Gonzales v Claridades

[2003] NSWSC 508

Reported Decision: 58 NSWLR 188

Supreme Court

CITATION:	Gonzales v Claridades [2003] NSWSC 508
HEARING DATE(S):	30 May 2003
JUDGMENT DATE:	12 June 2003
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
DECISION:	Application for interim distribution of residuary estate refused.
CATCHWORDS:	SUCCESSION- WILLS, PROBATE AND ADMINISTRATION- rules of public policy - forfeiture by killing -application to have funds released to person accused of murdering testator - EXECUTORS AND ADMINISTRATORS - what constitutes administration being completed - personal liability of representative for release of funds to wrong beneficiary - EXECUTORS AND ADMINISTRATORS - rights, powers and duties - duty to ascertain the beneficiaries - duty where notice of possible forfeiture by a beneficiary - PROCEDURE - administration of estates - application to release funds to a possible beneficiary before estate administration complete - basis for a right of a beneficiary from an estate not fully administered - appropriation - interim distributions -whether beneficiary has a right to be paid where there is an undecided forfeiture question - PROCEDURE - administration of estates - summary relief requiring distribution by executor - when appropriate - EVIDENCE - CIVIL PROCEEDINGS - effect of a verdict in criminal proceedings on a factual question in civil proceedings - admissibility and significance of a conviction - EVIDENCE - onus of proof - presumption of innocence - role in proof of criminal or seriously wrongful acts within civil proceedings - whether applicable in litigation where whether such an act has occurred is not being decided.
LEGISLATION CITED:	Evidence Act 1995 Family Provision Act 1982 Forfeiture Act 1995 Inheritance (Family Provision) Act 1938 Justices Act 1902 Real Property Act 1900 Trustee Act 1925 Wills, Probate and Administration Act 1898
CASES CITED:	Re Anderson (1953) 53 SR(NSW) 520 Re Benjamin [1902] 1 Ch 723 Blackman v Permanent Trustee Co Ltd [2003] NSWSC 305 Briginshaw v Briginshaw (1938) 60 CLR 336 The Brisbane Shipwrights' Provident Union & Ors v Heggie (1906) 3 CLR 686 In Re Buckton; Buckton v Buckton [1907] 2 Ch 406 Burns Philp Trustee Co Ltd v Viney [1982] 2 NSWLR 216 Clark v Flanagan (1934) 52 CLR 416 Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) 188 CLR 501 Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694 In the Will of Hannah Cowell (Deceased) (1894) 16 NSWR B&P 51 In the Estate of Crippin [1911] P 108, [1911] All ER Rep 207 In Re Cunningham; Sproule v Quested (1914) 31 WN (NSW) 44 Re Dellow's Will Trusts [1964] 1 WLR 451 Emanuel v Emanuel [1946] P 115 Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26 In the Estate of Julian Bernard Hall deceased; Hall v Knight and Baxter [1914] P 1 In Re Halston; Ewen v Halson [1912] 1 Ch 435 Helton v Allen (1940) 63 CLR 691 Hollington v F Hewthorn & Co Ltd [1943] KB 587 Joseph Constantine Steamship Line Limited v Imperial Smelting Corporation Limited [1942] AC 154 McMahon v Gould (1982) 7 ACLR 202 Murdocca v Murdocca (No.2) [2002] NSWSC 505 O'Brien v Ritchie (1931) 48 WN (NSW) 85 Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 In Re Plaister, Perpetual Trustee Company v Crawshaw (1934) 34 SR(NSW) 547 In Re Ralphs; Ralphs v District Bank Ltd [1968] 1 WLR 1522 In Re Raphael [1973] 1 WLR 998 Shelley v NSW Institution for the Deaf, Dumb and the Blind [1919] AC 650 In Re Stone; Read v Dubua (1936) 36 SR(NSW) 508 Troja v Troja (1994) 33 NSWLR 269 Wilcox v Poole [1974] 2 NSWLR 693 Wyndham v Mackenzie (1918) 25 CLR 172 Wright v Wright (1948) 77 CLR 191 In the Will of Charles A York (1894) 15 NSWR B&P 24
PARTIES :	Sef Gonzales - Plaintiff Amelita Claridades - Defendant
FILE NUMBER(S):	SC 2260/03
COUNSEL:	B W Rayment QC; P Kintominas - Plaintiff J Wilson - Defendant
SOLICITORS:	Benjamin & Khoury - Plaintiff R E Barros & Company - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

12 JUNE 2003

2260/03 SEF GONZALES V AMELITA CLARIDADES

JUDGMENT

1 HIS HONOUR: Teddy and Mary Gonzales had two children, Sef and Clodine. On 10 July 2001 Teddy, Mary and Clodine Gonzales were killed at their home. On 13 June 2002 Sef Gonzales was charged with their murder. He has pleaded not guilty.

2 Teddy and Mary Gonzales made a joint Will on 23 February 1998. It made provision for an appointment of an executor and trustee. Other relevant provisions were:

“4. WE MAKE the following dispositions:
4.a Should one of us predecease the other, the entire estate of the deceased spouse shall be inherited by the surviving spouse.
4b. Should the surviving spouse die or should we die at the same time, the entire estate shall be divided equally between our two children SEF GONZALES and CLODINE GONZALES in equal shares as Joint Tenants.

