Irene de Wild (“the deceased”), died on the South Coast of New South Wales, on 26 September 2017, aged 74 years, leaving about $118,000 in bank accounts in New South Wales; Irene was survived by her husband, Hermanus (“the Applicant”), a resident of New Zealand.
Hermanus commenced preparations to apply for a grant of administration; however, he discovered a will dated 19 September 2017 ( “the proposed Will”) prepared by Irene which, made some provision for him, but favoured her brother, Ian (“the defendant”).
The Applicant’s solicitor (Anthony J Fondacaro), investigated the circumstances surrounding the making of the proposed will; after making inquiries of an attesting witness and procuring the Hospital’s clinical notes for examination Fondacaro found that Irene was unlikely to have had testamentary capacity at the time she executed the document or to have known and approved of its contents.
Ian formally acknowledged that the will was invalid, and consented that Hermanus should be granted administration of the deceased’s estate.
Upon an application of the rules of intestacy for which Chapter 4 of the Succession Act 2006 NSW provides, the whole of the deceased’s estate would pass to Hermanus as her widower.
In January 2018 the Hermanus published formal notice of his intention to apply for letters of administration of the deceased’s estate; In July 2019 Hermanus filed a summons seeking the following orders:
’…that letters of administration be granted to him, as the spouse of the deceased, for the administration of her estate as an intestate estate; and
… that the purported will of the deceased dated 19 September 2017 be passed over and declared invalid on the basis that the deceased lacked testamentary capacity to execute the will and/or because she did not know and approve of the contents of the will.’
Although the Court can make a grant to a non-resident, generally for the protection of those who are or may be, beneficiaries or creditors of a deceased estate it
‘prefers to have estates administered by somebody who is present in the jurisdiction, able personally to attend to his or her duties within the jurisdiction and, by reason of his or her presence in the jurisdiction, amenable to court orders designed to enforce obligations attending a grant of probate or administration’
The Court confirmed that as Hermanus was resident outside New South Wales the Registry was unable to grant letters of administration to him, and was required to appoint an attorney in NSW to whom the Registry could, upon the Attorney’s application, grant letters of administration.
In response Hermanus filed an amended summons in which:
(i) the “plaintiff” is described as “Anthony James Fondacaro as attorney for Hermanus de Wild”; and
(ii) the application for a grant of administration seeks an order to the effect “that letters of administration of the Estate [of the Deceased] be granted to the plaintiff in his capacity as attorney for the spouse of the deceased who is living outside the jurisdiction, the deceased having died intestate”; and
(iii) an affidavit affirmed by Anthony Fondacaro annexing a copy of an “enduring power of attorney” executed by the applicant in favour of Mr Fondacaro is expressed to be
”limited to authorising and directing my attorney to act on my behalf in respect of the estate of my late wife, Irene Anne de Wild (the ‘estate’), including, but not limited to, obtaining a grant of letters of administration of the estate, conducting legal proceedings on my behalf in respect of the estate and completing the administration of the estate”.