Bickford v Benson

[2015] WASC 161

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   BICKFORD -v- BENSON [2015] WASC 161

CORAM:   JENKINS J

HEARD:   17 APRIL 2015

DELIVERED          :   17 APRIL 2015

PUBLISHED           :  8 MAY 2015

FILE NO/S:   CIV 2455 of 2014

BETWEEN:   DAVID BRUCE BICKFORD AS EXECUTOR OF THE ESTATE OF FRANCIS JOHN STANDFORD­BLUNTISH

Plaintiff

AND

BETH BENSON
First Defendant

SYLVIA MARINA
Second Defendant

CAROLINE JONES
Third Defendant

DAVID BRUCE BICKFORD
Fourth Defendant

MAITLAND BLUNTISH
Fifth Defendant

JOHN BLUNTISH
Sixth Defendant

VICKI BLUNTISH
Seventh Defendant

ROBERT BLUNTISH
Eighth Defendant

ANNE BLUNTISH
Ninth Defendant

Catchwords:

Succession - Executors - Missing beneficiary - Grant of power to executor to distribute bequest to missing beneficiary as part of the residuary estate

Legislation:

Trustees Act 1962 (WA), s 63, s 66

Result:

Orders made to enable the distribution of the bequest to the beneficiary, Caroline Jones, as if Ms Jones had died before the deceased or did not exist, as part of the residuary estate

Category:    B

Representation:

Counsel:

Plaintiff:     Ms C H Thompson

First Defendant             :     No appearance (abiding by the decision of the court)

Second Defendant         :     No appearance (abiding by the decision of the court)

Third Defendant           :     No appearance

Fourth Defendant          :     No appearance

Fifth Defendant            :     No appearance (abiding by the decision of the court)

Sixth Defendant            :     No appearance (abiding by the decision of the court)

Seventh Defendant        :     No appearance (abiding by the decision of the court)

Eighth Defendant          :     No appearance (abiding by the decision of the court)

Ninth Defendant           :     No appearance (abiding by the decision of the court)

Solicitors:

Plaintiff:     Seymour Legal

First Defendant             :     No appearance

Second Defendant         :     No appearance

Third Defendant           :     No appearance

Fourth Defendant          :     No appearance

Fifth Defendant            :     No appearance

Sixth Defendant            :     No appearance

Seventh Defendant        :     No appearance

Eighth Defendant          :     No appearance

Ninth Defendant           :     No appearance

Case(s) referred to in judgment(s):

Lashko v Lashko [2011] WASC 214

Nolan v Nolan [2011] WASC 224

Re Application for Grant of Presumption of Death; Ex parte Jenkins [2008] WASC 49

Re Application of New South Wales Trustee and Guardian [2014] NSWSC 1857

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

Re Green's Will Trusts; Fitzgerald‑Hart v the Attorney‑General [1985] 3 All ER 455

JENKINS J: 

(This judgment was delivered extemporaneously on 17 April 2015 and has been edited from the transcript).

1. This is an application seeking orders pursuant to the Trustees Act 1962 (WA), s 66, to enable the distribution of the estate of Francis John Stanford Bluntish (the deceased), in a manner that is different from that set out in the will of the deceased by not distributing a specific bequest of $5,000 to a named beneficiary, Caroline Jones, the third defendant. Instead, the application seeks orders that the plaintiff, the executor of the estate, be at liberty to immediately distribute the bequest as if Ms Jones had died before the deceased or did not exist, as part of the residuary estate.

2. These are my reasons for decision.  They draw extensively on the very helpful written submissions made by the plaintiff.

3. Each of the named beneficiaries under the deceased's will have been joined as parties to the application and apart from Ms Jones and the fourth defendant, who is also the plaintiff in his capacity as executor, they have been served with the application.  None of the parties have entered an appearance.  Each of them, barring the third and fourth defendants, have filed a notice to abide the decision of the court. 

4. The application is supported, in substance, by the affidavit of the plaintiff sworn 26 February 2015 and the affidavit of Damon Bryce Seymour affirmed on the same date.

5. The factual background is that the deceased died on 29 July 2013 at a nursing home in Albany, Western Australia.  He had been a farmer and was elderly at the time of his death.  Probate of the deceased's will dated 20 November 2003 was granted on 24 February 2014 to the plaintiff.  At the time of making the application for probate, the estate was valued at approximately $4,694,757.  As at 31 December 2014, the value had grown to some $4,938,479. 

6. There are nine beneficiaries of the estate who receive differing bequests.  Four beneficiaries are bequeathed a specific sum of money, that is, $50,000 to the first defendant, $25,000 to the second defendant, $5,000 to the third defendant and $100 to the fourth defendant.  Five beneficiaries are bequeathed specific items of personal property which appear to be of limited value.  They are the first, fifth, sixth, seventh and eighth defendants.  The fifth, sixth and eighth defendants are bequeathed the deceased's real property and the contents of a home unit.  Finally, the residue of the estate is divided between the fifth, sixth, eighth and ninth defendants (together, the affected beneficiaries). 

