Application by Little (Estate of Bruce Frederick Little)

Case •

[2023] NSWSC 402

•

19 April 2023

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Application by Little (Estate of Bruce Frederick Little) [2023] NSWSC 402
Hearing dates: 19 April 2023
Date of orders: 19 April 2023
Decision date: 19 April 2023
Jurisdiction:Equity
Before: Richmond J
Decision:

Benjamin order made. Costs to be paid out of the estate on an indemnity basis.

Catchwords:

SUCCESSION — administration of estates —Benjamin Order made

Cases Cited:

Application by NSW Trustee & Guardian (Estate of Edward Charles Turner) [2020] NSWSC 944

Application by NSW Trustee & Guardian (Estate of the late Marko Sijakovic) [2012] NSWSC 1532

Application by Walsh (Estate of Robert Charles Walsh) [2020] NSWSC 976; 29 ASTLR 45

Application of NSW Trustee & Guardian (Estate of the late Betty Kathleen Foster) [2014] NSWSC 1857; 14 ASTLR 436

Bickford v Benson [2015] WASC 161

NSW Trustee and Guardian (Estate of Peter Urso) [2013] NSWSC 903

The Estate of Janet Beris Jackwitz [2018] NSWSC 515

West v Weston (1998) 44 NSWLR 657; [1998] NSWSC 419

Texts Cited:

Learmonth, Alexander, Charlotte Ford, Julia Clark and John Ross Martyn, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (21st ed, 2018, Sweet & Maxwell)

Category:Principal judgment
Parties: Geoffrey Robert Little (Plaintiff)
Representation:

Counsel:
Mr F Salama and Ms C Angus (Plaintiff)

Solicitors:
WMD Law (Plaintiff)
File Number(s): 2022/00319835

JUDGMENT

  1. The plaintiff, Geoffrey Robert Little, as the Executor of the Estate of his father the Late Bruce Frederick Little (Estate) seeks what is known as a “Benjamin order” relating to the distribution of the Estate as one of the beneficiaries, his brother Christopher Thomas Little, cannot be located.

  2. By way of Summons filed on 25 October 2022, the plaintiff seeks an order that he would be justified in either:

  1. distributing the share of the Estate due to Christopher Little held by the plaintiff as trustee of the Estate:

  1. as to 50% to the plaintiff; and

  2. as to 50% to Russell Bruce Little; or

  1. alternatively, continuing to hold the share of the Estate due to Christopher Little for a period of 3 years from the date of the Court order at which time if Christopher Little has not come forward, the plaintiff is then entitled to distribute the share of the Estate due to Christopher Little in the manner set out in (1) above.

  1. The plaintiff also seeks an order that the costs of the proceedings be paid by the Estate on an indemnity basis.

Background

  1. The Late Bruce Frederick Little (the Deceased) had four children with Lorraine Little (who passed away in 1967), being:

  1. Russell Bruce Little (born 8 February 1951) (now 72 years old);

  2. Janiece Little (born 9 January 1955, deceased 20 February 2003);

  3. Christopher Thomas Little (born 5 April 1953) (would now be 70 years old);

  4. the plaintiff, Geoffrey Robert Little (born 19 July 1960) (now 62 years old).

  1. With no disrespect intended, the children of the Deceased will be referred to in this judgment by their first names, except for Geoffrey who will be referred to as the plaintiff.

  2. The children of the Deceased grew up in Bankstown with their parents, the Deceased and Lorraine Little, until her passing in 1967.

  3. The Deceased remarried, to Muriel, and in 1968 or 1969 they moved to Blakehurst with Russell, Janiece and the plaintiff. Neither Russell nor the plaintiff can recall whether Christopher lived with them in Blakehurst for any period.

  4. In about 1975, the plaintiff recalls Christopher returning to live at the family home in Blakehurst, having in the interim lived at their grandfather’s home for about 5 years. The plaintiff recalls Christopher and Muriel often having disagreements, and understood that this caused Christopher to move out of the home in Blakehurst.

  5. In 1981, Russell recalls attending the plaintiff’s 21st birthday party and speaking with Christopher at that event. Russell has not heard from or seen Christopher since 1981, nor could he recall having any discussions with either the plaintiff or Janiece about Christopher.

