Gerald Peter Bullen and Phillip Leslie Wyatt as administrators of the estate of Barry Robert Bullen v Bullen
[2024] WASC 445
•27 NOVEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: GERALD PETER BULLEN and PHILLIP LESLIE WYATT as administrators of the estate of BARRY ROBERT BULLEN -v- BULLEN [2024] WASC 445
CORAM: MASTER RUSSELL
HEARD: 13 JUNE 2024 & ON THE PAPERS FOLLOWING FILING OF FURTHER EVIDENCE AND SUBMISSIONS ON 15 NOVEMBER 2024
DELIVERED : 27 NOVEMBER 2024
FILE NO/S: CIV 1599 of 2022
BETWEEN: GERALD PETER BULLEN as administrator of the estate of BARRY ROBERT BULLEN
First Plaintiff
PHILLIP LESLIE WYATT in his capacity as administrator of the estate of BARRY ROBERT BULLEN
Second Plaintiff
AND
GERALD PETER BULLEN
First Defendant
JANE BILTON
Second Defendant
TINA BULLEN
Third Defendant
LINDA BULLEN
Fourth Defendant
PAUL BULLEN
Fifth Defendant
Catchwords:
Administration of estates - Intestacy - Missing beneficiaries - Application for directions to distribute whole estate equally between remaining beneficiaries - Advertising - Benjamin order - Disclaimer - Orders as to administration and distribution of estate - Turns on own facts
Legislation:
Administration Act 1908 (WA) s 45
Trustees Act 1962 (WA) s 66, s 92(1)
Rules of the Supreme Court 1971 (WA) O 58 r 2
Result:
Application granted
Orders and directions made pursuant to s 66 Trustees Act 1962 (WA) and s 45 Administration Act 1908 (WA)
Category: B
Representation:
Counsel:
| First Plaintiff | : | Mr D Seymour |
| Second Plaintiff | : | Mr P L Wyatt |
| First Defendant | : | Notice to abide |
| Second Defendant | : | Notice to abide |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | No appearance |
| Fifth Defendant | : | No appearance |
Solicitors:
| First Plaintiff | : | Seymour Legal |
| Second Plaintiff | : | Phillip Wyatt Lawyers |
| First Defendant | : | Seymour Legal |
| Second Defendant | : | In person |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | No appearance |
| Fifth Defendant | : | No appearance |
Cases referred to in decision:
Application of the NSW Trustee and Guardian; Estate of SGB [2015] NSWSC 398
Australian Executor Trustees Ltd (As Administrator of the Estate of Reece William Hodder) v Hodder [2018] WASC 48
Bickford v Benson [2015] WASC 161
David Enzo Giovanetti as administrator of the estate of Mark Enrico Giovanetti -v- Giovanetti [2023] WASC 201
In the estate of Simmons (deceased) (1990) 56 SASR 1
Jemal David Zagami (In his Capacity as Administrator of the Deceased's Estate) v James [2017] WASC 292
Nolan v Nolan [2011] WASC 224
Pacella v Sherborne [2009] WASC 58
Re Application by Little (Estate of Bruce Frederick Little) [2023] NSWSC 402
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 Birchall; Birchall v Ashton (1889) 40 Ch D 436
Re Green's Will Trusts; Fitzgerald-Hart v A-G [1985] 3 All ER 455
Re Scott (decd) - Widdows v Friends of the Clergy Corporation and Others (1975) 2 All ER 1033
Shaw v McKean as executor of the estate of the late Ellen Mary May McKean [2023] QSC 261
MASTER RUSSELL:
Introduction
The plaintiffs, Gerald Peter Bullen and Phillip Leslie Wyatt, are the administrators of the estate of the late Barry Robert Bullen (Estate).
The first plaintiff, Gerald Peter Bullen, is the deceased's brother. He is also the first defendant, in his capacity as a beneficiary of the Estate. The other defendants are also beneficiaries of the Estate.
The second defendant, Jane Bilton, is the deceased's niece. She lives in England. The first and second defendants have each entered an appearance and filed a notice of intention to abide.
The third defendant, Tina Bullen, is the deceased's step‑sister. She also resides in England. She has been served with the originating summons and is on notice of the proceedings but has not entered an appearance. The plaintiffs' solicitor's attempts to engage with the third defendant have, to date, been unsuccessful.
The fourth and fifth defendants, Linda Bullen and Paul Bullen, are step‑siblings of the deceased. The plaintiffs have been unable to locate either of them.
