Application by NSW Trustee and Guardian; Estate of Esme Veronica Hennessy
[2019] NSWSC 340
•28 March 2019
Supreme Court
New South Wales
Medium Neutral Citation: Application by NSW Trustee and Guardian; Estate of Esme Veronica Hennessy [2019] NSWSC 340 Hearing dates: 28 March 2019 Date of orders: 28 March 2019 Decision date: 28 March 2019 Jurisdiction: Equity Before: Henry J Decision: 1. The Plaintiff be at liberty to distribute the estate of the late Esme Veronica Hennessy upon the following basis:
2. The Plaintiff’s costs be paid out of the estate of Esme Veronica Hennessy on an indemnity basis.
a) 1/7th to the children of Denis Joseph Hennessy: Joseph Hennessy born 1920, and Leo Hennessy born 1923.
b) 1/7th to the daughter of Catherine Hennessy: Marie Patience Martin.
c) 1/7th to the children of Timothy Leo Hennessy: Marie Lorraine Mahon, Pauline Mary Unsworth, Colin Joseph Hennessy, Peter John Hennessy and the estate of Carmel Hennessy Pope.
d) 1/7th to the daughter of Margaret Mary Cruise: Marie Cruise.
e) 1/7th to the children of Gordon Hennessy: Roslyn Gai Glassop and David Wayne Hennessy.
f) 1/7th to the children of Eric Hennessy: Robert Breen Hennessy and Margaret Anne Irving.
g) 1/7th to the children of Hilda Rochester: Lorna Irene Sykes and Myrle Rochester.Catchwords: SUCCESSION - judicial advice application - Trustee Act 1925 (NSW) s 63 - administration of trust property – Benjamin Order Legislation Cited: Succession Act 2006 (NSW) s 131(3)
Trustee Act 1925 (NSW) s 63
Uniform Civil Procedure Rules 2005 (NSW) r 54.3(2)Cases Cited: Application by NSW Trustee & Guardian (Estate of the late Marko Sijakovic) [2012] NSWSC 1532
Gonzales v Claridades [2003] NSWSC 508
In re Benjamin Neville v Benjamin [1902] 1 Ch 723
NSW Trustee and Guardian (Estate of Peter Urso) [2013] NSWSC 903
Re Meyerstein [2009] VSC 564
West v Weston [1998] NSWSC 419Category: Principal judgment Parties: NSW Trustee and Guardian (Plaintiff) Representation: Counsel:
Solicitors:
V Hartstein (Plaintiff)
NSW Trustee and Guardian (Plaintiff)
File Number(s): 2019/17566 Publication restriction: Nil
Judgement - EX Tempore (REvised)
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This matter involves an application for judicial advice under s 63 of the Trustee Act 1925 (NSW) and r 54.3(2) of the Uniform Civil Procedure Rules 2005 (NSW) regarding the distribution of the net estate of the late Esme Veronica Hennessey.
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The deceased died intestate on 20 April 2012. She was not ever married or in a de facto marriage, she did not have any children and had no brothers and sisters or surviving parents or grandparents.
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The deceased’s estate is valued at approximately $219,635.29.
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The issue faced by the plaintiff, the NSW Trustee and Guardian, is the identification of the persons to whom the deceased estate should be distributed. The plaintiff’s enquires have now been completed and it wishes to complete the administration of the deceased's estate.
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The plaintiff has gone to great lengths to identify any surviving children of the aunts and uncles of the deceased in accordance with the provisions of Part 4.3 of the Succession Act 2006 (NSW) for the purposes of identifying any beneficiaries of the estate. Section 131(3) of the Succession Act provides that if a brother or sister of a parent of the intestate predeceased the intestate leaving a child who survived the intestate, the child is entitled to the deceased’s parents presumptive share and, if there are more than 2 or more children, they share equally.
