Application of NSW Trustee & Guardian; Estate of Meyerfeld

[2019] NSWSC 156

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Application of NSW Trustee & Guardian; Estate of Meyerfeld [2019] NSWSC 156
Hearing dates:	29 June; 2 October 2018; last submission received 17 December 2018
Date of orders:	28 February 2019
Decision date:	28 February 2019
Jurisdiction:	Equity
Before:	Parker J
Decision:	With respect to the intestate estate of the late John Meyerfeld, the plaintiff is justified in distributing the net proceeds of sale of real property in New South Wales, in accordance with the orders of the Court.
Catchwords:	SUCCESSION – executors and administrators – administration – next-of-kin-enquiry – Re Benjamin application – deceased and descendants domiciled overseas – trustee obtained grant of letters of administration of deceased’s intestate estate – trustee conducted searches concerning the deceased’s heirs – trustee seeks directions permitting distribution of intestate estate –monetary sum representing proceeds of share of land – choice of law regarding administration of estate – application of common law rule – succession to immovable property determined by lex situs – property located in New South Wales – choice of law regarding validity of will – whether testate or intestate – application of common law rule – validity of will determined by lex situs – consideration of change of lex situs over time – lex situs applicable as at deceased’s death – conversion of property by sale of share of land – whether proceeds of sale of land treated as an immovable – proceeds substituted for an immovable by the lex situs subject to the same rights as an immovable – succession to proceeds determined by law of New South Wales – distribution of estate according to intestacy provisions of Wills, Probate and Administration Act 1898 (NSW) – distribution of estate according to the provision of certain heirs’ wills found compliant with New South Wales law.
Legislation Cited:	Administration of Estates Act 1925 (UK), s 55(1)(x) Conveyancing Act 1919 (NSW), s 66G Hague Convention on the Conflict of Laws Relating to the Form of Testamentary Dispositions 1961 Imperial Acts Application Act 1969 (NSW), s 13 Probate and Administration Act 1898 (NSW), s 107 Succession Act 2006 (NSW), ss 2, 6, 8, 13(2), 47-50, Sch 1, cl 3(1) and cl 3(3) Wills, Probate and Administration (Amendment) Act 1977 (NSW), s 2 Wills, Probate and Administration Act 1898 (NSW), ss 7(d), 7(e), 32A-32F, 49, 50 and 61B(4)
Cases Cited:	Application of NSW Trustee & Guardian [2014] NSWSC 1857 Bremer v Freeman (1857) 10 Moore PC 306; 14 ER 508 In the Will of Lambe [1972] 2 NSWLR 273 Nelson v Lord Bridport (1846) 8 Beav 547; 50 ER 215 Pepin v Bruyere [1902] 1 Ch 24 Re Appln for Grant of Presumption of Death; Ex parte Jenkins (2008) 1 ASTLR 406; [2008] WASC 49 Re Benjamin; Neville v Benjamin [1902] 1 Ch 723 Re Berchtold; Berchtold v Capron [1923] 1 Ch 192 Re Collens [1986] 1 Ch 505; 2 WLR 919 Re Crook (1936) 36 SR (NSW) 186 Re Green’s Will Trusts; Fitzgerald-Hart v A-G [1985] 3 All ER 455 Re Ralston [1906] VLR 689; (1906) 12 ALR 365 Re Rea; Rea v Rea [1902] 1 IR 451
Category:	Principal judgment
Parties:	NSW Trustee & Guardian (Plaintiff)
Representation:	Counsel: M Pringle (Plaintiff)   Solicitors: NSW Trustee & Guardian (Plaintiff)
File Number(s):	2018/41106
Publication restriction:	Nil

Judgment

1. These proceedings concern a sum of money (approximately $190,000) which represents the proceeds of the share of a property in New South Wales which formerly belonged to John Meyerfeld (“the deceased”). The application before the Court is a next-of-kin enquiry, often known as a Re Benjamin application (from Re Benjamin; Neville v Benjamin [1902] 1 Ch 723). It is an unusual case because the deceased died more than a century ago having acquired a foreign domicile and all of his descendants were, and are, domiciled overseas.