In these reasons, I will refer to the plaintiffs together as the administrators. When referring to the defendants, as many of them share the same surname, with no disrespect to any of them, I will refer to them by their first names.
By originating summons filed on 14 June 2022, as amended on 18 June 2024, the administrators apply for orders pursuant to s 66 of the Trustees Act 1962 (WA) and directions pursuant to s 45 of the Administration Act 1908 (WA) in relation to the administration of the Estate.
The administrators initially sought a declaration that Tina had disclaimed her entitlement to share in the Estate. For reasons I will outline, they now seek directions or orders that they be permitted to use her share of the Estate to fund further efforts to engage with her and to take other necessary steps so that she may receive her entitlement, if she wishes to. They seek those directions or orders pursuant to O 58 r 2 of the Rules of the Supreme Court 1971 (WA) (RSC), s 45 of the Administration Act, alternatively s 92 of the Trustees Act 1962 (WA).
In support of the application, the plaintiffs rely on:
(a)an affidavit sworn by Gerald in his capacity as an administrator of the Estate on 3 May 2022;
(b)affidavits of Damon Bryce Seymour affirmed on 20 March 2023, 29 May 2024, 30 August 2024 and 1 October 2024;
(c)an affidavit of Phillip Leslie Wyatt in his capacity as an administrator of the Estate sworn on 19 June 2024; and
(d)written submissions filed on 18 June 2024 and 15 November 2024.
Relevant factual background
The following relevant factual background is derived from the affidavits filed in support of the application.
The deceased died intestate on 13 May 2021 leaving no surviving parents, wife, de facto partner or children.
Letters of administration ad colligendum bona de functi were granted to Gerald on 11 October 2021. On 24 April 2024, the court issued a grant of letters of administration to Gerald and to Phillip Leslie Wyatt, a solicitor. Mr Wyatt was joined as the second plaintiff in this proceeding by orders made on 13 June 2024.
The value of the Estate is modest at $113,249.60, as at 19 June 2024. The Estate is yet to be distributed as the administrators have been unable to locate Linda and Paul, whose address and whereabouts are unknown. They are believed to reside in the United Kingdom. Linda and Paul have not been located despite enquiries made by Gerald and his lawyers, Seymour Legal. Tracing enquiries have also been made through a local agent retained by Seymour Legal, on behalf of Gerald in his capacity as administrator, to no avail.
Despite the enquiries made, the whereabouts of Linda and Paul, whether they are still living and whether they have any children is unknown.
Tina has been located. She resides in London in the United Kingdom. Seymour Legal have been in contact with her by email and have made several attempts to engage with her to verify her identity and to obtain information from her to arrange payment of her entitlement. They also asked her if she had information about Linda and Paul.
Seymour Legal have provided information to Tina setting out details of the Estate, her entitlement to share in the Estate, about the application to this court, the orders sought and their effect and have recommended she seek independent legal advice.
On 24 August 2021, Tina responded to an email sent to her by Seymour Legal thanking them for their email, saying she did not have any contact with Linda Bullen and did not know where she is. Tina said that she had mental health problems but did not elaborate. She said it would be too much for her to deal with and asked Seymour Legal to keep it simple for her. She concluded her email saying she hoped to hear from them.
The nature and extent of any mental health issues suffered by Tina is unknown.
In an email sent to Tina on 25 August 2021, Seymour Legal asked Tina if she could provide contact details for Paul. Mr Seymour said he would keep the process as simple as he could. He informed Tina that he would need to confirm her identity, which she could do by going to a public notary near her.
On 26 August 2021, Tina sent an email to Seymour Legal, stating:
please dont ever email me ever again ok,dont like scammers,this is a scam,so,please dont contact me ever again.im not that stupid to give you my info/details etc,i dont know you.i also dont want to be involved if its is true though,.let gerald sort things out himself without me in all this. but just let me know the outcome of it all in the end though without involving me ok.in not interested.dont know why he got you involved for either.,but as i said,i dont know if this is a scam or not,so,you wont be getting any info out of me.anyone can put who they are for real online to make them look real when they are fake.
i just want to be left alone ok.so,dont bother me again ok
tina bullen
Mr Seymour responded by email on 27 August 2021 seeking to reassure Tina that his communication and her entitlement in the Estate was genuine. He provided telephone numbers for her to contact Gerald and Jane. He said that before he could make a distribution to Tina, he needed to confirm her identity and would need her to provide her bank details to transfer the money to her in due course.
Further attempts to engage with Tina have also been made by the local agent retained by Seymour Legal, including through personal attendance at her residential address, but they have been unable to see or speak to her.
