Deputy Curator of Deceased Estates, in the matter of Quintal
[2023] NFSC 4
•9 November 2023
SUPREME COURT OF NORFOLK ISLAND
Deputy Curator of Deceased Estates, in the matter of Quintal [2023] NFSC 4
File number: SC 2 of 2021 Judgment of: BESANKO CJ Date of judgment: 9 November 2023 Catchwords: SUCCESSION — application by Deputy Curator of Deceased Estates pursuant to s 130 of the Administration and Probate Act 2006 (NI) and pursuant to the Trustee Act 1931 (NI) and s 63 of the Trustee Act 1925 (NSW) — where deceased died intestate in 1922 and was survived by nine of her children — where Letters of Administration granted in 1971 and estate distributed but for the share of one beneficiary who could not be located — where extensive investigation and searches have not conclusively located the beneficiary — whether the evidence supports a finding the beneficiary died intestate without leaving a spouse, issue or parents — whether a Benjamin order should be made — whether half-brother entitled to share in beneficiary’s estate — consideration of common law choice of law rules relating to succession — whether beneficiary died on 10 April 1954 Legislation: Administration and Probate Act 2006 (NI) ss 5, 130
Administration of Estates Act No. 40 of 1954 (NSW) s 61A
Administration and Probate Ordinance 1929-1953 (ACT)
Inheritance Act No. 19, 1901 (NSW)
Probate and Administration Ordinance 1960–1961 (NI)
Succession and Wills Act 1913 (NI)
Trustee Act 1931 (NI)
Trustee Act 1925 (NSW) s 63
Wills, Probate and Administration Act 1898 (NSW) ss 49, 50, 51
Cases cited: Application of NSW Trustee & Guardian; Estate of Meyerfeld [2019] NSWSC 156
In the Estate of Cullen (1976) 14 SASR 456
Re Benjamin; Neville v Benjamin [1902] 1 Ch 723
Wilcox v Poole [1974] 2 NSWLR 693
Number of paragraphs: 52 Date of hearing: Determined on the papers Date of last submissions: 1 December 2021 Solicitor for the Applicant: Mr F J Grose, John Grose, Solicitor ORDERS
SC 2 of 2021 IN THE MATTER OF THE ESTATE OF AMY ARABELLA QUINTAL
DEPUTY CURATOR OF DECEASED ESTATES, IN THE ESTATE OF AMY ARABELLA QUINTAL, LATE OF, NORFOLK ISLAND, DECEASED
Applicant
ORDER MADE BY:
BESANKO CJ
DATE OF ORDER:
9 NOVEMBER 2023
THE COURT ORDERS THAT:
1.To the extent necessary, the Deputy Curator be heard further on the form of the orders to be made.
REASONS FOR JUDGMENT
BESANKO CJ:
Introduction
This is an application by the Deputy Curator of Deceased Estates (the Deputy Curator) pursuant to s 130 of the Administration and Probate Act 2006 (NI) and pursuant to the Trustee Act 1931 (NI) and s 63 of the Trustee Act 1925 (NSW) for the opinion, advice, directions and/or determinations and orders of the Court on certain questions and issues arising in the administration of the estate of Amy Arabella Quintal, late of Norfolk Island, deceased (the deceased) and as trustee of funds held in the estate. The questions and issues arising in the administration of the estate and relating to funds held in the estate are as follows:
1.Whether the Deputy Curator can cease any further searches, including advertisement, to locate the beneficiary, John Edward Quintal, and any next of kin claiming under him;
2.Whether the Deputy Curator is entitled to presume the death of John Edward Quintal at any, and if so, at what date;
3.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 beneficiary, John Edward Quintal, or otherwise as the case may be, the Deputy Curator would be justified in distributing the share estate of the deceased held on trust for John Edward Quintal on the following basis:
(a)equally to the brothers and sisters of John Edward Quintal alive at the date nominated by the Court, provided if any brother or sister died before that date leaving issue surviving at that date, those issue shall take their parent's share.