2. The deceased was born in 1839 in Treysa, in the Electorate of Hesse which was then (before German unification) a member state of the German Confederation. He emigrated and came to the then Colony of New South Wales in 1865. He was naturalised in 1874. At some point around 1882 he left the Colony and returned to Europe, settling in what was then the German Empire. He died in Berlin in 1907.

3. The monies which are the subject of this application derive from the sale of a property which was owned by the deceased and others as tenants in common. Presumably the deceased’s interest was acquired between 1865 and 1874. The property was sold in 2011 by trustees who were appointed for that purpose. The evidence does not identify where the property was or any information about the deceased’s interest in it.

4. In September 2014 the plaintiff (“the Trustee”) obtained a grant of letters of administration of the deceased’s unadministered estate in New South Wales. Later that month, the Trustee published a formal notice of its intention to distribute the estate. The Trustee has made searches concerning the deceased’s heirs and has been in contact with some of the deceased’s descendants in the United States and the United Kingdom. The Trustee now seeks directions permitting it to distribute the fund to the persons who appear to be entitled to it.

5. According to common law choice of law rules applicable in New South Wales, succession to property depends upon whether that property is classified as a movable or an immovable. Succession to movable property is determined according to the law of the deceased’s domicile; succession to immovable property is determined by the lex situs: Re Berchtold; Berchtold v Capron [1923] 1 Ch 192, 199; Re Crook (1936) 36 SR (NSW) 186, 192-193. The rule concerning immovable property has been criticised but is too well established to be altered by judicial decision at first instance: Re Collens [1986] 1 Ch 505; 2 WLR 919.

6. For the purpose of determining whether succession is testate or intestate, a further choice of law question arises, namely which law determines the validity of a will left by the decedent. At common law, the choice of law depended on whether the asset in question was an immovable or a movable. Validity of a will so far as movables was concerned was determined by the law of the domicile: Bremer v Freeman (1857) 10 Moore PC 306, 358; 14 ER 508, 527; In the Will of Lambe [1972] 2 NSWLR 273, 275. But the validity of a will so far as immovables were concerned was determined by the lex situs: Pepin v Bruyere [1902] 1 Ch 24.

7. This common law rule has been displaced in Australia by legislation adopting the Hague Convention on the Conflict of Laws Relating to the Form of Testamentary Dispositions 1961 (“The Hague Convention”). In New South Wales, that was done by amendments to the Wills, Probate and Administration Act 1898 (NSW) in 1977 which inserted Part 1A, ss 32A-32F. But those provisions only applied to the administration of the estate of a person dying after the commencement of the amendments: s 32B. The amendments took effect on 1 January 1978: Wills, Probate and Administration (Amendment) Act1977, s 2; New South Wales Government Gazette, No 159, 23 December 1977, at 5602. Those amendments were replaced by new provisions in slightly different form in the Succession Act, Part 2.4, ss 47-50. But again the new provisions only apply to the estate of a person dying after commencement: Succession Act, Sch 1, cl 3(3). The current provisions commenced on 1 March 2008: Succession Act, s 2.

8. The enactment of the Hague Convention altered the old common law choice of law rule concerning the validity of a will. But it did not affect the more general rule that succession to immovable property is determined by the lex situs.

9. A question may arise, where the lex situs has changed over time, as to whether succession should be determined according to the lex situs as it was at the date of death or at the date of the proceedings. Paul Torreman’s Cheshire, North & Fawcett Private International Law (15th ed, 2017, Oxford University Press) at 1339 states that, for the purposes of the parallel question where the law of domicile applies to movables, that the applicable law is the law of the domicile as at the date of death. On the other hand, the same text states with respect to immovables that the applicable law is the law of the situs as at the date of the proceedings rather than time of death, citing Nelson v Bridport (1846) 8 Beav 547; 50 ER 215. It is difficult to see why the two rules should apply in a different way. In any event, for the purposes of New South Wales law the position is fixed by statute. The Succession Act 2006 (NSW), s 13(2), expressly provides that where succession takes place according to New South Wales law, the applicable law is that which prevailed as at the date of the decedent’s death.

10. In the present case, the deceased, his widow, his children, and two of his three grandchildren had died before the property the subject of these proceedings was sold and the deceased’s interest in that property identified. At the time of each of those deaths the property was a share in a piece of land, which is an immovable: Re Berchtold; Berchtold v Capron (at [5] above). But the effect of the sale of the land was to convert the property into a sum of money held by the trustees for sale for the benefit of the owner or owners. Does this make any difference in the case of the deceased’s last surviving grandchild, who died after the sale took place?

