintiff)
- Solicitors:	Geoff Osborne & Associates (plaintiff) Crown Solicitor (defendant) - submitting appearance
File number(s):	SC 2011/252200
Publication Restriction:

EX TEMPORE JUDGMENT

1. These proceedings concern the estate of the late Elizabeth Nadai and are brought by the executor of Mrs Nadai's will, Mr Dezso Szekeres, who is the plaintiff. The defendant to the summons is the State of New South Wales which has filed a submitting appearance. Ms J Needham SC appears for the plaintiff.

2. The orders that are sought by the plaintiff are a declaration that part of the estate of the testatrix which falls in the residue devolve upon the Crown bona vacantia pursuant to s 61B(7) of the Probate and Administration Act 1898 (NSW) ("the Act") and ancillary orders in relation to costs.

3. The evidence filed in support of the application is the affidavit of the plaintiff dated 13 May 2011, an earlier affidavit of the plaintiff dated 15 December 2008, an affidavit of Dr Gabor Damjanovic dated 20 April 2011 and an affidavit of Mrs Julianna Lowy OAM dated 19 January 2010. In relation to the affidavit of Dr Damjanovic, who is a lawyer admitted to practise in Hungary, Ms Needham draws my attention to the fact his affidavit is not couched in the form required for an expert report. Although a lot of his evidence is, in fact, translation of documents, some of it is in the category of expert evidence. Having regard to the nature of the evidence and the fact that there is no party who opposes the relief sought, I admit into evidence that report notwithstanding the absence of acknowledgement of the Code of Conduct pursuant to rule 31.23(3) of the Uniform Civil Procedure Rules 2005 (NSW). The evidence is directed to establishing that the testatrix, who was born in Hungary in 1918 and lived there for many years, had no close relatives in Hungary at the date of her death.

4. The evidence establishes that the testatrix's husband pre-deceased her a number of years ago, that the testatrix had no children and that she was herself an orphan who was adopted at an early age. It also establishes that the testatrix had no de facto relationship at the time of her death and, as far as can be discerned, no living relatives. It is highly unlikely that her adopted parents would have been alive in 2007 (and nothing said by the testatrix to the plaintiff or Mrs Lowy suggests that they were alive past the 1970s) and it appears that the testatrix's natural mother died in 1922.

5. The executor is a person who has had a very long and close relationship with the testatrix (and the testatrix's late husband) and he is in a position, most likely, to know if the testatrix had, at her death, any relatives, descendants or was in a de facto relationship with anyone. Mrs Lowy's evidence is to the effect that the testatrix had told her she had no offspring or other relatives.

6. The will is quite specific in a number of respects in granting various items to different individuals but it contains no residuary clause. The amount of residue, I am informed, is in the order of $300,000. In these circumstances, s 61B of the Act, taken together with s 61F of the Act, applies to so much of the estate that has not been disposed of by the will, ie the residue of the estate.

7. My attention has been drawn to the decision of Meisner (as administrator of the estate of Sweetapple (deceased)) v R [2004] NSWSC 327 in which Austin J, in considering a matter of intestacy in relation to assets of the deceased in New South Wales, discusses the provisions of s 61B of the Act and the type of evidence which is required to establish that no person is entitled to make a claim upon the estate.

8. The legislation does provide that if the moneys are forfeited to the Crown bona vacantia , the Crown may, out of the whole or any part of those moneys, provide for dependants of the testatrix, whether kindred or not, and "and any other persons for whom the intestate might reasonably have been expected to make provision": see s 61B(8) of the Act. However, as Austin J pointed out in Meisner, the statute does require the conclusion that where there is neither de facto or spouse or near relatives in existence at the time of the deceased's death, assets of the deceased not disposed of by will must pass to the Crown.

9. I should note that Division 2A of the Act, which includes s 61B and s 61F, still applies to the estate in this case as the testatrix passed away in 2007: see Schedule 2 Part 2.5[12] of the Succession Amendment (Intestacy) Act 2009 (NSW).

10. I note the affidavit of the plaintiff dated 15 December 2008, to which I referred, is a copy but the original would have been filed in the probate file, which I am informed is now in the repository. I do not require the original of that affidavit to be filed in this matter.

11. I am satisfied on the evidence that the orders which are sought should be made and the declaration sought should be made.

12. I should note I received very helpful submissions from Ms Needham, both in writing and orally.

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