Seymour Legal sent a letter to Tina dated 21 February 2022 informing her they had engaged a local agent, providing the agent's details to her and asking her to contact the agent. A certified copy of the grant was enclosed with the letter.
A further email was sent to Tina by Seymour Legal on 13 April 2022 regarding the Estate, her entitlement and these proceedings. The letter provided details of a solicitor in the United Kingdom for Tina to contact to confirm that what was being communicated was genuine and reiterating that she should seek independent legal advice.
Attempts were made through the Foreign Process Section of the Royal Courts of Justice in London to serve Tina with the originating process. A further email was sent to her by Seymour Legal on 17 February 2023 informing Tina of the attempts to serve her and asking her to contact the Royal Court of Justice. Tina was subsequently served with notice of the proceedings.
Regrettably, all attempts made to engage with Tina since her email of 26 August 2021 have been unsuccessful. It appears she had concerns about the communications being a 'scam' and was reluctant to provide her personal information. Mr Seymour has gone to significant effort to alleviate any such concern but there has been no further contact from Tina and no response to communication and personal attendance by the local agent.
In relation to the missing beneficiaries and any other person who may have a claim, advertisements have been published in the West Australian newspaper in March 2023 and in the Government Gazette on 30 August 2024. No notice of any claim has been received. The time for response has long since lapsed.
Legal principles
Relevantly, s 14 of the Administration Act provides that where someone dies intestate leaving no parents, wife, de facto partner or children, their estate is to be divided in equal shares between any brothers and sisters and any children of a deceased brother or sister.
Section 12B of the Administration Act provides that, for the purpose of determining who is entitled to participate in the distribution of an intestate estate, it is immaterial whether a relationship is of the whole blood or of the half blood.
Section 66 of the Trustees Act
Section 66 of the Trustees Act applies where property is held by a trustee and the property, or any part of it, cannot be distributed because the trustee does not know whether any person or member of any class of person who is, or may be, entitled in distribution exists, is alive or dead, or cannot be found. It allows for the publication of advertisements by a trustee calling for anyone who may be entitled in distribution to send in a claim, and for directions to be sought and given as to distribution of a share of an unknown or missing beneficiary.
Section 66(5) of the Trustees Act allows the court, upon proof of the matters stated to make an order that the trustee be at liberty to distribute the property as if the persons specified in the order did not exist or had died, relevantly, before the deceased. Those matters include the inquiries made, the results of the inquiries and advertisements and any claims received.
An order of the kind contemplated by s 66(5) is known as a Benjamin Order, taking its name from Re Benjamin; Neville v Benjamin.[1]
[1] Re Benjamin; Neville v Benjamin [1902] 1 Ch 723.
I refer to and respectfully adopt Acting Master McDonald's summary of the principles applicable to an application for distribution of an estate under s 66 of the Trustees Act, by reference to the authorities referred to, in David Enzo Giovanetti as Administrator of the Estate of Mark Enrico Giovanetti v Giovanetti,[2] from which the following principles are derived:
(a)Where a beneficiary cannot be located, evidence that the beneficiary has died is not required to make an order under s 66. The jurisdiction to make an order arises 'on the basis of the practical probabilities of the facts as known to the court at the time of making the order'.[3]
(b)An order under s 66 is not a positive declaration of rights and is made regardless of the fact there may be some uncertainty as to the existence of a beneficiary.[4]
(c)All that is necessary for making an order is that the court is satisfied that it is probable that the beneficiaries 'have been ascertained and that no reasonable further enquiries could be made which would improve the state of the evidence.'[5]
(d)The size of the estate may be a relevant factor in determining the reasonableness of any further enquiries.[6]
(e)The effect of an order under s 66 is to relieve an administrator from liability in the event that the basis on which the estate is distributed turns out to be wrong, not to extinguish any right of a missing beneficiary who is later found.[7]
Section 45 of the Administration Act
[2] David Enzo Giovanetti as administrator of the estate of Mark Enrico Giovanetti -v- Giovanetti [2023] WASC 201 (Giovanetti) [11] - [13]. See also Nolan v Nolan [2011] WASC 224 [24] - [34], in which E M Heenan J explains the genesis and history of the court’s jurisdiction to make such an order.
[3] Giovanetti [11], citing Bickford v Benson [2015] WASC 161 (Bickford) [13] (Jenkins J); Re Green's Will Trusts; Fitzgerald-Hart v The Attorney General [1985] 3 All ER 455 [462] - [463]; Re Application for Grant of Presumption of Death; Ex parte Jenkins[2008] WASC 49 [22].
