Application of Roberts

[2023] NSWSC 342

Supreme Court

New South Wales

Medium Neutral Citation:

Application of Roberts [2023] NSWSC 342

Hearing dates:

In Chambers on the papers

Date of orders:

6 April 2023

Decision date:

06 April 2023

Jurisdiction:

Equity

Before:

Hallen J

Decision:

The Court in Chambers:

(1) Orders that the Plaintiff, as administrator of the estate of Enid Jean Fox be released from her undertaking to not distribute the one fifth share of the deceased’s estate representing the share of Alan Martin Fox, a child of the deceased.

(2) Declares that the Plaintiff may distribute the remaining part of the estate of Enid Jean Fox as if Alan Martin Fox had predeceased the deceased without issue, and that the one fifth share to which he would have been entitled had he been proved to have survived the deceased may be distributed to the four other children of the deceased in equal shares.

(3) Orders that, if Alan Martin Fox, or any issue, is established to be alive, then the other children of the deceased shall repay to the administrator the total amount distributed to him or her from the estate of Enid Jean Fox to the intent that there will be an equal division between the children of the deceased.

(4) Orders that the Plaintiff’s costs, calculated on the indemnity basis, of the proceedings, be paid out of the estate of the deceased.

Catchwords:

SUCCESSION – Probate and administration – Where missing person, who is a beneficiary of an intestate estate was last seen in 1979 – Searches and enquiries then conducted in an attempt to locate missing beneficiary – Coronial Inquest which found that person likely to be deceased – No contact with persons with whom the missing person would have been likely to communicate, including family members – No evidence that missing beneficiary is alive or dead, although Death Certificate issued by Coroner – Whether administrator should distribute the share of the intestate estate upon the basis that the missing beneficiary is dead – Court satisfied that the Administrator should be released from that undertaking and that she would be justified in distributing the share of the intestate estate to which the missing beneficiary is entitled to the surviving issue of the deceased – Order also made that the 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:

Civil Procedure Act 2005 (NSW) s 71

Succession Act 2006 (NSW) ss 111, 127

Supreme Court Act 1970 (NSW) s 11

Cases Cited:

Application of Jordan; Estate of Michael Galanis (aka Michael Galanakis) [2023] NSWSC 221

Re Benjamin; Neville v Benjamin [1902] 1 Ch 723

Category:

Principal judgment

Parties:

Fiona Jean Roberts (Plaintiff)

Representation:

Solicitors:
McNally Jones Staff Lawyers (Plaintiff)

File Number(s):

2023/35509

Publication restriction:

Nil

Judgment

Introduction

1. These reasons concern the estate of Enid Jean Fox (the deceased) who died, intestate, on 19 March 2021, in New South Wales, and Alan Martin Fox, a prospective beneficiary, to whom I shall refer as “the propositus”, who was last seen on 15 January 1979. For this reason, distribution of the deceased’s estate has been held up and its administration cannot be completed without orders of the Court.

2. The deceased left property in New South Wales and on 1 June 2022, this Court granted Letters of Administration to Fiona Jean Roberts, the Plaintiff, a daughter of the deceased and a sister of the propositus.

3. As part of the proceedings to obtain the grant of Letters of Administration, and in response to a requisition dated 22 December 2021 of the Principal Probate Registrar, the Plaintiff filed an affidavit on 7 March 2022 which included an undertaking that she would not distribute one fifth of the deceased’s estate representing the share to which the propositus may have been entitled. This undertaking was given for reasons that will be explained below.

The Proceedings

4. By Summons filed on 2 February 2023, the Plaintiff seeks:

1. That the matter be dealt with on the papers.

2. A declaration that the propositus had predeceased the deceased, leaving no issue.

3. In the alternative, an order that the Plaintiff be at liberty to distribute the share of the estate of the deceased that otherwise would have passed to the propositus had he survived the deceased, to the surviving issue of the deceased.

4. An order that his costs, calculated on the indemnity basis, be paid out of the estate of the deceased.

5. The matter was first listed in the Succession List on 3 March 2023. On that occasion, there was no appearance by, or on behalf of, the Plaintiff.

