Application by NSW Trustee & Guardian (Estate of Edward Charles Turner)

[2020] NSWSC 944

Supreme Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

In Chambers and on the papers

Date of orders:

28 July 2020

Decision date:

28 July 2020

Jurisdiction:

Equity

Before:

Hallen J

Decision:

See [48] – [50].

Catchwords:

SUCCESSION – Administration of estates – The deceased died intestate in 2012 – Executor to determine persons entitled on intestacy – Administrator uncertain as to identity of deceased’s paternal grandfather – Determination of matters in doubt to enable distribution – Administrator seeking order giving liberty to distribute the estate on particular basis – Plaintiff justified in distributing the estate – Benjamin Order made – Order also made that the Plaintiff’s costs of the proceedings, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate of the deceased

Legislation Cited:

Succession Act 2006 (NSW), ss 103, 128, 130, 131, Ch 4

Cases Cited:

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

Application by NSW Trustee and Guardian (Estate of the late Frederick John Vermaak) [2016] NSWSC 1436

Application by NSW Trustee and Guardian (Estate of the late Peter Czmil) (2013) 12 ASTLR 148; [2013] NSWSC 1683

Application by NSW Trustee and Guardian; Estate of Esme Veronica Hennessy [2019] NSWSC 340

Application of Harnett and Cutts [2016] NSWSC 427

Application of NSW Trustee & Guardian (2014) 14 ASTLR 436; [2014] NSWSC 1857

Application of NSW Trustee & Guardian; Estate of Dudley Keith Vaughn [2019] NSWSC 850

Bickford v Benson [2015] WASC 161

In re Benjamin; Neville v Benjamin [1902] 1 Ch 723

In the Will and Estate of Werner Ludwigk Meyerstein deceased [2009] VSC 564

NSW Trustee & Guardian; In the Estate of Francis [2014] NSWSC 123

NSW Trustee & Guardian; In the Estate of Rex [2015] NSWSC 841

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

Public Trustee v Kehagias [2009] NSWSC 972

Re Green’s Will Trusts; Fitzgerald-Hart v Attorney General [1985] 3 All ER 455

The Estate of Janet Beris Jackwitz [2018] NSWSC 515

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

Wilcox v Poole [1974] 2 NSWLR 693

Texts Cited:

Alexander Learmonth, 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:

NSW Trustee & Guardian (Plaintiff)

Representation:

Counsel:
H Morrison (Plaintiff)

Solicitors:
NSW Trustee & Guardian (Plaintiff)

File Number(s):

2020/00150061

Judgment

Introduction

1. HIS HONOUR: These proceedings concern the estate of Edward Charles Turner (the deceased), who died intestate on 22 September 2012.

2. On 17 January 2013, this Court granted letters of administration on intestacy to the NSW Trustee and Guardian which is the Plaintiff in these proceedings.

3. The sole question that arises relates to how the deceased’s estate should be distributed. The Plaintiff has been unable to identify the deceased’s paternal grandfather.

4. The estimated net value of the deceased’s estate, as at 24 April 2020, is $160,502. It is a small estate.

5. In a case where there is uncertainty about a factual matter relevant to the distribution of a deceased person’s estate, the Court may, in certain circumstances, make an order that the administrator is at liberty to distribute the estate on some particular factual basis — e.g. that a missing beneficiary predeceased the deceased with or without issue. It is this type of order that is termed “a Benjamin order”. It derives from the Chancery decision of Joyce J in In re Benjamin; Neville v Benjamin [1902] 1 Ch 723. The jurisdiction to make such an order is not founded on proof, but rather on the basis of the practical probabilities of the facts, known to the court at the time of making the order: Bickford v Benson [2015] WASC 161 at [13] (Jenkins J).

6. The question whether such an order should be made does not depend on whether there will be administrative inconveniences caused by the administrator retaining the estate funds, but depends on whether, in all the circumstances, the administrator ought to be allowed to distribute, and the beneficiaries allowed to enjoy, their apparent interests sooner rather than later: Re Green’s Will Trusts; Fitzgerald-Hart v Attorney General [1985] 3 All ER 455 at 462 (Nourse J).

7. In Wilcox v Poole [1974] 2 NSWLR 693, Mahoney J (as his Honour then was), 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”.

8. This is just such a case and the Plaintiff seeks the following relief:

“An order that the Plaintiff would be justified in distributing the estate of late Edward Charles Turner (‘the deceased’) upon the basis that the deceased was survived by the persons named in the schedule to this Summons in the shares indicated in that schedule, 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.

Alternatively, an order that an inquiry be held as to what persons are entitled to succeed to the Estate of the late Edward Charles Turner (‘the deceased’) as his next of kin on intestacy living at his death and whether any of them have since died and if so who are their legal personal representatives.