11. In Re Berchtold, Russell J held that land held on trust for sale and which had not been sold was to be treated as an immovable. His Lordship declined to act on the equitable doctrine of conversion under which the land would have been treated as personal estate rather than real estate. He concluded that the equitable doctrine was irrelevant to the distinction, for the purposes of conflict of laws between immovable and movable property. His Lordship’s decision was applied in this Court in Re Crook (at [5] above). But these decisions do not directly apply to the present case, where the issue falls to be decided after the property in New South Wales was sold and converted into money.

12. In Re Berchtold Russell J (at 205) quoted from the text published by Professor Westlake of Cambridge University (described by his Lordship as a “great English authority”) the following proposition (John Westlake, A Treatise on Private International Law with Principal Reference to its Practice in England (4th ed, 1905, London : Sweet & Maxwell) at 203 and (5th ed, 1912, London : Sweet & Maxwell) at 221):

Money substituted for an immovable by the lex situs is subject to the same rights as the immovable, but, when an immovable is sold under a disposition made by the owner or in consequence of a dealing with it by the owner, the rights to which it was subject as an immovable do not affect its proceeds unless kept alive against them by the will of parties or by the lex situs.

13. In support of this proposition Professor Westlake referred to the decision of the Irish High Court of Justice in Re Rea; Rea v Rea [1902] 1 IR 451. In that case the deceased died intestate in Ireland leaving property in Ireland and in Victoria. Before the hearing of the proceedings the Victorian property was sold and the net proceeds remitted to Ireland to await the decision of the Court. Porter MR held that the deceased’s widow was entitled to receive a sum of money out of the proceeds of sale of the Victorian lands pursuant to Victorian intestacy legislation. His Lordship said (at p. 465):

It would, of course, be a different question if the Australian assets had been movable, and therefore, subject to the law of the country of the domicil [Ireland]. In that case the colonial statute would be of no avail against our law. But that is not so.

14. The decision in Re Rea is consistent with the decision of Cussen J in Re Ralston [1906] VLR 689; (1906) 12 ALR 365 and with the decision of Browne-Wilkinson VC (as his Lordship then was) in Re Collens. Professor Westlake’s proposition was clearly regarded by Russell J as sound. It was maintained in Professor Westlake’s textbook up until the last edition (the seventh, published in 1925).

15. Halsbury’s Laws of England, vol 19 (July 2011) Conflict of Laws, ‘8 Property’ [678] states that the proceeds of sale of land would normally fall to be treated as a movable but that there are certain exceptions, one of which is:

The rights of persons interested in the proceeds of sale of immovable property are governed by the law of the country where the immovable is situated, even if the proceeds are removed from that country.

For this proposition Halsbury cites a number of case references including Re Rea. Clearly it reflects the same principle as that lying behind Professor Westlake’s proposition.

16. Applying this principle to the facts of the present case leads to the conclusion that, following the sale of the property, its proceeds should be treated as an immovable and succession to those proceeds is governed by the law of New South Wales. The property was presumably sold by order of this Court pursuant to the Conveyancing Act 1919 (NSW), s 66G. At all events it was not a voluntary sale. The proceeds of the property thus answer the description of “monies substituted for an immovable by the lex situs” in Professor Westlake’s proposition.

17. For these reasons, I consider that the realisation of the New South Wales property makes no difference for the purposes of this case. New South Wales law must be applied to determine the succession of the property at the date of the deceased’s death and at the date of death of each of the deceased’s intermediate heirs.

The deceased and his immediate family

18. The deceased married Jenny Lippmann in Aachen in January 1886. Together they had three children: a son, Kurt (also referred to in the evidence as Curt); and two daughters, Alice and Edith.

19. The deceased left a will, which had been in Berlin in 1889, together with two codicils made in October and November 1896. The will made provision for his wife and children. The executors were his wife, his brother Julius Meyerfeld of Frankfurt am Main, and Hermann Bamberg of Berlin.