  6. In around 1983, Christopher contacted the plaintiff and asked to stay with him and the plaintiff agreed. The plaintiff was at that time living in shared premises with other flatmates and gave evidence that “Christopher was difficult to live with and after disagreements with my flat mates, he moved out.” The plaintiff understood that Christopher had many friends and tended to live with one or more of those friends for periods of time before moving on and, thus, Christopher did not appear to the plaintiff to reside in a constant place, but rather tended to move around quite frequently.

  7. In around 1985 or 1986 Christopher invited the plaintiff to lunch at a restaurant in Brighton‑Le‑Sands. The plaintiff could not recall how Christopher gained contact with him, but believes Christopher may have obtained his phone number or contacted him through Janiece.

  8. From 1990 to about 1995, Christopher lived with Janiece in Tamarama in New South Wales. The plaintiff recalls seeing Christopher at Janiece’s home on a few occasions throughout that time and that Christopher told the plaintiff that he was working as a painter. However the plaintiff gave evidence that they did not have a close relationship. After Christopher moved out of Janiece’s home, the plaintiff was not told by Christopher where he was going or how he could be contacted.

  9. The plaintiff saw Christopher by chance after that time on two occasions. First, he saw Christopher at a pub in Balmain in or about 1998 and had a conversation with him in which Christopher said he was staying at a backpackers’ hostel down the road. Second, he saw Christopher at a pub in Broadway in about 2000, but did not have a lengthy conversation with him.

  10. The plaintiff has not had any contact with Christopher since 2000. After that time, Janiece told the plaintiff that she had met up with Christopher a few times but that Christopher eventually stopped communicating with her due to “an issue which arose from his relationship with his then girlfriend”.

  11. The plaintiff is not aware of any communication between the Deceased and Christopher.

  12. The plaintiff gave evidence that he recalled having a conversation with the Deceased in 2010 in words to the following effect:

[The Deceased]: “Do you think I should leave Chris out of my will? We don’t even know where he is.”

[The plaintiff]: “It’s up to you Dad. If you leave him in the Will, Chris may just think ‘great I have some money’ or he may realise that you left him in your Will to acknowledge that he is part of our family and you love him. He might magically show up when you die”.

  1. The Deceased passed away on 11 September 2014. His funeral took place later that month. The plaintiff advertised a funeral notice in the Sydney Morning Herald, published on 15 September 2014. The funeral notice was published in the South Coast Register on 15 September 2014. The plaintiff did not have any means of contacting Christopher to inform him directly about the funeral.

  2. The Deceased’s Will dated 23 April 2009 (Will) left his entire Estate to his three sons, the plaintiff, Russell and Christopher, in equal shares. Under cl 3 of the Will, if any of them should predecease the Deceased, then that child’s share is to be divided equally among the other surviving siblings.

  3. The administration of the Estate was completed by the plaintiff with the assistance of Douglas Paisley & Emery Solicitors on or about 30 September 2015. At that time, the net distribution was $875,718.69. The plaintiff instructed his then solicitors to set aside a contingency fund of $10,000 for the estate’s ongoing legal costs. The plaintiff and Russell received a distribution of $288,572.89 each. Christopher’s distribution was retained in a controlled moneys account operated by Douglas Paisley & Emery Solicitors from the date of distribution to 15 August 2022.

  4. On 15 August 2022, the plaintiff gave instructions for the amount to be transferred to the trust fund of WMD Law. WMD Law received the amount of $312,848 which accounted for:

  1. The funds due to Christopher plus accrued interest in the amount of $302,832;

  2. The contingency fund in the amount of $10,000; and

  3. A refund received by the Estate from the Department of Justice in the amount of $16.

  1. As Executor, the plaintiff has conducted various searches to attempt to locate Christopher, including to confirm whether he had predeceased his father, the Deceased.

  2. The plaintiff’s previous solicitors, Douglas Paisley & Emery Solicitors, conducted the following searches on his behalf:

  1. Advertising published in newspapers circulating in every State and Territory in Australia including The Australian, Sydney Morning Herald, Daily Telegraph, The Courier Mail, The Herald Sun, The NT News, The Mercury, The West Australian and The Canberra Times;

  2. Electoral Roll Search dated 22 April 2016 in each State and Territory of Australia;

  3. National Property Ownership Search dated 22 April 2016 in each State and Territory of Australia;

  4. ASIC and Business Names: Personal Name Search dated 22 April 2016;

  5. Correspondence with the Departments of Corrections/Justice in each State and Territory of Australia sent on (or around) 2 November 2019;