Directions as to the holding of the inquiry and as to the joinder of any defendants to these proceedings.

Such further or other orders or directions as the Court deems appropriate.

An order that the costs of the proceedings be paid out of the deceased’s Estate on the indemnity basis.”

9. The proceedings were listed in the Succession List on 5 June 2020. In accordance with directions made on that date, the evidence was completed, and submissions were sent to the Court, on 18 June 2020. As I was satisfied that there was no requirement for a contradictor, I have dealt with the case, in Chambers, with the agreement of the Plaintiff’s legal representatives, on the papers. Orders, when made, will enable the Plaintiff to administer the estate.

Background Facts

10. I have taken the following facts from the affidavit sworn 24 April 2020 of Ms Sandra Macmillan, a solicitor employed by the NSW Trustee and Guardian. There is no reason to doubt the facts, as for the most part, they are corroborated by relevant documents. In this regard, the Plaintiff has undertaken a variety of enquiries and the searches and copy documents form an exhibit to the affidavit of Ms Macmillan. I am satisfied that the Plaintiff has carried out all of the necessary, and proper, investigations in the circumstances of this case and that there are no other practicable, or useful, further searches likely to reveal more information.

11. The deceased was born in New South Wales, in February 1935 and at the date of his death, was aged 77 years.

12. The deceased’s Birth Certificate records that his mother was Vera Ivy Lillian Turner (née Parker) and that his father was Edward Ernest Turner.

13. The deceased’s mother was born in July 1910. His father was born in July 1896. Other evidence reveals that they were married in December 1939 and that there was only one child of the marriage, being the deceased. The deceased’s mother died in August 1973 and his father died in August 1980.

14. There is no evidence of the identity of the paternal grandfather of the deceased. The deceased’s father’s Birth Certificate does not record the identity; the identity is not recorded on the deceased’s parents’ Marriage Certificate; nor is it recorded on the deceased’s father’s Death Certificate.

15. The deceased’s paternal grandmother was Esther Ethel Long (née Turner) who was born in November 1875 and died in April 1962.

16. The deceased’s maternal grandfather was William Henry Parker who was born in February 1885. The deceased’s maternal grandmother was Lily Ellen Parker (née Brownfield) who was born in July 1891. They were married in November 1908. Lily Ellen Parker died in October 1919, and William Henry Parker died in January 1955.

17. It is impossible for any of the grandparents of the deceased to have been alive at the date of the deceased’s death in 2012.

18. There is no evidence that enables the Court to determine that the deceased was ever married; that he had ever been in a de facto relationship; or that he had any issue. Indeed, searches of the records of the NSW Registry of Births, Deaths and Marriages show no record of any marriage of the deceased during the period between 1951 and 2012. Other searches show that there was no record of any birth, or any adoption, or legitimation, of a child, by the deceased, during the period 1947 to 2013.

19. The deceased’s Death Certificate confirmed that he had no spouse or children.

20. A search of the records of the NSW Registry of Births, Deaths and Marriages also shows no record of registration of any relationship over the period 2010 to 2017. As well, there is an affidavit sworn 23 November 2012 negativing the existence of a de facto spouse by Ms Irene Clout, who knew the deceased for 26 years, and who was the person who oversaw the unit where the deceased had resided, and who had visited him daily, for five days a week.

21. The deceased had no siblings. However, his paternal grandmother (Esther Ethel Long) was shown to have had a number of other children with William Whipp Long. Each of those children would be an aunt, or an uncle, of the deceased (at least of the half-blood). The children were William Whipp Long (Junior), who was born in April 1905, and who died in May 1976; Jean Evelyn Burton (née Long), who was born in June 1906, and who died in December 1992; Neville George Arthur Long, who was born in June 1907, and who died in November 1993; and Alfred Herbert Long, who was born in May 1909, and who died in May 2003.

22. The deceased’s maternal grandparents are shown to have had a number of children other than the deceased’s mother, who would be an aunt, or an uncle, of the deceased. These were Benjamin Arthur William Parker, who was born in April 1912, and who died in December 1939; William Henry Parker, who was born in October 1914, and who died in June 1916; and Alice May Williams (née Parker), who was born in May 1917, and who died in June 1997.

23. As all of the uncles and aunts of the deceased predeceased the deceased, it is next necessary to turn to the issue of the uncles and aunts. William Whipp Long Jnr had one child, namely, Neil Francis Long, who was born in November 1930 and who died in May 1965. The Death Certificate of Neil Francis Long (Ex SMA/128) shows one child, “Graeme N”, who was recorded as being 11 years old at the date of his father’s death.

24. Jean Evelyn Burton had three children, namely Neville Samuel Burton, who was born in October 1928, and who died in October 1951; Nona Jean Kesby (née Burton), who was born in December 1930, and who died in August 2015; and Barry William Burton who was born in November 1936, and who survived the deceased.