7. The first, second and fourth defendants were friends of the deceased.  It is believed that the third defendant was also a friend of the deceased.  The remaining beneficiaries are relatives of the deceased.

8. The executor has been unable to locate the third defendant, Ms Jones, who is the beneficiary of the specific bequest of $5,000. 

9. The plaintiff has partially distributed the estate after accounting for the specific bequests, other than that to Ms Jones.  There remains approximately $3,883,000 which would be available for distribution to the four residuary beneficiaries.

10. The beneficiaries affected by this application are the first defendant, the third defendant, Ms Jones, and the affected beneficiaries.  The affected beneficiaries may be subject to a claim for tracing in the event that Ms Jones came forward at a later date after the final distribution of the estate.  Each of the affected beneficiaries has been made aware of these proceedings and of the risk that they personally face if the orders sought are made.  In this respect, it has been ascertained by the plaintiff that the liability of the fifth defendant would be in the sum of $1,000, the liability of the sixth defendant would be in the sum of $2,000, the liability of the eighth defendant would be in the sum of $1,500 and the liability of the ninth defendant would be in the sum of $500.  Despite receiving this advice, none of the affected beneficiaries have entered an appearance and sought to be heard.

The law

1. The applicable law is the Trustees Act, s 66, which states:

   Unknown beneficiaries, advertising for, distribution of shares of

   (1)Where any property is held by a trustee and the property or any part thereof cannot be distributed because the trustee does not know -

   (a)whether any person who is, or may be, entitled thereto is, or at any material date was, in existence; or

   (b)whether all or any of the persons who are members of any class that is or may be entitled thereto are, or at any material date were, in existence; or

   (c)whether any such person as is mentioned in paragraph (a) or (b) is alive or dead or where he is to be found,

   the trustee may publish such advertisements (whether in the State or elsewhere) as are appropriate in the circumstances calling upon every such person and every person claiming through any such person to send in his claim within a time to be specified in the advertisements, being, in any case, not less than 2 months from the date on which the advertisement is published.

   …

   (5)Upon proof by affidavit of the circumstances, and of the inquiries that have been made, and of the results of the inquiries and advertisements, and of the claims of which the trustee has received notice, and of the notices that the trustee has given to claimants under subsection (3), and of the action (if any) that the claimants have taken to enforce their claims, the Court may order that the trustee be at liberty to distribute the property or part thereof, subject to such conditions as the Court may impose -

   (a)as if every person and every member of any class of person specified in the order (being all or any of the persons specified in the advertisements) is not in existence or never existed or has died before a date or event specified in the order; and

   (b)where as a consequence of the order it is not possible or practicable to determine whether or not any condition or requirement affecting a beneficial interest in the property or any part thereof has been complied with or fulfilled, as if that condition or requirement had or had not been complied with or fulfilled, as the Court may determine.

   (6)In making any order under subsection (5), the Court may -

   (a)disregard (without express reference thereto in the order) the claims of any persons who do not appear to the Court to be, or likely to be, any of the persons specified in the advertisements;

   (b)disregard (without express reference thereto in the order) the claim of any person to whom the trustee has given notice under subsection (3) and who has failed to take legal proceedings to enforce the claim or to prosecute any such proceedings with all due diligence;

   (c)exclude from the operation of the order any person to whom the trustee has not given notice under subsection (3) and who, in the opinion of the Court, may be one of the persons specified in the advertisements, or any person whom the Court considers should, for any reason, be excluded from the operation of the order;

   (d)provide that the order shall not be acted on for such period or except on such conditions as may be specified in the order or that the effect of the order shall during a period so specified be advertised in such manner and form as may be specified in the order, or that the order be served upon such person or persons as are specified therein; and in the event of the Court exercising the jurisdiction conferred by this paragraph it may in the order direct that the order shall be of no effect in respect of any person specified therein in the event of that person instituting proceedings in the State to enforce his claim and serving the proceedings upon the trustee within such period as is specified in the order.

   (7)The Court may make an order under this section notwithstanding that there has not been strict compliance with any directions as to advertisements previously given by the Court, or that an error has been made in any advertisement (whether or not any directions have previously been given by the Court) if the Court considers that the error would not be likely to have prejudiced or misled the persons to whom the advertisement relates.

   (8)Where the Court makes an order under this section that the trustee may distribute any property or part thereof as if every person and every member of any class of persons specified in the order (not being a person expressly excluded from the operation of the order) is not in existence or never existed or has died before a date or event specified in the order, and the trustee distributes in accordance with the order, the trustee shall be exonerated from any further liability to any such person or to any member of any such class; but nothing in this section affects any remedy that any person may have against any person other than the trustee, including any right that he may have to follow the property and any money or property into which it is converted.