6. On 7 March 2023, Mr M Burns, a solicitor, appeared for the Plaintiff. I stood the matter over for further directions on 20 March 2023.

7. On 20 March 2023, Ms C Hatzigeorgiou, of McNally Jones Staff Lawyers, appeared for the Plaintiff. The Court was requested to deal with the matter in Chambers, on the papers, as there was no contradictor and because the evidence appears to be all one way.

8. There is ample power given to the Court to deal with a matter in Chambers: s 11 of the Supreme Court Act 1970 (NSW). Section 71 of the Civil Procedure Act 2005 (NSW) also provides that the business of a court in relation to any proceedings may be conducted in the absence of the public in circumstances including “(f) if, in proceedings in the Equity Division … the court thinks fit”.

Background Facts

9. In considering the relief claimed, it is necessary to set out the facts, which are taken from the Plaintiff’s affidavit filed on 2 February 2023. There are also documents, annexed to the affidavit, upon which reliance has been placed.

10. As stated, the deceased died on 19 March 2021. Whilst there is no Death Certificate filed, the Letters of Administration issued by the Court on 1 June 2022 confirmed the date of her death.

11. The gross value of the deceased’s estate is about $355,000. There have been some expenses. The Plaintiff estimates each child’s share to be about $67,000.

12. Succession to the deceased's intestate estate is governed by the law of NSW at the date of death. As the deceased died intestate after the commencement of the Succession Amendment (Intestacy) Act 2009 (NSW), Chapter 4 of the Succession Act 2006 (NSW) applies.

13. Section 111 of the Succession Act provides that if an intestate leaves a spouse, but no issue, the spouse is entitled to the whole of the intestate estate.

14. In this case, the deceased died leaving no spouse. The deceased was married to Mr Henry James Fox on 10 March 1951. He predeceased the deceased having died on 3 July 2012.

15. Section 127(1) of the Succession Act provides that if an intestate leaves no spouse, but leaves issue, the intestate's children are entitled to the whole of the intestate estate.

16. In this case, the deceased had five children. They are the Plaintiff, and Ian Michael Fox, Neil James Fox, Graeme Scott Fox, and the propositus. All the other children of the deceased survived her.

17. In her affidavit filed on 7 March 2022 in support of her application for the grant, the Plaintiff deposed that the persons entitled to share equally, the deceased’s estate were the issue of the deceased, being Ian, Neil, Graeme, the Plaintiff, and, if he survived the deceased, the propositus: s 127(3)(b) of the Succession Act.

18. The problem that has arisen relates to the share of the propositus, who, it appears, disappeared whilst on a hitchhiking trip with his fiancée, Anneke Adriaansen (“Anneke”), to Kempsey and Upper Burringbar, on the far North Coast of New South Wales, in 1979.

19. The evidence reveals that the propositus, who was then 21 years old, and Anneke departed from Berowra Heights on 11 January 1979. They were last seen on 12 January 1979 on Main Street in Byron Bay.

20. Despite numerous searches and enquiries made at that time, and since then, the propositus has not been seen, or heard of, and no family member has had any contact with him.

21. The evidence also reveals that there were no reasons for the propositus and Anneke to disappear. They went north to look at a property that they thought they might purchase; they were planning their marriage; and both were in sound employment. Following the disappearance, enquiries by the Police found that the bank account of the propositus had not been accessed by anyone since the time of his disappearance.

22. On 3 August 2005, the Deputy State Coroner, who had conducted an Inquest, stated that while he could not say for certain, the precise date of death, place of death and the manner and cause of death, he was satisfied the propositus is deceased and that he died some time on, or after, 15 January 1979.

23. On 26 April 2013, the NSW Registry of Births, Deaths and Marriages issued a Death Certificate for the propositus. The Plaintiff was the Informant shown on the Death Certificate.

24. Both the propositus and Anneke are still listed on the Australian Missing Persons Register and on the NSW Police website with a reward of $100,000 offered to solve the case of their disappearance. However, no information suggesting that the conclusion of the Deputy State Coroner was wrong has been obtained in almost 18 years since his findings. It follows that the propositus has been missing and has not been heard from for a total of over 44 years.