25. Neville George Arthur Long died without issue.

26. Alfred Herbert Long had two children namely Bruce William Long, who was born in May 1942 and who survived the deceased; and Denis Harold Long, who was born in May 1949 and who survived the deceased.

27. Benjamin Arthur William Parker died without issue as did William Henry Parker.

28. Alice May Williams had six children, namely Joyce Walsh (née Williams), who was born in April 1937 and who died in May 2007; Jean Cowie (née Williams), who was born in April 1937 and who survived the deceased, but who died in March 2013; Carol Ann Fisk (née Williams), who was born in February 1945 and who survived the deceased; Keith Owen Williams, who was born in February 1947 and who died in May 2011; Helen May Bailey (née Williams) who was born in February 1948 and, and who survived the deceased; and Linda Bowmaker (née Williams), who was born in August 1953, and who survived the deceased.

29. This Court granted Probate of the Will of Jean Cowie on 31 July 2013 to her sister, Linda Bowmaker. She divided her estate, in different proportions, between certain named beneficiaries.

30. As stated, the identity of the deceased’s paternal grandfather on the evidence, cannot be established as he was not known to the deceased, or, so it would seem, to members of the deceased’s family. In this regard, other than what is not stated in the documentary searches, to which reference has already been made, Ms Macmillan has spoken to each of Linda Bowmaker, Barry Burton and Bruce William Long, and each has indicated that she and he, respectively, did not know who the deceased’s paternal grandfather was (although Bruce William Long indicated that he was surprised that the deceased’s father’s father was not William Whipp Long (Senior)).

31. Furthermore, each of the deceased’s surviving relatives has indicated in her, or his, respective “Declaration of Kinship” provided to the NSW Trustee and Guardian that she and he, respectively, did not know the identity of the deceased’s paternal grandfather.

32. A notice of intended distribution of the estate was published in the Sydney Morning Herald on 25 January 2013.

33. If the Court makes a Benjamin order, the Plaintiff proposes to distribute the estate of the deceased, after payment of administration expenses, to the cousins of the deceased who survived him. As such, one third of the net estate will be shared equally between the issue of Jean Evelyn Burton, namely Barry William Burton and the estate of Nona Jean Kesby; one third of the net estate will be shared equally between the issue of Alfred Herbert Long, namely Bruce William Long and Denis Harold Long; and one third of the net estate will be shared equally between the issue of Alice May Williams, namely, Carol Ann Fisk, Helen May Bailey, Linda Bowmaker and the estate of Jean Cowie.

Submissions

34. Mr H Morrison of counsel who appeared for the Plaintiff, submitted:

“… there is a sufficient basis for the Court to grant the relief sought at paragraph [1] of the Summons, without any need for the Court to make any directions in accordance with paragraphs [2] and [3] of the Summons. However, alternatively, the Court could order that an inquiry of some kind take place (say for instance, the publishing of a further notice of intended distribution) before ordering that NSWTG would be justified in distributing the estate in the manner proposed.

The small size of the estate is also relevant. Whilst NSWTG cannot be completely certain that there are [no] other beneficiaries through the paternal grandfather’s line, the amount available in the estate means that further inquiries would impose an unreasonable impost on the estate.

…

The usual order for costs made with respect to Benjamin Order applications is that the costs of applicant be paid from the estate on the indemnity basis. These proceedings were appropriately brought due to the uncertainty about the deceased’s paternal grandfather.”

Determination

35. Since the deceased was domiciled in New South Wales at the time of his death, it is the law of New South Wales that determines the succession to his intestate estate: Public Trustee v Kehagias [2009] NSWSC 972 at [11] (McLaughlin AsJ); Application by NSW Trustee and Guardian (Estate of the late Peter Czmil) (2013) 12 ASTLR 148 at 150; [2013] NSWSC 1683 at [4] (Black J).

36. The scheme of distribution on intestacy as at the date of the deceased’s death, in 2012, is as set out in Ch 4 of the Succession Act 2006 (NSW) (the Act).

37. Section 103 of the Act provides that “[a] reference in this Chapter to an entitlement to the whole of the intestate estate is a reference to so much of the estate as remains after payment of all such funeral and administration expenses, debts and other liabilities as are properly payable out of the estate”.

38. Section 128 of the Act provides that “[t]he parents of an intestate are entitled to the whole of the intestate estate if the intestate leaves (a) no spouse, and (b) no issue” and “[i]f there is only one surviving parent, the entitlement vests in the parent and, if both survive, it vests in equal shares”.

39. Section 130 of the Act provides:

(1) The grandparents of an intestate are entitled to the whole of an intestate estate if the intestate leaves:

(a) no spouse, and

(b) no issue, and

(c) no parent, and

(d) no brother or sister, or issue of a deceased brother or sister.