4.That the Deputy Curator be entitled to deduct commission and the expenses incurred in the administration and these proceedings from the trust monies prior to distribution; …
The application was supported by an affidavit of the Deputy Curator and two affidavits of her solicitor, Mr Frederick John Grose. The office of Curator of Deceased Estates (the Curator) is presently vacant. The Deputy Curator may exercise any function of the Curator subject to any direction by the Curator (s 5 of the Administration and Probate Act 2006 (NI)).
The deceased died on Norfolk Island on 31 May 1922. She was 46 years of age. She was married to Mr Joseph Atkins Quintal on Norfolk Island when she was 16 years of age. She had nine children who survived her and two who died before her.
On 13 April 1971, Letters of Administration were issued by the Supreme Court of Norfolk Island in its probate jurisdiction in relation to the estate, goods, chattels, credits and effects of the deceased. The Letters of Administration were granted to the Curator of Deceased Persons’ Estates.
John Edward Quintal was one of the deceased’s children. He was born on Norfolk Island on 4 July 1912 and the deceased and Mr Joseph Atkins Quintal are shown as his parents on his birth certificate.
The Deputy Curator has reviewed the files of the Curator. Those files indicate that the only asset in the deceased’s estate was land described as Portion 42f which was an unimproved block of land on Norfolk Island with an area of 1.8 hectares. In about 1973, the land was partitioned and subdivided and there was a distribution in specie, that is to say, individual lots were transferred to the deceased’s children. John Edward Quintal, as a son of the deceased, was entitled to a share in the deceased’s estate. I will refer to him as the beneficiary. His whereabouts at the time of distribution were unknown and inquiries with family members and other searches and inquiries failed to locate him. His share of the estate became land which was described as part of Portion 42f1 and was held in trust by the Curator. That portion was sold in 1987 and the beneficiary’s share of the proceeds was $7,887.94. That amount was invested and the amount presently held by the Deputy Curator is $24,972.48.
Having regard to the matters referred to in the first affidavit of her solicitor (as summarised below), the Deputy Curator has formed the belief that the whereabouts of the beneficiary has been unknown for many years and that further investigations and searches, including by notices in the newspaper or other means, are unlikely to progress matters further. Further, the Deputy Curator believes that having regard to the beneficiary’s date of birth and the fact that his last known contact with family members was in 1937, it can be presumed that he has died. Finally, the Deputy Curator believes that having regard to his age and the lack of family information, there is a real possibility that a death certificate recording the death of a John Quintal in Sydney on 10 April 1954 refers to the beneficiary. The death certificate to which the Deputy Curator refers records the death of a John Edward Quintal in Sydney on 10 April 1954. The certificate shows the age of that deceased person as 42 years. The beneficiary was born in 1912 and would have been 42 years of age in 1954.
The Deputy Curator seeks permission to distribute the share of John Edward Quintal to his brothers and sisters alive on 10 April 1954, or at such other dates as the Court may nominate, provided that if any brother or sister has died before that date, leaving issue alive at that date, those issue will take their parent’s share.
The orders sought by the Deputy Curator are as follows:
1.That the Deputy Curator can cease making any further searches, including advertisement, to locate the beneficiary, John Edward Quintal, and any next of kin claiming under him;
2.That for the purposes of distribution of the beneficiary’s share in the estate the Deputy Curator is entitled to presume the beneficiary, John Edward Quintal, has died intestate without leaving a spouse, issue or parents and the likely date of death is 10 April 1954;
3.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 beneficiary, John Edward Quintal, or otherwise as the case may be, the Deputy Curator would be justified in distributing the share estate of the deceased held on trust for John Edward Quintal on the following basis:
(a)equally to the brothers and sisters of John Edward Quintal alive at the date nominated by the Court, provided if any brother or sister died before that date leaving children surviving at that date, those children shall take their parent’s share;
4.That the Deputy Curator be entitled to deduct statutory commission and the expenses incurred in the administration and these proceedings from the trust monies prior to distribution;
5.The Deputy Curator have liberty to refer the matter back to the Court on seven days notice should any further question or issue arise.
The Facts
In his first affidavit, Mr Grose deposes to the fact that he has carried out a review of the files of the Curator in relation to the estate of the deceased and, in addition, he has made his own further inquiries and investigations.
Mr Grose states that the deceased was survived by her husband, Joseph Atkins Quintal, and nine children, one of whom was the beneficiary. Two other children predeceased the deceased leaving no spouse or issue surviving them.