2. The history of s 66 was explained by Heenan J in Nolan v Nolan [2011] WASC 224 [24] ‑ [34]. I am grateful to his Honour for the detail he has provided in that decision and I rely on it.

3. The order contemplated by s 66(5) of the Trustees Act is known as a Benjamin order, following the decision of Re Benjamin; Neville v Benjamin [1902] 1 Ch 723. The jurisdiction to make a Benjamin order is not founded on proof that a beneficiary has died, but rather on the basis of the practical probabilities of the facts as known to the court at the time of making the order, see also: Re Green's Will Trusts;Fitzgerald‑Hart v the Attorney‑General [1985] 3 All ER 455 [462(e)], ReApplication for Grant of Presumption of Death; Ex parte Jenkins [2008] WASC 49 [22]. The court does not require a declaration of death in order to make an order of this type Re Green's Will [462] ‑ [463], although that may be necessary in some circumstances:  Lashko v Lashko [2011] WASC 214.

4. A Benjamin order is not a positive declaration of rights, and it is made regardless of the fact that there may be some uncertainty relevant to the distribution as to the existence of one of the beneficiaries.  Re Application of New South Wales Trustee and Guardian [2014] NSWSC 1857 [4], [6].

Efforts made to locate Ms Jones

1. The plaintiff has made extensive enquiries as the identity and whereabouts of Ms Jones.  As has been stated, she is the beneficiary of a specific bequest of $5,000 pursuant to cl 2.3 of the deceased's will.  The attempts that the plaintiff made to locate Ms Jones were initially based on the plaintiff's recollection of a conversation which he had with the deceased.  He believes that the deceased told him that Ms Jones was someone he (the deceased) knew in Albany, and that she worked with the St John Ambulance Service. 

2. The enquiries which have been made to find Ms Jones include:

   (1)making enquiries of the solicitors who bought the practice of the solicitor who drafted the deceased's will;

   (2)writing to each of the beneficiaries under the will;

   (3)writing to the St John Ambulance Service; and

   (4)placing advertisements in the Western Australia Government Gazette and relevant newspapers. 

3. The advertisements were placed in the Western Australian Government Gazette on 15 April 2014, the Western Australian newspaper on 1 April 2014, 9 April 2014, and The Albany Advertiser on 17 July 2014. 

4. Whilst not each of those advertisements was in the form that is contemplated in the Trustees Act, s 63, they each named Ms Jones and requested her or anybody claiming under Ms Jones to approach the plaintiff's solicitor.

5. Fifthly, the plaintiff, or his solicitor, wrote to all landowners named C Jones in Western Australia.  Sixthly, he searched the electoral roll for Albany at the date on which the will was executed for a person of that name.  Seventhly, he searched the death notices in Western Australia for the period since the will was executed.  Eighthly, telephone calls were made to persons listed as C Jones in the White Pages for Western Australia.

6. Despite all these efforts, Ms Jones has not been located, nor is there any certainty as to who she is or was, and what her relationship with the deceased might have been. 

7. A prerequisite for making the orders sought is an advertisement under the Trustees Act.  As I have said, the advertisements which were placed specifically named Ms Jones and sought any other potential claimants through her. 

Determination of application

1. There remain a number of possibilities in respect of Ms Jones.  These possibilities include:  that the will misstates the name of the person to whom the deceased was intending to make the bequest; that Ms Jones has permanently or temporarily moved interstate or overseas; that Ms Jones has died; that Ms Jones has changed her name, or that Ms Jones is incapacitated.  Thus, this is not a case where I can make any determination as to what has happened.  The actual identity and current whereabouts of the person named in the will as Ms Jones are entirely unknown.

2. Taking into account all of these matters, the conclusion I reach is that at this time Ms Jones has been the subject of appropriate and extensive searches, and that she cannot be positively identified as a specific individual.  Neither can she be located.  Given the rights of the remaining beneficiaries and the size of the estate, particularly as compared to the size of the bequest to Ms Jones, it is now appropriate for me to grant the orders sought, being to distribute the estate as if Ms Jones did not exist or died before the deceased.  The order will mean that Ms Jones' share of the estate will form part of the residue and fall to be distributed in accordance with cl 3.3 of the deceased's will to the affected beneficiaries. 

3. The order will protect the plaintiff and enable him to distribute the balance of the estate.  But the order will not affect the right of Ms Jones, if she is alive and becomes aware of the bequest, to take action to trace the proceeds, subject to any relevant limitation period. 

4. Thus, I will make the orders as sought in the originating summons dated 13 October 2014.  Those orders include an order that the plaintiff is entitled to the costs of the application, to be paid on a solicitor and own client basis out of the estate of the deceased.

5. This order is appropriate, given that the plaintiff had no choice but to make this application to the court in his capacity as executor of the estate of the deceased.