20. In December 1912 Hermann Bamberg, described as a Royal Councillor of Commerce, obtained probate of the deceased’s will and two codicils in England. This may have been because the deceased owned assets in England, but it could also have been connected with the death of the deceased’s son Kurt in June 1912. There is no evidence as to what assets the deceased left in Germany (or England) or what steps were taken to administer his estate.

21. The deceased’s will and codicils were signed by him and the translated copy in evidence was certified as complying with the requirements of German law. But as at the deceased’s death in 1907, New South Wales law required that a will, to be formally valid, had to be witnessed by two witnesses: Wills, Probate and Administration Act, ss 7(d), (e). The deceased’s will did not comply with this requirement. This provision remains part of New South Wales law in the Succession Act 2006 (NSW), s 6. The Court now has power to grant probate of a document which does not comply with these provisions if satisfied that it represents the testator’s statutory intentions: Succession Act 2006, ss 6, 8. But these provisions only apply to wills or other documents made after the 2006 Act commenced: Succession Act 2006, Schedule 1, cl 3(1), 3(3). The deceased’s will was therefore not valid under New South Wales law.

22. Under New South Wales law at the time of the deceased’s death in 1907, on intestacy his widow, Jenny Meyerfeld, received one-third of the estate with the remaining two-thirds being divided among his surviving three children in equal shares: Wills, Probate and Administration Act, s 50.

23. The deceased’s son Kurt died in June 1912 at the age of 29. He was unmarried and left no children. No evidence has been found of any grant of legal representation for his estate and it appears he died intestate.

24. Applying New South Wales law at the time of Kurt’s death in 1912, his share of his father’s share of the property passed on intestacy to his mother, Jenny: Wills, Probate and Administration Act, s 49. This left her with five-ninths of the deceased’s share; Alice and Edith, the deceased’s surviving daughters, held the other four-ninths.

25. Jenny died in June 1925 in Berlin. Her last will was made in January 1922. Like the deceased’s will, it was signed apparently in compliance with German law, but it was not witnessed in accordance with New South Wales law and was not valid under New South Wales law. Accordingly, under the then New South Wales intestacy provisions, (Wills, Probate and Administration Act, s 49) Jenny’s interest in the deceased’s share of the property passed to her daughters. Thus, by 1925, the whole of the deceased’s share of the property had devolved upon Alice and Edith.

Alice Meyerfeld and her heirs

26. Alice Meyerfeld was born in September 1888. She married Hugo Stokvis. They had one son, Samuel Raphael John (known as “John”) Stokvis. The family emigrated to the United States in 1940 and Alice was naturalised in 1948.

27. Alice died in Geneva, in Switzerland, in March 1977. In evidence is a translation of a copy of a will in French she made in Geneva in January 1977. The will was signed before a notary, presumably in accordance with the formal requirements of Swiss law. But it was not witnessed by two witnesses in accordance with the requirements of New South Wales law. The Hague Convention was not adopted in New South Wales until a few months later, namely, from 1 January 1978. Accordingly, Alice’s will was not valid under New South Wales law. Therefore Alice’s share of the property passed in accordance with New South Wales intestacy rules to her son, John: Wills, Probate and Administration Act, s 49.

28. John Stokvis was born in March 1916. He married Ivette Suzanne Korda. They had two sons, Jack Raphael Stokvis and Robert Edward Stokvis.

29. John Stokvis died in July 2004. He left a will which was admitted to the equivalent of probate (the grant of “letters testamentary”) in New York in December 2004. This appointed his sons, Jack Raphael Stokvis and Robert Edward Stokvis as the executors of his estate.

30. John Stokvis’ will is in evidence. It made somewhat elaborate provision for his surviving family members but it is not necessary for present purposes to go into the details of those arrangements. Jack Raphael Stokvis and Robert Edward Stokvis, the executors are still alive. The Trustee proposes to distribute the share of their grandmother, Alice Stokvis, to them, leaving it to them to distribute the proceeds in accordance with the terms of the will.

Edith Meyerfeld and her heirs

31. Edith Meyerfeld was born in March 1894. She first married Albert Julius Mosenthal in Germany. This marriage took place in February 1919. Together they had two daughters, Ellen Alice Mosenthal, born in January 1920, and Alice Renata Mosenthal, born in April 1922.

