CBA v Morgan as Administrator of the estate of Smith [2014] NSWSC 536

This case concerned both possession proceedings and succession act proceedings arising out of the death of a grandmother, whose mortgage went into default immediately following her death. Her grandchildren were living in the house at the time. The deceased’s son and daughter as executors of the estate could have avoided the mortgage defaulting by making payments from the estate, at least whilst the challenge to the grandmother’s will was on foot, but chose not to do so. The bank was granted possession and the sheriff issued a notice to vacate. A stay of eviction was then granted while the succession act proceedings were heard.

In the possession proceedings, a continuation of the stay of eviction was granted for 60 days on the condition that the estate make payments to the bank pending the refinance or discharge of the mortgage. This outcome was influenced by the succession act proceedings which resulted in the grandchildren receiving the house in which they were living and the fact that the estate was large and able to pay out the mortgage, with a residue still remaining for the deceased’s son and daughter.

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