De bonis non administratis

Stanley Henry Kilby, and his wife Beryl had two children, Gail and Ross. Stanley died in 1978 survived by his wife Beryl who died in August 2000.

The principal asset of Stanley’s estate was a house in Caringbah (“the Caringbah property”). Stanley made a Will in 1967 naming Ronald Caldwell his executor. Stanley’s Will gave Beryl a life estate in the Caringbah property. After her death the house passed to Gail and Ross.

Stanley’s son Ross died in February 2015. Ross’s two daughters, Blaire and Eve were the administrators of his will and residuary beneficiaries of his estate. Both survived Ross.

Stanley died in 1978, Beryl in 2000 and Ronald Caldwell in 2004. Since Stanley died various family members have occupied the Caringbah property. Beryl occupied the property between 1978 and 2000. Ross lived in the property between 2000 and his death in 2015. Blaire has lived there since she was 16. Blaire and Eve now live in the property.

Gail, Blaire and Eve wish to have the deceased’s estate finally administered. However the deceased’s estate needs an administrator. Ronald Caldwell as the executor of Stanley’s estate is still the registered proprietor of the Caringbah property.

Extensive searches have been unable to locate Ronald Caldwell’s executor, who would have inherited executorship of Stanley’s Will. Court Probate records show that no one has taken out probate of Ronald’s estate. Gail, Blaire and Eve now seek to remedy this situation.

After Beryl died in 2000 her life estate came to an end, Ronald’s executorial duties either revived or continued so the estate could be distributed in accordance with the Stanley’s will.

Notwithstanding that there has been delay of some 16 years, the Caringbah property needs to be transferred to someone who can deal with it in accordance with Stanley’s Will.

Legislation and the Court’s inherent jurisdiction provides a broad power to appoint an administrator where:

  • the chain of representation is broken,
  • no executor can be identified,
  • there are executorial duties to be performed

The Court’s jurisdiction to make a grant of letters of administration de bonis non is therefore enlivened.

De bonis non administratis, is a legal term for assets remaining in an estate after the death or removal of the estate administrator. The replacement administrator is called the administrator de bonis non and distributes the remaining assets.

The most common cause of a grant of de bonis non by a court is where the administrator dies. However, it can also be granted in cases where the chain of representation is broken.

The Court was satisfied that Eve, Blaire and Gail, should be appointed administrators of the estate of the late Stanley Henry Kilby, and that the land at Caringbah and all the property and assets subject to the trusts of the will of the late Stanley Henry Kilby  vest in them.

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