  6. Correspondence with the Department of Foreign Affairs on 2 November 2019;

  7. InfoTrack Person Locator Search dated 26 July 2019 – result for Christopher Thomas Little at 3/5 Haviland Avenue, Blackheath NSW in 2008, but the managing real estate agent did not have any records;

  8. Ryerson Index Search dated 27 November 2019 – result for a Death Notice for a Christopher Little aged 63 published in the Northern Star Lismore on 13 August 2016 – however, the date of birth in the Death Notice did not match Christopher’s date of birth (5 April 1953);

  9. Searches with Births, Deaths & Marriages in each State and Territory of Australia;

  10. Correspondence with the Department of Defence.

  1. In June 2022, the plaintiff instructed his current solicitors, WMD Law to act on his behalf and they have conducted the following searches:

  1. National Property Ownership Search dated 23 August 2022;

  2. Electoral Roll Search dated 24 August 2022;

  3. Person Locator Search Results dated 24 August 2022;

  4. ASIC Personal Name Search dated 23 August 2022;

  5. Ryerson Index Search dated 23 August 2022.

  1. On 8 September 2022, the plaintiff’s solicitors instructed Australian Legal Support Services Pty Ltd to conduct a “skip trace” in respect of Christopher Thomas Little. On or around 15 September 2022, a Private Investigator, Robert John Silec, employed by Australian Legal Support Services Pty Ltd conducted the following searches:

  1. A name and address database search – the latest record for Christopher Thomas Little was from 2012;

  2. A reserve telephone database search – two mobile phone numbers were listed to Christopher Thomas Little in 2012, but have since been disconnected;

  3. An ABN register search;

  4. A property search;

  5. Searches with online rental enquiry databases;

  6. Credit file search – the latest record for Christopher Thomas Little was from 2010;

  7. Searches for social networking accounts;

  8. Searches on various search engines;

  9. Searches of the White Pages; and

  10. Searches of the Australian Securities and Investments Commission.

  1. Except where specified above, the searches conducted by Douglas Paisley & Emery Solicitors, WMD Law and Australian Legal Support Services Pty Ltd have all been unsuccessful in locating Christopher Thomas Little.

  2. The plaintiff and Russell have each given evidence that, based upon their present assets, they each have sufficient funds to repay any amount that they receive under the proposed Benjamin order in the event that Christopher is later located and claims his entitlement.

Relevant principles

  1. In Application by NSW Trustee & Guardian (Estate of the late Marko Sijakovic) [2012] NSWSC 1532 at [23]–[25], Hallen J set out the relevant principles for the making of a “Benjamin order” as follows:

[23]   In Williams, Mortimer & Sunnucks, Executors, Administrators and Probate, 17th ed, (1993), at 938, the learned authors state:

"It may happen that distribution is held up because the representatives cannot be sure who is entitled. Thus a person's right to share in the estate may turn on the question whether another predeceased the testator, predeceased him without issue, and it may be uncertain on the facts whether this happened. In these circumstances, the representatives may apply to the court for a "Benjamin" order - Re Benjamin [1902] 1 Ch 723, that is, an order permitting them to distribute the estate on the footing that certain events have or have not happened. The effect of such an order is to relieve the representatives of liability in their capacity as representatives should the hypothesis on which they are to be permitted to distribute turn out to be wrong. Thus, where a beneficiary who was thought to have predeceased a testator subsequently appears, he will not be entitled to bring a claim against the representatives for his share of the estate. He may, however, be entitled to claim in equity against the beneficiaries who have been wrongly paid or perhaps bring a tracing action against the recipients of the share - Re Diplock [1951] AC 251."

[24]   In Gonzales v Claridades [2003] NSWSC 508; (2003) 58 NSWLR 188, at [75], Campbell J (as his Honour then was) said:

"The Court can, in some circumstances, where there is uncertainty about a factual matter relevant to the distribution of a deceased estate, make an order that the executors are at liberty to distribute on some particular factual basis - eg that a missing beneficiary under the testator's will was unmarried and predeceased the testator without issue (Re Benjamin [1902] 1 Ch 723). Parry & Clark, The Law of Succession, 10th edition (1996) page 471-2 say:

"The particular footing set out in the order is, of course, based on probable inferences from the proved facts, but the order does not constitute a positive declaration of rights (Hansell v Spink [1943] Ch 396, 399; Re Green's Will Trusts [1985] 3 All ER 455 at 462 ("the true view is that a Re Benjamin order does not vary or destroy beneficial interests. It merely enables trust property to be distributed in accordance with the practical probabilities.")) and, according, it does not prevent any missing beneficiary (if he subsequently appears) from pursuing his remedy against a recipient of the deceased's assets. Sometimes a Benjamin Order is made after an inquiry by the court has proved inconclusive, but such an order may be made without any prior inquiry by the court if suitable advertisements for a missing beneficiary produce no claims, or even without any advertisements if the inference from the proved facts is irresistible (as in Re Green's Will Trusts, supra (by her will T, who died in 1976, gave her estate to her son B; B had been a gunner in a bomber which went missing in a raid on Berlin in 1943; nothing ever heard of the bomber or its crew; irresistible inference crew perished, though T believed when she died that B was still alive)."

(Some footnotes omitted) See also Hardingham Neave & Ford, Wills and Intestacy in Australia and New Zealand, 2nd edition, paragraph [3604].

76 The basis for making such orders was explained by Mahoney J in Wilcox v Poole [1974] 2 NSWLR 693. At 697, his Honour quoted from Daniell's Chancery Practice, 8th edition, pages 1539-40,

"There are some cases in which, although the interest of a party in the fund is not absolute, but subject to a contingency, it has been ordered to be paid out at once, the contingency being remote; and formerly the parties receiving the money entered into a recognizance or undertaking to refund it, in the event of the happening of the contingency; but it is no longer the practice, on making orders presuming death, to require security to refund. This has been done when the right of the parties for subject to the contingency of a female who is past the age of child-bearing, having children, or where a person has been presumed to be dead."

Mahoney J at 697 described the principle as,

"a beneficial one which may enable parties to have the early enjoyment of property to which they will, as a matter of practical certainty, ultimately become entitled".

At 699, his Honour said:

"the principle ... does not affect the legal rights of the parties in the strict sense, and concedes that there is no entitlement as of right to the distribution of the property in question. The principle is one which is invoked merely by way of convenience in administration."

[25]   In Lempens v Reid [2009] SASC 179, Gray J, at [32], said:

"The effect of a Re Benjamin order is to enable the executor to distribute the estate to those members of the class which have been ascertained at the time of distribution, whilst ensuring protection of the executor if a person entitled to a portion of the estate subsequently appears. If such a person does appear, he or she is not entitled to make a claim against the executor for that portion but may claim against beneficiaries who have been paid incorrectly. If a Re Benjamin type order were considered appropriate in the circumstances of these proceedings, it may be necessary for the Court to order that further enquiries be undertaken, to ascertain whether members of the class can be located, prior to any distribution of the gift contained in the subject clause." (Omitting citations)

  1. In NSW Trustee and Guardian (Estate of Peter Urso) [2013] NSWSC 903 at [39]–[40], Hallen J expanded on the above principles, stating:

[39]   Thus, in a case where a trustee is faced with a practical difficulty in establishing the existence of possible beneficiaries or other claimants, the Court will give a direction to the trustee enabling it to distribute the trust property on an assumption of fact that there is no such beneficiary or claimant. In the case where a beneficiary has disappeared in circumstances where the absence leads to an inference of death, an order may be made that the trust estate be distributed on the basis that the beneficiary is dead: Re Reynolds Trusts (No 2) [1942] QWN 40; Nolan As Administratrix of the Estate Of Barbara Nolan, deceased v Nolan [2011] WASC 224 at [33].

[40]   As Nourse J explained in Re Green's Will Trusts [1985] 3 All ER 445, at 446:

"The true view is that a Re Benjamin order does not vary or destroy beneficial interests. It merely enables trust property to be distributed in accordance with the practical probabilities..."

At 462, his Lordship added:

"I do not think that the question whether such an order should be made depends on whether or not there will be administrative inconveniences caused by the trustees retaining the fund. I think it depends on whether in all the circumstances the trustees ought to be allowed to distribute and the beneficiaries to enjoy their apparent interests now rather than later.”

  1. See also the recent decisions of Hallen J in Application by NSW Trustee & Guardian (Estate of Edward Charles Turner) [2020] NSWSC 944 and Application by Walsh (Estate of Robert Charles Walsh) [2020] NSWSC 976 to the same effect.