Mr Grose’s affidavit exhibits a letter dated 22 March 1973 from the Curator to Mrs Agnes May, who was a sister of the beneficiary. The Curator wrote to Mrs May seeking information about the deceased and her children. Mrs May responded by letter dated 15 June 1973 and, among other things, she said the following:
We advertised in the New Zealand newspapers to try & contact my two nieces who lives [sic] there & also my brother John Edward Dicketts who was last known to be there & I also wrote personal letters to no avail … I have no idea of brother John Edward Dicketts address. I only know he was in New Zealand somewhere a few years ago.
In 1986 and 1987, the then Curator carried out extensive searches for the beneficiary in New Zealand and in New South Wales. The Registrar General’s office in New Zealand advised that searches made under the names, “John Edward Quintal”, “John Edward Dicketts” and “Jack Kingston” failed to locate any record of death entries for any of those names for the period from 1970 to 1986.
Mr Grose deposes to the fact that he has carried out internet searches for details of any death certificates or notices, probates and any other archival records under those names or even under the surnames only of “Quintal” and “Dicketts” on various New Zealand internet sites. Mr Grose found no death records under the name of “John Quintal” or “John Edward Quintal”. He found one death and probate record under the name “John Edward Dicketts” who died in Auckland, New Zealand on 15 January 1940. He was not the beneficiary because the evidence in this case establishes that the beneficiary was alive and enlisted in the Australian Armed Forces on 18 July 1941 in New South Wales. Mr Grose found four immigration passenger records under the names “John Quintal” and “John Edward Quintal”. He exhibits those records. They indicate that John Quintal transited in Auckland, New Zealand on his ship voyages between Sydney and San Francisco or Sydney and Los Angeles, USA in 1933, 1934, 1935 and 1936. As Mr Grose explains, the age of the person and dates of travel in those records are consistent with further facts set out in Mr Grose’s affidavit and the age of the beneficiary at that time and appear to relate to the beneficiary. Mr Grose could not find any other records available on the internet that appeared relevant to the beneficiary in New Zealand.
Mr Grose deposes to the fact that he has carried out extensive internet searches on Australian government and other internet web sites for information and records relating to the beneficiary under the various names, “John Quintal”, “John Dicketts” and “John Kingston-Quintal”. Mr Grose found a number of newspapers articles that appeared to relate to the beneficiary. Those newspaper articles were published in the period from July 1933 to May 1937 and they show that the beneficiary was in Sydney and the ward of Ms S F Irving-Cummings during at least part of that time. They also state that he had worked as a hairdresser to the movie stars in the United States.
Mr Grose was unable to locate any further information relating to the beneficiary until 1941 when the beneficiary enlisted in the Australian Army as a Signalman – Telephone Operator. Mr Grose exhibits the records of the Australian Military Forces relating to the beneficiary which he downloaded from the National Australian Archives.
Mr Grose refers to the last page of the Army records which state that the beneficiary attained 7th class at a public school, but had no Intermediate, Leaving, Technical, University or other diplomas or qualifications. There is no reference to him holding qualifications in hairdressing, which (as I have said) was an occupation referred to in some of the newspaper articles.
Mr Grose deposes to the fact that in the past, the Curator had conducted searches with the Registrar of Births Deaths and Marriages, New South Wales, for death certificates for the beneficiary under the names, “John Edward Quintal” 1955–1986, “John Edward Dicketts” 1970–1986, and “Jack Kingston” 1970–1986. The Registrar’s reports indicate that there were no records for John Edward Quintal and John Edward Dicketts for those periods. A death certificate was found for a Jack Arthur Kingston who died on 9 May 1978. He was born in Queensland and is not the beneficiary.
The Curator also made inquiries with the Commonwealth Department of Veterans’ Affairs. The response he received was that the Department was unable to identify J E Quintal as a beneficiary of that department.
The Curator wrote to the Central Police Station in Sydney seeking information about the whereabouts or death of the beneficiary and the Police Missing Persons Unit replied by letter dated 29 May 1986. The latter indicated that no trace was found of any death certificate relating to the beneficiary for the period from 1972 to 1974.