32. Later (the evidence does not indicate when) Edith and her daughters emigrated to England. There she married her second husband, William Berger Barry. There were no children from that marriage.

33. Edith died in February 1973. In evidence is what is said to have been Edith’s last will, which was made in August 1967. On the face of it, the will, having been made in England where the rules as to formal validity of wills were relevantly the same as those in New South Wales, would have complied with the law of New South Wales.

34. By the will Edith left:

(a)   all of her furs, jewellery, clothing and articles of personal adornment to her daughters, Ellen and Alice;

(b)   “all the rest residue and remainder of my personal chattels (as defined by the Administration of Estates Act 1925)” to her husband, William Berger Barry;

(c)   “all residue of my estate whatsoever and wheresoever” to Ellen and Alice.

35. The Administration of Estates Act 1925 (UK), s 55(1)(x) provides the following definition of “personal chattels”:

“Personal chattels” mean carriages, horses, stable furniture and effects (not used for business purposes), motor cars and accessories (not used for business purposes), garden effects, domestic animals, plate, plated articles, linen, china, glass, books, pictures, prints, furniture, jewellery, articles of household or personal use or ornament, musical and scientific instruments and apparatus, wines, liquors and consumable stores, but do not include any chattels used at the death of the intestate for business purposes nor money or securities for money

36. Edith’s share of the New South Wales property would not have been a “personal chattel” according to this definition. It would have fallen into residue and passed to her daughters Ellen and Alice.

37. Edith’s will appointed five executors: Edith’s husband, William Berger Barry (who survived her); Phillip Herbert Melliar-Smith and Daisy Margaret Melliar-Smith, his wife, of Claygate in Surrey; “Edward Stokvis” of New York City, and John Stokvis, Edith’s nephew. The evidence does not contain any information about the Melliar-Smiths, or identify who “Edward Stokvis” was. Nor does it identify whether probate was obtained of the will by any of the executors.

38. The Imperial Acts Application Act 1969 (NSW), s 13, provides:

(1)   An executor of a sole or last surviving executor of a testator is the executor of that testator.

This provision shall not apply to an executor who does not prove the will of his testator and, in the case of an executor who on his death leaves surviving him some other executor of his testator who afterwards proves the will of that testator, it shall cease to apply on such probate being granted.

(2)   So long as the chain of such representation is unbroken, the last executor in the chain is the executor of every preceding testator.

(3)   The chain of such representation is broken by:

(a)  an intestacy,

(b)  the failure of a testator to appoint an executor, or

(c)  the failure to obtain probate of a will,

but is not broken by a temporary grant of administration if probate is subsequently granted.

(4)   Every person in the chain of representation to a testator:

(a)   has the same rights in respect of the estate of that testator as the original executor would have had if living, and

(b)   is, to the extent to which the estate of that testator has come to his hands answerable as if he were an original executor.

39. This provision and the terms of Edith’s will raise the possibility there may be a person entitled to be recognised under New South Wales law, as executor of Edith’s estate. John Stokvis is dead. It appears unlikely that any of the other four executors would still be alive almost half a century after Edith’s death, but the evidence before me does not exclude the possibility. Furthermore, s 13 may apply. The section does not expressly include the executor of an English testator. But given its Imperial origins, and the close relationship between English and New South Wales probate law (cf Probate and Administration Act, s 107), it may implicitly do so. If the section does apply (or New South Wales law picks up its English equivalent) and Edith’s will was in fact proved, then there might be an executor by representation of her estate. Such a person would be entitled, in that capacity, to receive Edith’s share of the property the subject of these proceedings for administration in accordance with her will.

40. Had the present question fallen for decision shortly after Edith’s death in 1973, the Court might have directed the Trustee to conduct further enquiries with a view to identifying Edith’s executor or executors so that her share of the property could be dealt with by them. But after all this time I do not think it is necessary for the Court to seek further evidence about the existence of any surviving executors or executors by representation. Given the lapse of time and the unlikelihood that anyone else would have been entitled to the proceeds of the property, I think it is legitimate for the Trustee to proceed on the basis that Edith’s share devolved upon her daughters, Ellen and Alice, and to deal directly with their heirs (both of them being dead; see below) rather than making any further enquiry about whether there is, or could be appointed, a legal personal representative of Edith.