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The searches undertaken by the plaintiff have identified six paternal aunts and uncles of the deceased who, between them, had 13 children living at the date of the deceased's death. The searches have also identified one maternal aunt who had two children living at the date of the deceased's death.
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The plaintiff seeks to have the deceased’s estate distributed in seven equal shares to the surviving children of the seven paternal and maternal aunts and uncles of the deceased. Each of the seven shares will be divided equally amongst the children of each of the seven paternal and maternal aunts and uncles.
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The plaintiff has come to the Court for advice as there are some uncertainties that have arisen as a result of its searches about the factual matters relevant to the distribution of the deceased's estate. These include discrepancies in relation to the names of the paternal aunts and uncles, some of which are different as between the names recorded on their parents’ death certificates and their own death certificates.
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Further, some persons who appear to be entitled to a share in the estate have not sent any declaration of kinship to the plaintiff. It is possible that they may have died and that there are other family members who are not aware of their deaths.
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Given the modest size of the estate and all the searches conducted to date, I accept that it is not feasible to conduct further searches.
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The Court may make an order, known as a “Benjamin Order” (In re Benjamin Neville v Benjamin [1902] 1 Ch 723), allowing the plaintiff to distribute the estate on the factual basis as currently ascertained. The principles relating to the making of a Benjamin Order were summarised by Hallen J in NSW Trustee and Guardian (Estate of Peter Urso) [2013] NSWSC 903.
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In Gonzales v Claridades [2003] NSWSC 508, Campbell J said:
“The Court can, in some circumstances, where there is uncertainty about a factual matter relevant to the distribution of a deceased's estate, make an order that the executors are at liberty to distribute on some particular factual basis."
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In West v Weston [1998] NSWSC 419, Young J, as he then was, took the view that even for a Benjamin Order, all that is required is that the Court should be satisfied that it is probable that the persons entitled on intestacy have been ascertained and that no further reasonable inquiries should be made which would improve the state of the evidence.
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The view of Young J in West v Weston [1998] NSWSC 419 has been supported and applied in subsequent cases: Re Meyerstein [2009] VSC 564 and in Application by NSW Trustee & Guardian (Estate of the late Marko Sijakovic) [2012] NSWSC 1532.
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Based on the information set out and exhibited to the affidavit of Amy Malaquin affirmed 17 January 2019 and the submissions of counsel, I am satisfied that the evidence shows, on the balance of probabilities:
that at least the substantial majority, if not all, of the beneficiaries of the estate of the deceased have been ascertained; and
there are no further reasonable enquiries that should be made and would be likely, in any event, to identify any further beneficiary.
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Accordingly, I am satisfied that it is appropriate to make the orders sought by the plaintiff that the estate of the deceased be distributed in seven equal shares.
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Accordingly, I make the orders claimed in the summons in the terms of the short minutes of order handed up to the Court and initialled by me and dated today in the following terms:
The Plaintiff be at liberty to distribute the estate of the late Esme Veronica Hennessy upon the following basis:
1/7th to the children of Denis Joseph Hennessy: Joseph Hennessy born 1920, and Leo Hennessy born 1923.
1/7th to the daughter of Catherine Hennessy: Marie Patience Martin.
1/7th to the children of Timothy Leo Hennessy: Marie Lorraine Mahon, Pauline Mary Unsworth, Colin Joseph Hennessy, Peter John Hennessy and the estate of Carmel Hennessy Pope.
1/7th to the daughter of Margaret Mary Cruise: Marie Cruise.
1/7th to the children of Gordon Hennessy: Roslyn Gai Glassop and David Wayne Hennessy.
1/7th to the children of Eric Hennessy: Robert Breen Hennessy and Margaret Anne Irving.
1/7th to the children of Hilda Rochester: Lorna Irene Sykes and Myrle Rochester.
The Plaintiff’s costs be paid out of the estate of Esme Veronica Hennessy on an indemnity basis.
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Decision last updated: 29 March 2019
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