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NSW – Estates – Can a beneficiary be evicted?

August 1, 2018 By By Lawyers

In the recent case of Kennedy v Kennedy [2018] NSWSC 1087 Davies J struck out a defence and granted liberty for the executors to obtain default judgement and issue a writ of possession where one of five adult beneficiaries had been residing in the deceased’s house for about two years since the date of death, despite being requested by the executors to vacate. His Honour observed that:

[7] In my opinion the defences filed by the defendant do not disclose any defence to the claim by the executors. Where there is no lease in place, except if a claim was made in the nature of some form of constructive trust, it is doubtful if there could be any defence to the right of the executors to get in all of the estate property including by obtaining possession of the land.

It is the duty of the executor or administrator to get in the estate. If necessary the executor or administrator can apply to the court for a declaration and/or a writ of possession.

This applies where a beneficiary is in occupation of real property owned by the estate without permission and refuses to vacate.

This case has been added to the Estates chapter of By Lawyers 101 Succession Answers (NSW).

Filed Under: New South Wales, Publication Updates, Wills and Estates Tagged With: assets, beneficiaries, estates, permission, possession, property, recovery, refusal to vacate

Assets and liabilities list

July 13, 2017 By By Lawyers

A new ‘tear off’ assets and liabilities list has been added to the retainer instructions Wills, powers of attorney precedent. This list may assist clients when they wish to provide more detail in their planning, as well retained by the client with their personal documents.

Filed Under: Australian Capital Territory, Legal Alerts, New South Wales, Northern Territory, Publication Updates, Queensland, South Australia, Tasmania, Victoria, Western Australia, Wills and Estates Tagged With: assets, liabilities, list, Wills

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