On 22 May 1986, the Curator wrote to the Australian Electoral Commission seeking information relating to John Edward Quintal, also known as John Edward Dicketts. In his reply of 25 June 1986, the Electoral Commissioner indicated that he was unable to locate any information in relation to the beneficiary.
On 23 July 2021, Mr Grose conducted a search of the National Personal Insolvency Index which provides information as to bankruptcies from 1929 to the present date. No record was found relating to a John Quintal.
Mr Grose has conducted searches of the Registry of Births Deaths and Marriages, New South Wales, on the internet under the names, “John Quintal; John Edward Quintal; John Dicketts and John Kingston”. It was those searches which led to the discovery of the death certificate of John Quintal, aged 42 years who died in Sydney on 10 April 1954.
The death certificate indicates that the deceased was married at the time of his death. Mr Grose conducted searches in each accessible State, but he was unable to locate any marriage certificate for a John Quintal. Information in the death certificate and information on the website of the Rookwood Church of England Cemetery indicates that John Quintal was buried with two others in a grave which had no headstone.
Mr Grose carried out a search of the Registrar-General in Queensland in relation to John Quintal and John Dicketts and found only one entry for a John Quintal who died in Townsville on 20 May 1976. He was aged 45 years and that did not match the beneficiary.
Mr Grose deposes to the fact that he has carried out internet searches of all State and Territory Registries, except South Australia and the Northern Territory which do not have digital access to records, and he has found no death or marriage records that could relate to the beneficiary under the names of John Quintal or John Dicketts.
Mr Grose states that the beneficiary was a son of the deceased and her husband, Joseph Atkins Quintal. They had the following children:
Stephen Christian Quintal (died 1967);
Byron George Quintal (died 19 October 1929);
Stanley Nathaniel Quintal (died 1933);
Herbert Atkin Quintal (died 1910);
Edward Allen Quintal (died 1945);
Agnes Maria Pearl May (died 1985);
Gilbert Lorenzo Quintal (died 1982);
Thomas Augustine Quintal (died 1965);
Audley Moore Mitchell Quintal (died 1921);
John Edward Quintal; and
Kenwick Herbert Kitchener Quintal (died 1940).
Joseph Atkins Quintal remarried after the death of the deceased. He married Amy Eliza Adams on 20 March 1926 and the children of that marriage were Amy Jocelyn Quintal and George Roslin Quintal.
On 14 October 2021, I made an order that the Deputy Curator give notice of this proceeding to Karenne Elizabeth Gatehouse and Marilyn [Marylin] Mae Quintal and any rights they may have in relation to the proceeding within 21 days. Karenne Gatehouse and Marylin Cooper are sisters and they are daughters of the late George Roslin Quintal who was the deceased’s half-brother. Mr Grose swore a second affidavit on 30 November 2021. He deposed to the fact that on 22 October 2021, he forwarded a letter and an email to Karenne Gatehouse attaching a copy of the Court order, a copy of the death certificate of John Quintal and an amended draft affidavit he had prepared and sent to her previously. Mr Grose received no response to his letter and email and he sent a further letter on 10 November 2021. He attempted to contact Karenne Gatehouse on three occasions. However, his calls were not answered. Mr Grose said that prior to his emails, he had communicated with Karenne Gatehouse, both by email and telephone, and that the draft affidavit was prepared by him as a result of those communications. He does not know any reason why Karenne Gatehouse had now chosen not to respond or acknowledge his letters and emails.
On 9 November 2021, Mr Grose forwarded an email to Marylin Cooper attaching a letter addressed to her, a copy of the Court order and a copy of the death certificate of John Quintal. On 10 November 2021, Mr Grose received an email from Marylin Cooper acknowledging receipt of his letter and advising that she did not wish to make submissions in the matter.
Should the Orders be made?
At the heart of the orders sought by the Deputy Curator are Benjamin orders which are orders deriving their name from the case of Re Benjamin; Neville v Benjamin [1902] 1 Ch 723 (Re Benjamin). In Williams, Mortimer & Sunnucks, Executors, Administrators and Probate, (17th ed, Sweet & Maxwell, 1993), the learned authors described Benjamin orders as follows: (at 938):
It may happen that distribution is 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, 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 – Re Benjamin [1902] 1 Ch 723, that is, an order permitting them to distribute the estate on the footing that certain events have or have not happened. The effect of such an order is to relieve 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 – Re Diplock [1951] AC 251.