25. Searches in 2022 reveal that the propositus did not leave any issue: Affidavit, Fiona Jean Roberts, 2 February 2023 at Annexure G.

The Law - Distribution

26. I have dealt with the principles that apply, very recently in Application of Jordan; Estate of Michael Galanis (aka Michael Galanakis) [2023] NSWSC 221. For similar reasons, as stated in that case, I have determined that the Court should deal with the matter in Chambers.

27. It is not necessary for me to repeat all the principles that I have recently set out. I simply mention that there is a need for some means of dealing with the problem of a missing beneficiary. The Court may make an order that the executor or administrator is at liberty to distribute on a particular factual basis. It is this type of order that is termed "a Benjamin order". It derives from the case of Re Benjamin; Neville v Benjamin [1902] 1 Ch 723.

28. The purpose of such an order is to enable the court to provide effective assistance to an executor, administrator, or trustee, by arriving at a practical outcome, while ensuring that further delay and costs are kept to a minimum.

29. I also dealt with the principles that apply to the release and discharge from undertaking. I shall not repeat those principles either.

Determination

30. As earlier stated, applying the operation of the rules of intestacy, the persons entitled to the deceased’s estate were the issue of the deceased.

31. I have considered the sufficiency of the inquiries that have been made by the Plaintiff, or otherwise, both before, and after, the death of the deceased; how much time has elapsed since the death of the deceased, and, as importantly, since the propositus was last heard from; the inquiries that have been made; that there has been a Coronial Inquest; whether pursuing further avenues of enquiry, or deferring the decision, might result in a claim being made by the propositus, or otherwise generate further information; and the likely delay associated with pursuing any other avenues, and the likelihood that such investigations may result in additional information.

32. Naturally, I have also considered the amount at stake, which is not substantial.

33. Having regard to all the evidence, I am satisfied that there is no utility in continuing any further searches concerning the propositus. I am satisfied that all avenues of search have been exhausted. Any further searches are unlikely to improve the state of the evidence. The chance of ascertaining that the propositus remains alive may be properly characterised as remote, if not impossible. There is simply no evidence that further efforts will yield positive results. No useful purpose will be served by delaying the further distribution of the estate. The time has come to end the administration of the deceased’s estate.

34. In relation to the release of the Plaintiff from her undertaking, it must be remembered that it was given in the context that there would need to be searches to determine the identity of the person, or persons, entitled to the deceased’s estate under the operation of the rules of intestacy. As a result of the conclusion reached, that search has now ended and there is no longer any need to require the undertaking to remain in existence. Importantly, without being released therefrom, contravention would involve the Plaintiff being in contempt of court if she distributed the estate.

35. There is no other person who would be affected if the Plaintiff were released from the undertaking; there is no public interest in its maintenance; and releasing the Plaintiff from it would be of practical utility since it would enable her to complete the administration of the deceased’s estate. In the circumstances, the release of the Plaintiff, as administrator, from the undertaking given is both convenient and just.

36. In the circumstances, I am prepared to make the orders as sought by the Plaintiff.

37. The Court:

1. Orders that the Plaintiff, as administrator of the estate of Enid Jean Fox be released from her undertaking to not distribute the one fifth share of the deceased’s estate, representing the share of Alan Martin Fox, a child of the deceased.

2. Declares that the Plaintiff may distribute the remaining part of the estate of Enid Jean Fox as if Alan Martin Fox had predeceased the deceased without issue, and that the one fifth share to which he would have been entitled had he been proved to have survived the deceased may be distributed to the four other children of the deceased in equal shares.

3. Orders that, if Alan Martin Fox, or any issue, is established to be alive, then the other children of the deceased shall repay to the administrator the total amount distributed to him or her from the estate of Enid Jean Fox to the intent that there will be an equal division between the children of the deceased.

4. Orders that the Plaintiff’s costs, calculated on the indemnity basis, of the proceedings, be paid out of the estate of the deceased.

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Decision last updated: 11 April 2023