  2. In Application of NSW Trustee & Guardian (Estate of the late Betty Kathleen Foster) [2014] NSWSC 1857; 14 ASTLR 436, Brereton J (as his Honour then was) stated at [4]-[5]:

A ‘Benjamin order’ … permits the executor or administrator of a deceased’s estate to distribute the estate on a particular factual basis notwithstanding that there is some uncertainty about a factual matter relevant to the distribution, such as the existence of particular beneficiaries, protecting the executor from liability if a person entitled to a portion of the estate subsequently appears, without affecting the legal rights of such a person who, though not entitled to make a claim against the executor for that portion, may claim against beneficiaries who have been incorrectly paid [see generally Gonzales v Claridades [2003] NSWSC 508; (2003) 58 NSWLR 188, [75] (Campbell J); Lempens v Reid [2009] SASC 179, [32] (Gray J); Application by NSW Trustee and Guardian (Estate of the late Marco Sijakovic) [2012] NSWSC 1532, [23]-[25] (Hallen J)].

A Benjamin order does not vary or destroy beneficial interests, but merely enables trust property to be distributed in accordance with the practical probabilities [Hansell v Spink [1943] Ch 396, 399; Re Green’s Will Trusts; Fitzgerald-Hart and another v Attorney General and others [1985] 3 All ER 455, 462]. Although the particular basis set out in the order reflects inferences from the proved facts, the order is not a positive declaration of rights [D H Parry & J B Clark, The Law of Succession, (10th ed 1996, Sweet & Maxwell) at 471-2] …

  1. In Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (21st ed, 2018, Sweet & Maxwell) at [65-18], the learned authors state:

Distribution may be held up because the representatives cannot be sure who is entitled. Thus a person’s right to share in the estate may turn on the question whether another predeceased the testator, or predeceased him without issue, and it may be uncertain on the facts whether this happened. In these circumstances, the representatives may apply to the court for a ‘Benjamin’ order, that is, an order permitting them to distribute the estate on the footing that certain events have or have not happened. This relieves the representatives of liability in their capacity as representatives should the hypothesis on which they are to be permitted to distribute turn out to be wrong. Thus, where a beneficiary who was thought to have predeceased a testator subsequently appears, he will not be entitled to bring a claim against the representatives for his share of the estate. He may, however, be entitled to claim in equity against the beneficiaries who have been wrongly paid or perhaps bring a tracing action against the recipients of the share. (citations omitted)

  1. The jurisdiction of this Court to make a Benjamin order is not on the basis of proof, but on the basis of the practical probabilities of the facts as they are known to the Court at the time of making the order: Bickford v Benson [2015] WASC 161.

  2. In West v Weston (1998) 44 NSWLR 657 at 662; [1998] NSWSC 419, Young J (as his Honour then was) stated that all that is necessary is that the Court should be satisfied that it is probable that the persons entitled have been ascertained. The Court should also be satisfied that no reasonable further enquiries could be made which would improve the state of the evidence.

  3. The size of the estate may be relevant to determining whether the making of further enquiries would be an unreasonable impost on the estate: The Estate of Janet Beris Jackwitz [2018] NSWSC 515 at [31] per Kunc J; Application by the NSW Trustee & Guardian (Estate of Edward Charles Turner) [2020] NSWSC 944 at [47] per Hallen J.

Consideration

  1. As mentioned above, all that is necessary for a Benjamin order is that the Court is satisfied that it is probable that the persons entitled under the Will of the Deceased have been ascertained and that no reasonable further enquiries could be made which would improve the state of the evidence. I am so satisfied. In my view the extensive searches which have been conducted make it probable that Christopher pre-deceased his father, the Deceased, so that the persons entitled under the Will have been ascertained. I am also satisfied that no reasonable further enquiries could be made which would improve the state of the evidence and, given the relatively small size of the Estate, I consider it would be an unreasonable impost on the Estate to require further enquiries to be made.

  2. Accordingly, I make the following orders:

  1. That the Plaintiff would be justified in distributing the Estate of the Late Bruce Frederick Little ("the Deceased") to the Plaintiff and Russell Bruce Little in equal shares upon the basis that the Deceased was survived by the Plaintiff and Russell Bruce Little but not by Christopher Thomas Little, without prejudice to the rights of any person to trace his, her or their share into the hands of the recipient, if it be established that they survived the Deceased or otherwise as the case may be.

  2. The Plaintiff's costs of the proceedings be paid out of the Deceased's Estate on an indemnity basis.

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Decision last updated: 19 April 2023

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