In Wilcox v Poole [1974] 2 NSWLR 693, Mahoney J quoted from Daniell’s Chancery Practice, 8th ed, at pp 1539–1540 as to the basis for making such orders as follows (at 697):
There are some cases in which, although the interest of a party in the fund is not absolute, but subject to a contingency, it has been ordered to be paid out at once, the contingency being remote; and formerly the parties receiving the money entered into a recognizance or undertaking to refund it, in the event of the happening of the contingency; but it is no longer the practice, on making orders presuming death, to require security to refund. This has been done where the right of the parties was subject to the contingency of a female who is past the age of child-bearing, having children, or where a person has been presumed to be dead.
His Honour went on to describe the principle (at 697):
… 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.
His Honour also said (at 699):
the principle … does not affect the legal rights of the parties in the strict sense, and concedes that there is no entitlement as of right to the distribution of the property in question. The principle is one which is invoked merely by way of convenience in administration.
The level of persuasion required before the hypothetical assumptions may form the basis of such an order has been variously described as “probable inferences from the proved facts”, “practical probabilities”, a contingency which is not “remote” or events likely to occur as a matter of “practical certainty”. The basis of the principle is that it is convenient to make the order in the administration.
The facts of the case of Re Benjamin itself are instructive. The beneficiary aged 24 disappeared in September 1892 and had not been heard of since. Under his father’s will made in 1891, he was entitled to a share of the residuary estate in the event of him surviving the testator. The testator died in June 1893. In 1900, a summons was taken out by the trustee to have it determined how the beneficiary’s share ought to be dealt with. The Chancery Court (Joyce J) considered that it must be presumed that the beneficiary was dead. The Court said that there was no reason why he should hesitate to come back to England now, although there might have been at first. The Court said that the question was as to when he died. The Court said that if the beneficiary is to be presumed to be dead, then the onus of proof was on the administrator and the administrator had failed to adduce any evidence to show that the beneficiary survived the testator. The judge said that he himself considered it highly probable that the beneficiary died on 1 September 1892, or at all events shortly thereafter. The onus was on those claiming under him to prove that he survived the testator. The Court said that the trustees were at liberty to distribute, but as the Court was anxious not to do anything which would prevent his representative from making any claim if evidence of his death at any other time should subsequently be forthcoming, the Court would not declare that he was dead.
The Deputy Curator seeks a Benjamin order in respect of the distribution of the estate of the deceased, in particular, the distribution of the estate relating to the share of a beneficiary, John Edward Quintal. The evidence establishes that the deceased was survived by her husband, Joseph Atkins Quintal, and nine children. The whereabouts of John Edward Quintal is unknown and he could not be located. The evidence relating to the extensive inquiries, investigations and searches carried out by past Curators and recently on behalf of the Deputy Curator is set out above.
The following summary of the results of the investigations provided by the Deputy Curator is accurate:
•The Beneficiary left Norfolk Island as a young man;
•From at least 1933 until 1937, the Beneficiary resided in Sydney as a ward of Sophia Fanny Irving-Cummins;
•Travelled to the USA on two occasions in 1933 and 1936 respectively;
•Resided in Sydney and opened a hairdressing salon in 1937;
•Travelled to and from Norfolk Island for a holiday in 1937;
•Enlisted in the Australian Army in 1941;
•Listed as Absent Without Leave from Army from 1942 until 1946 when discharged for misconduct on 10 September 1946 following issue of a warrant for arrest in 1942;
•Visited his sister, Agnes Howard, in Victoria sometime shortly after World War II;
•No further record of the Beneficiary found except a Death certificate relating to a male person, JOHN QUINTAL, in Sydney on 10 April 1954. The deceased person was aged 42 years at time of death, the same age as the Beneficiary;
•No record could be found of the marriage of the Beneficiary;
•No record of any grant of probate under the name of the Beneficiary;
(Footnotes omitted.)
Although it makes no difference to my conclusions, I note that the beneficiary was three months short of his 42nd birthday on 10 April 1954.