41. Ellen married Richard Kimball Chamberlain in London in January 1948. Together they had two children, Clare Beatrice Chamberlain and Oliver Richard Chamberlain.

42. Ellen died in London in June 2013. In January 2014 probate was granted to her children Oliver and Clare as executors of her will. The will itself is not in evidence but I think I can assume from the fact that probate was granted that it complied with English formal requirements, and therefore that it would have complied with New South Wales formal requirements.

43. Alice married Kurt Joachim Dietrich Karl Julius Saalfeld (also known as Derek Julius Salfield) in Ealing in April 1943. They were later divorced. Together they had four children: Stephen Albert William Saalfeld/Salfield; Angela Ellen Salfield, Phillip Derek Salfield; and Nicolas Julian Salfield.

44. Alice died in November 2001. She had not remarried and was intestate. Under New South Wales law as at the date of her death, her estate passed to her four children in equal shares: Wills, Probate and Administration Act, s 61B(4).

Application for directions

45. On the basis of this evidence, the Trustee seeks directions authorising it to distribute the proceeds of the New South Wales property as follows:

(a)   a one-half share to Jack Raphael Stokvis and Robert Edward Stokvis as the legal personal representatives of their father, John Stokvis, the son of Alice Meyerfeld;

(b)   a one-quarter share to Oliver Richard Chamberlain and Clare Beatrice Chamberlain as executors of their mother, Ellen Alice Barry, the older daughter of Edith Meyerfeld;

(c)   a one-sixteenth share to each of Stephen Albert William Saalfeld/Salfield, Angela Ellen Salfield, Phillip Derek Salfield and Nicholas Julian Salfield as the heirs of Alice Renata Salfield, the younger daughter of Edith Meyerfeld.

46. In a Re Benjamin application, the Court is simply giving directions to the trustee so as to sanction a distribution of property proposed by the trustee in the light of the trustee’s enquiries. Strictly speaking, the Court is not finally determining the identity and entitlement of the beneficiaries, and the Court’s decision would not be determinative if further property of the deceased came to light: Re Green’s Will Trusts; Fitzgerald-Hart v A-G [1985] 3 All ER 455, Re Appln for Grant of Presumption of Death; Ex parte Jenkins (2008) 1 ASTLR 406; [2008] WASC 49 at [22]; Application of NSW Trustee & Guardian [2014] NSWSC 1857 at [4], [6].

47. There is always the possibility that the information before the Court is incomplete and there may be persons who have an interest who have not been identified. Those uncertainties are greater in this case where it has been necessary to trace the descendants of the deceased through three generations and all of the relevant information is overseas. But there is no reason to think that the information is incomplete and I am satisfied that the Trustee’s investigations are sufficient in the circumstances. Accordingly I will make the directions sought.

Orders of the Court

48. The Court orders:

1.   An order that, in the events which have happened, the plaintiff is justified in distributing the estate of the late John Meyerfeld (“the deceased”), who died on 13 September 1907 late of Berlin, Germany, to the extent representing the net proceeds of sale of real property in New South Wales, as follows:

A.   As to a one half share to the heirs of Alice Stokvis, nee Meyerfeld, namely to Jack Raphael Stokvis and Robert Edward Stokvis as personal representatives of the late Samuel Raphael John Stokvis, to be dealt with in accordance with his will;

B.   As to the remaining one half share, to the heirs of Edith Barry, formerly Mosenthal, nee Meyerfeld, in the following shares:

(i)   As to one half to the executors of the will of Ellen Alice Chamberlain, nee Mosenthal, namely, Clare Beatrice Chamberlain and Oliver Chamberlain, to be dealt with in accordance with her will; and

(ii)   As to one half to be divided between the issue of Alice Renata Salfield, nee Mosenthal, namely:

(a)   Stephen Albert William Saalfeld/Salfield;

(b)   Angela Ellen Salfield;

(c)   Phillip Derek Salfield;

(d)   Nicolas Julian Salfield;

as tenants in common in equal shares.

2.   The plaintiff’s costs of this application be paid or retained from the deceased’s estate on the indemnity basis.

**********

Amendments

28 February 2019 - [9] insert words "is the law"

Decision last updated: 28 February 2019