[4] Giovanetti [11], citing Bickford [14]; Re Application of New South Wales Trustee and Guardian [2014] NSWSC 1857 [4], [6].
[5] Giovanetti [13], citing Re Application by Little (Estate of Bruce Frederick Little) [2023] NSWSC 402 (Re Application by Little) [35].
[6] Re Application by Little [34].
[7] Giovanetti [12], referring to Williams, Mortimer and Sunnucks on Executors, Administrators and probate (21st ed, 2018, Sweet & Maxwell) [65-18].
Relevantly s 45(1) of the Administration Act provides:
45. Court may settle all questions arising in administration
(1) The Court may make such order with reference to any question arising in respect of any will or administration, or with reference to the distribution or application of any real and personal estate which an executor or administrator or Public Trustee may have in hand, or as to the residue of the estate, as the circumstances of the case may require.
Master Sanderson considered the court's jurisdiction under s 45 of the Administration Act in Pacella v Sherborne.[8] The Master observed that s 45 is in broad and general terms and refers to 'any question arising in respect of any Will or administration'. He stated that the phrase is entirely open-ended and clearly shows the legislature was intending to provide the court with the widest possible discretion to deal with problems which arise in relation to an estate.[9] He was satisfied that the court has jurisdiction under s 45 of the Administration Act to settle questions relating, relevantly, to how an executor or administrator should administer an estate. In my view, this includes and extends to how the Estate, in this case, is to be distributed.
[8] Pacella v Sherborne [2009] WASC 58.
[9] Pacella v Sherbone [12].
The broad power under s 45 of the Administration Act also extends to making orders concerning disclaimer of an interest under a will or on intestacy.
Disclaimer
A beneficiary is not obliged to accept a gift made to them by a will or their entitlement that arises on the intestacy of a deceased. The beneficiary may disclaim the gift or entitlement.
Allanson J considered the relevant principles in Jemal David Zagami (In his Capacity as Administrator of the Deceased's Estate) v James,[10] in which his Honour found that an oral disclaimer by a person entitled to distribution of an intestate estate was effective.
[10] Jemal David Zagami (In his Capacity as Administrator of the Deceased's Estate) v James [2017] WASC 292 (Zagami) [18] - [20], [22] - [23] (Allanson J).
Having regard to Allanson J's decision in Zagami, the authorities his Honour considered and applied, and the further authorities noted, the principles to be applied in determining whether a beneficiary has disclaimed an interest in an estate may be summarised as follows:
1.Disclaimer is a refusal to accept an interest.[11]
2.A disclaimer must be communicated to the executor or administrator, as applicable. There is no formal requirement for communication. A beneficiary may disclaim the benefit pursuant to a will or on intestacy in writing, orally or by conduct.[12]
3.To be effective, a disclaimer must be pre-emptory. It must be made before distribution of the gift or entitlement to the beneficiary. It must constitute an absolute rejection of the gift or interest, evince a final and non-negotiable refusal to accept it and cannot be retracted.[13]
4.Where a beneficiary disclaims his or her interest in intestacy, the disclaimed interest of the beneficiary 'devolves upon other members of that beneficiary class as if the disqualified or disclaiming person were non-existent'.[14]
[11] Zagami [19], citing Re Scott (decd): Widdows v Friends of the Clergy Corporation and Others (1975) 2 All ER 1033 (Re Scott), 1044-5.
[12] Zagami [23], citing Application of the NSW Trustee and Guardian; Estate of SGB [2015] NSWSC 398 [20]. See also Shaw v McKean as executor of the estate of the late Ellen Mary May McKean [2023] QSC 261 [26]; In the estate of Simmons (deceased) (1990) 56 SASR 1, 5; Re Birchall; Birchall v Ashton (1889) 40 Ch D 436; 439.
[13] Zagami [22], referring to Neville Crago, 'Principles of Disclaimer of Gifts' (1999) 28(1) UWA LR 65, 78. See also Australian Executor Trustees Ltd (As Administrator of the Estate of Reece William Hodder) v Hodder [2018] WASC 48 (Australian Executor Trustees Ltd v Hodder) [25] (Allanson J).
[14] Zagami [20], citing Re Scott [14]; In the Estate of Simmons (deceased) (1990) 56 SASR 1, 14. See also Australian Executor Trustees Ltd v Hodder [25].
Determination
The amount available for distribution to Tina, Linda and Paul, as at 19 June 2024, is approximately $22,000 less costs incurred by the Estate.