The Deputy Curator submits that the evidence supports the following assumptions:
(1)The beneficiary was born on Norfolk Island on 4 July 1912;
(2)The beneficiary died sometime after 1942;
(3)It is reasonable to accept the death certificate of John Quintal aged 42 years who died on 10 April 1954 may record the death of the beneficiary;
(4)The John Quintal referred to in the aforesaid death certificate was buried with two other persons in the same grave at Rookwood Cemetery with no headstone;
(5)The beneficiary died intestate;
(6)At the time of his death, it is reasonable to assume the beneficiary was not married and not survived by children or any other issue despite the reference to his status shown as married in the aforesaid death certificate;
(7)At the time of his death, the beneficiary was domiciled in New South Wales.
I agree that the evidence supports these assumptions to a level of practical certainty and, in fact, I consider that on all the evidence it is practically certain, in the relevant sense, that the death certificate in (3) relates to the beneficiary.
In my opinion, all reasonable searches and investigations have been carried out to ascertain the circumstances relating to the beneficiary and further investigations, searches or inquiries, including by way of public notices or advertisements, are unlikely to provide any further evidence, information or assistance in determining the eligibility of the deceased’s estate. It would be an unreasonable impost on the estate to carry out any further investigations or to incur the expense of any further advertisements.
It is appropriate on the evidence to presume that the beneficiary died intestate without leaving a spouse, issue or parents and that the date of death was 10 April 1954. A Benjamin order should be made.
The only remaining question is whether the beneficiary’s half-brother, the late George Roslin Quintal, was entitled to a share in the beneficiary’s estate.
The common law choice of law rules relating to succession, that is, the distribution of the estate, it having been collected and debts and taxes paid, are clear. The law applied in the case of movable or personal property is that of the deceased’s domicile, whereas the law applied in the case of immovable or real property is that of the place of the property (Davies M, Bell A, Brereton P and Douglas M, Nygh’s Conflict of Laws in Australia, (10th ed, LexisNexis Butterworths, Australia, 2020) at 38.4 and following).
Clearly, the evidence in this case is not extensive, but so far as it goes it suggests that the beneficiary’s domicile at the time of death was New South Wales, whereas the place of the land which was part of the deceased’s estate on intestacy was Norfolk Island.
In her submissions, the Deputy Curator first noted that it is arguable the relevant law is that of Norfolk Island because Norfolk Island is the lex situs of the original immovable property being the deceased’s land which was later sold and converted to money. The Deputy Curator then noted that the proceedings are dealing with the distribution on intestacy of the beneficiary’s share which is a share in the trust fund and that it is the beneficiary’s intestacy that is under scrutiny and not a question relating to the deceased’s intestacy or the distribution of her estate. It follows (so the argument goes) that the relevant rules governing the distribution of the beneficiary’s share is the place of his domicile which may reasonably be assumed on the evidence to be New South Wales.
The answer to the issue of the applicable law is not as straightforward as might first appear. For one thing, the conversion of the beneficiary’s intestate estate from land to a fund took place many years after the nominated date of the deceased’s death and the case to which I was referred (Application of NSW Trustee & Guardian; Estate of Meyerfeld [2019] NSWSC 156) did not seem to me to clearly support the Deputy Curator’s submission. Further, as helpful as the Deputy Curator’s submissions were, I did not have the benefit of a contradictor. Finally, and decisively, I do not need to decide whether the submission is correct because at the relevant time, the effect of the law in this respect of New South Wales and the effect of the law in Norfolk Island was the same.
The law of Norfolk Island may be stated by reference to three periods. The Succession and Wills Act 1913 (NI) adopted the New South Wales laws relating to the succession and devolution of real and personal property on death, in particular the Wills, Probate and Administration Act 1898 and the Inheritance Act No. 19, 1901, to have force and effect on Norfolk Island for persons dying after the enactment of that Act. In 1961, the Probate and Administration Ordinance 1960–1961 (NI) adopted the Administration and Probate Ordinance 1929-1953 of the Australian Capital Territory in place of the New South Wales legislation deemed effective from 1 April 1960. For persons dying intestate after 1 July 1967, the distribution is governed under the Administration and Probate Act 2006 (NI).