(2) If there is only one surviving grandparent, the entitlement vests in the grandparent and, if 2 or more survive, it vests in them in equal shares.

40. Section 131 of the Act provides:

(1) The brothers and sisters of each of an intestate’s parents are entitled to the whole of the intestate estate if the intestate leaves:

(a) no spouse, and

(b) no issue, and

(c) no parent, and

(d) no brother or sister, or issue of a deceased brother or sister, and

(e) no grandparent.

(2) If no brother or sister of a parent of the intestate predeceased the intestate leaving a child who survived the intestate, then:

(a) if only one survives—the entitlement vests in the surviving brother or sister, or

(b) if 2 or more survive—the entitlement vests in them in equal shares.

(3) 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 parent’s presumptive share and, if there are 2 or more children, they share equally.

41. In Alexander Learmonth, Charlotte Ford, Julia Clark and John Ross Martyn, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (21st ed, 2018, Sweet & Maxwell) at [65-18], the learned editors 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)

42. In Application by NSW Trustee & Guardian (Estate of the late Marko Sijakovic) [2012] NSWSC 1532 at [23]–[25], and in NSW Trustee and Guardian (Estate of Peter Urso) [2013] NSWSC 903 at [38]–[40], I discussed Benjamin orders in some detail. It is not necessary to repeat what I wrote in those cases.

43. (I note that what I wrote was followed by Kunc J in NSW Trustee & Guardian; In the Estate of Francis [2014] NSWSC 123 at [2] and in NSW Trustee & Guardian; In the Estate of Rex [2015] NSWSC 841 at [8]; by Pembroke J in Application of Harnett and Cutts [2016] NSWSC 427 at [2]–[3]; by Slattery J in Application by NSW Trustee and Guardian (Estate of the late Frederick John Vermaak) [2016] NSWSC 1436 at [8]–[9]; and by Henry J in Application by NSW Trustee and Guardian; Estate of Esme Veronica Hennessy [2019] NSWSC 340 at [11] and in Application of NSW Trustee & Guardian; Estate of Dudley Keith Vaughn [2019] NSWSC 850 at [11].)

44. In addition, as was noted by Brereton J (as his Honour then was), in Application of NSW Trustee & Guardian (2014) 14 ASTLR 436 at 438 [4]–[5]; [2014] NSWSC 1857 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] …”

45. Although I have considered whether the problem facing the Plaintiff could be solved by conducting a next of kin inquiry, as was suggested as an alternative in West v Weston (1998) 44 NSWLR 657 at 662 (Young J); [1998] NSWSC 419, I do not think that it would be an appropriate course to follow because of the impracticability of publishing advertisements overseas, which advertisements would have no realistic prospect of identifying any next of kin of the deceased who might be entitled to share in the distribution of the deceased’s estate.

46. Yet, I consider it appropriate to follow Young J’s view, as did Ross J in In the Will and Estate of Werner Ludwigk Meyerstein deceased [2009] VSC 564 at [20]–[21], that even for a Benjamin order, all that is necessary is that the court should be satisfied that it is probable that the persons entitled (in this case, on intestacy) have been ascertained and that no reasonable further inquiries could be made which would improve the state of the evidence. I am so satisfied. The time has come to put an end to further search.

47. I am satisfied that it is sufficiently likely that all reasonable searches have been carried out to ascertain the identity of the deceased’s paternal grandfather and that “no reasonable further inquiries could be made which would improve the state of the evidence”. If that were not enough, I am of the view, as was Kunc J in The Estate of Janet Beris Jackwitz [2018] NSWSC 515 at [31], that even if it would be theoretically possible for further inquiries to be made, given the small size of the estate “it would be an unreasonable impost on the estate to require further inquiries to be made against the possibility of finding very distant relatives”.

48. In these proceedings I am satisfied, and therefore, order, that, 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, the Plaintiff would be justified in distributing the estate of the deceased on the following basis:

1. As to 2/12ths of the deceased’s net estate to the Estate of Nona Jean Kesby;

2. As to 2/12ths of the deceased’s net estate to Barry William Burton;

3. As to 2/12ths of the deceased’s net estate to Bruce William Long;

4. As to 2/12ths of the deceased’s net estate to Denis Harold Long;

5. As to 1/12th of the deceased’s net estate to the Estate of Jean Cowie;

6. As to 1/12th of the deceased’s net estate to Carol Ann Fisk;

7. As to 1/12th of the deceased’s net estate to Helen Bailey;

8. As to 1/12th of the deceased’s net estate to Linda Williams.

49. I order that the Plaintiff’s costs of the proceedings, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate of the deceased.

50. I order that the Summons otherwise be dismissed and that the return date of 3 August 2020 be vacated.

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Decision last updated: 29 July 2020