Orders sought in relation to Linda and Paul
I am satisfied on the evidence adduced that the administrators have conducted extensive enquiries, including through local agents instructed on their behalf by Seymour Legal to locate Linda and Paul, and to engage with Tina. Advertisements have been published calling for any person claiming to have an interest in the Estate to notify the administrators' lawyer. No claims have been received.
The enquiries and steps taken to locate Linda and Paul in the circumstances are, in my view, appropriate. Having regard to the size of the Estate and the rights of the remaining beneficiaries, I am satisfied there are no further reasonable steps that would improve the position or the state of the evidence. It is appropriate, in my view, to grant the orders sought under s 66(5) of the Trustees Act in relation to Linda and Paul. That is that the Estate be distributed as if they did not exist or had died before the deceased.
The order will protect the administrators and enable them to distribute the Estate to the known beneficiaries, who have been informed of the possibility of a tracing action by Linda and Paul if they are still alive and become aware of their entitlement, subject to any relevant limitation period.
Orders sought in relation to Tina
Rather than proceed with their application for a declaration that Tina has disclaimed her interest in the Estate, at this stage, the administrators seek directions pursuant to O 58 r 2 and s 45 of the Administration Act, alternatively s 92 of the Trustees Act.
There is no evidence before the court and it is unknown what, if any, mental health issues Tina has. In the circumstances and given the concerns expressed by Tina as to whether she is genuinely entitled to distribution from the Estate and disclosing her personal information, I accept the submissions made on behalf of the administrators to the effect that the court should err on the side of caution.
I agree that, rather than proceed to determine whether Tina has disclaimed her interest, at this stage the better course is to make the orders sought to allow distribution to Gerald and Jane of their entitlement in distribution and for Mr Wyatt to continue to hold Tina's entitlement on trust for her on behalf of the administrators. Orders are also sought that the administrators be at liberty to use Tina's share in the Estate to fund the further costs associated with contacting her and facilitating distribution to her.
Relevantly, an administrator may apply under O 58 r 2 RSC by originating summons returnable in chambers for determination of any question arising in the administration of the estate, or directing the administrator or trustee to do or abstain from doing any particular act in their character as administrators or trustees. There is also a question concerning the rights of Tina as someone identified as having an interest in the Estate as the deceased's step-sister.
I accept that the court has power to make orders and give directions of the kind sought. I have already considered the broad powers under s 45 of the Administration Act. The Court also has power under s 92(1) of the Trustees Act to give directions concerning any property subject to a trust, or in respect of the management or administration of trust property. The relevant trust property in this case is the funds held on trust by the administrators in respect of Tina's interest as a beneficiary of the Estate.
I am satisfied that it is within the court's power and an appropriate exercise of the court's jurisdiction to make orders to the effect sought. That is that the administrators be at liberty to use funds from Tina's share of the Estate to meet the further costs associated with communicating with her, verifying her identity and other necessary information to enable the administrators to distribute her entitlement to her. This should be limited to what is reasonably necessary to achieve those ends.
It is hoped that when Tina is provided with a copy and reads this decision of the court, any concerns she has about the genuineness of the communications she has received about her interest in the Estate will be alleviated and arrangements can be made to facilitate distribution of her entitlement to her.
There will be liberty to apply in relation to the distribution to Tina, including to renew the application in relation to any disclaimer by Tina of her interest, in the event that is not the case.
Conclusion and orders
For the reasons outlined, I am satisfied that it is appropriate to make the orders sought. Subject to hearing from the plaintiffs as to any matters arising, the final form of orders and in relation to costs, orders will be made as follows:
1.The plaintiffs are at liberty to distribute the estate of the late Barry Robert Bullen (Estate) as if the fourth and fifth defendants did not exist, or had died before the deceased, and to distribute the Estate in equal shares to the first, second and third defendants.
2.The plaintiffs are at liberty to use so much of the third defendant's share of the Estate to contact the third defendant and to take such steps as are reasonably necessary to distribute the third defendant's share of the Estate to her, including the costs of engaging agents and lawyers in the United Kingdom to contact the third defendant and other costs incurred by the Estate in dealing with distribution of the third defendant's share.
3.There will be liberty to apply in relation to the distribution to the third defendant, including to renew the plaintiffs' application in relation to any disclaimer by the third defendant of her interest.
4.The plaintiffs' costs of the application be paid on a solicitor client basis from the Estate.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
MJM
A/Associate to Master Russell
27 NOVEMBER 2024
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