During the period 1942 to 1954, ss 49 to 51 of the Wills, Probate and Administration Act 1898 (NSW) provided for the distribution of an estate on intestacy. Section 49 was in the following terms:
(1)Subject as aforesaid, and subject to the provisions of the next four succeeding sections, the administrator on intestacy, or in case of partial intestacy the executor or administrator with the will annexed, as the case may be, shall hold the real and personal estate, vesting as aforesaid, as to which any person dies intestate, in trust as to the personal estate for the persons who would be entitled thereto under the Statute of Distributions, and as to the real estate in trust for and as if the same had been devised to such persons as tenants in common.
The relevant sections of the Statute of Distributions 1670 are set out in the case of In the estate of Cullen (1976) 14 SASR 456 as follows (at 458):
6.In case there be no children nor any legal representatives of them, then one moiety of the said estate to be allotted to the wife of the intestate, the residue of the said estate to be distributed equally to every of the next of kindred of the intestate, who are in equal degree and those who legally represent them.
7.That there be no representations admitted among collaterals after brothers’ and sisters’ children: and in case there be no wife, then all the said estate to be distributed equally to and amongst the children: and in case there be no child, then to the next of kindred in equal degree of or unto the intestate, and their legal representatives as aforesaid, and in no other manner whatsoever.
In this context, the Deputy Curator referred to passages in Hastings R and Weir G, Probate Law and Practice, (2nd ed, Law Book Co, 1948) and, in particular, at 764, 769 and 779 which are to the effect that for distribution purposes, there was at that time no difference between brothers of the half blood and brothers of the whole blood (see also Hardingham I, Neave M and Ford H, Wills and Intestacy in Australia and New Zealand (2nd ed, Law Book Co, 1989) at 430 [2802]). The Deputy Curator submitted that if it is presumed that the beneficiary died sometime after 1945, then he was survived by four siblings, being Stephen Christian Quintal, Thomas Augustine Quintal, Gilbert Lorenzo Quintal and Agnes Maria May (nee Quintal). A brother, Stanley Nathaniel Quintal, predeceased the beneficiary leaving children surviving him and they would be entitled to a share per stirpes.
As I have said, the beneficiary was also survived by a half-brother, George Roslin Quintal. The Deputy Curator submits that the half-brother is entitled to a share if the deemed date of death of the beneficiary is before 1 January 1955, but not entitled to a share if the deemed date is later than that. That follows from a legislative amendment to the Wills, Probate and Administration Act 1898 (NSW).
The Administration of Estates Act No. 40 of 1954 (NSW) introduced s 61A into the Wills, Probate and Administration Act 1898 (NSW) and by that section, reversed the common law position that there was no distinction between brothers and sisters of the whole blood and brothers and sisters of the half blood. Section 61A is in the following terms:
(1)As respects a person dying intestate or partially intestate on or after the first day of January, one thousand nine, hundred and fifty-five, Division 2 of this Part of this Act has effect subject to the amendments set out in this section.
(2)For sections forty-nine, fifty and fifty-one the following sections are substituted:-
49.(1)Subject as aforesaid, and subject to the provisions of sections fifty, fifty-two and fifty-three of this Act, the real and personal estate, vesting as aforesaid, as ta which any person (in this section referred to as “the intestate”) dies intestate shall—
(a)be held by the administrator on intestacy, or in the case of partial intestacy by the executor or administrator with the will annexed, as the case may be—
(i) as to the real and personal estate-
…
(d)where the intestate leaves no issue or parent, in trust for the following persons living at the death of the intestate, and in the following order and manner, namely:-
First, in statutory trust for the brothers and sisters of the whole blood of the intestate; but if there is no member of this class; then
Secondly, in statutory trust for the brothers and sisters of the half blood of the intestate; but if there is no member of this class; then …
In conclusion, having regard to the finding that the beneficiary died on 10 April 1954, the beneficiary’s half-brother, George Roslin Quintal, was entitled to share in the beneficiary’s share of the deceased’s estate.
Conclusion
Before making orders, I will give the Deputy Curator the opportunity to check that the orders she has advanced accord with the conclusions set out in these reasons.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Besanko. Associate:
Dated: 9 November 2023
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