3 Probate was granted of that Will to the Executrix, Amelita Claridades on 24 December 2002.

4 Of the three who died on 10 July 2001, Teddy Gonzales was the last to die. Hence, any assets of Mary Gonzales have flowed, under Clause 4(a) of her Will, into the Estate of Teddy Gonzales. No grant of representation has been obtained concerning the Estate of Clodine Gonzales. If she had any assets, and died intestate, section 61B(5) Wills, Probate and Administration Act 1898 would result, in conjunction with the Will of Mary Gonzales, in those assets flowing entirely into the Estate of Teddy Gonzales.

5 In these proceedings, Sef seeks an order that the Executrix pay him sufficient money from his father’s Estate to be able to finance his defence of the criminal charges.

6 There is a principle of public policy whereby a person who unlawfully kills another person cannot acquire any benefit which arises from the death of that person: Helton v Allen (1940) 63 CLR 691; Troja v Troja (1994) 33 NSWLR 269. The Forfeiture Act 1995 confers on the Court a discretionary power to relieve against that rule of public policy. However under section 4(2) Forfeiture Act 1995, the court cannot grant any such relief when the unlawful killing is murder.

7 If it is ultimately not established that Sef Gonzales killed any of his parents and sister, this rule of public policy will have no scope for operation. If it is ultimately established that Sef Gonzales murdered his parents and sister, the effect of the rule of public policy will be that he is unable to take the benefits which would otherwise flow to him under the Will of his father. If it is eventually established that he killed his father unlawfully, but in circumstances which do not amount to murder, and he is able to persuade the court to exercise the discretion under the Forfeiture Act 1995, he will be entitled to all or part of his father’s Estate.

8 If Sef Gonzales has murdered his father, the whole of Teddy Gonzales’ Estate will be distributed as on intestacy. If Sef Gonzales has unlawfully killed his father in circumstances which do not amount to murder, then to the extent to which a court might decline to relieve against the rule against forfeiture, the Estate of Teddy Gonzales will pass on intestacy. There may be various permutations of results if it is eventually established that he killed one or more but not all of his father, mother and sister, or if one or more of the killings do not amount to murder. The people entitled on intestacy to Teddy Gonzales’ Estate under New South Wales law are the parents of Teddy Gonzales, Mr and Mrs William Gonzales.

Position of the Estate

9 The inventory of property lodged in connection with the application for a grant of probate in the Estate of Teddy Gonzales identified property valued at, in round terms, $1,220,000. That included a house at North Ryde, and a home unit in Blacktown. As well as the assets disclosed in that application, Teddy Gonzales owned property in the Philippines.

10 At the date of the hearing, the Executrix had not completed her enquiries concerning assets owned by Teddy Gonzales in the Philippines. At the date of the hearing, the total liabilities of the Estate known to the Executrix were a little short of $12,000.

11 Advice has been received from lawyers in the Philippines to the effect that, if Teddy and Mary Gonzales had already acquired Australian Citizenship at the time of their death, there would be no need for a probate in the Philippines, but rather the Estate would pass under Australian laws, though subject to payment of certain Philippine taxes. There is no evidence in the present application concerning whether Teddy and Mary Gonzales had acquired Australian Citizenship. However there is no reason to doubt that, whatever the preconditions established by the law of the Philippines might be for dealing with the assets which Teddy Gonzales owned in the Philippines, it is the Will which he made on 23 February 1998 which will govern the disposition of those assets, if that Will is able as a matter of public policy to take effect.

12 The legal position concerning entitlement to the Philippine assets if there is an intestacy has not been investigated for the purpose of this present application. The Australian rule of private international law concerning succession on intestacy is that moveables pass in accordance with the law of the domicile of the deceased, while immovables pass in accordance with the law of the situs of the property: Nygh, Conflict of Laws in Australia, 6th edition, page 563-564. The evidence in this case does not disclose any consideration having been given, so far, to whether this Australian rule of private international law is one which would be recognised and applied by the legal system in the Philippines, whether the Philippine legal system has a rule of intestate succession of its own (whether to the same effect as the Australian rule, or different) which would be applied to the Philippine assets in the event of an intestacy, or to who are the people who would take on intestacy in accordance with the law of the Philippines.

The Work Involved in Conducting the Defence, and its Likely Cost

13 Since he was charged, Sef Gonzales has been in prison on remand. He has neither been tried, nor the subject of a committal hearing. The Crown proposes to conduct committal proceedings against him soon. The trial date for those committal proceedings has not yet been set, partly because this present application has been made.

14 The Crown brief for those committal proceedings has been served. It includes 13 volumes of written and other material, a volume of photographic material together with a CD containing negatives from 29 roles of film, 24 audio CDs of telephone intercept material, and in excess of 2,000 pages of material relating to exhibits and exhibit listings.

15 Mr Khoury, a solicitor experienced in criminal litigation, has been acting for Sef since he was charged. Mr Khoury estimates that to study all the material in the Crown brief will take at least 10 days. In addition, he estimates that there will be considerable time required and substantial work necessary to co-ordinate, order and tabulate the brief and to prepare a detailed chronology index, case outline and observations for counsel. He estimates that it will require a minimum of five lengthy conferences between counsel and Sef Gonzales to detail and work through the Crown brief and obtain instructions. His present expectation is that the defence would seek to have a substantial number of the witnesses listed in the Crown brief called to give oral evidence and be cross-examined at the committal, for which purpose an application under section 48E of the Justices Act 1902 would be made to the presiding Magistrate. While it would be for counsel to decide concerning which, if any, witnesses an application under section 48E would be made, and a matter for the Magistrate to decide which, if any, of the applications made under section 48E were granted, Mr Khoury estimates that the length of the committal proceedings would be unlikely to be less than two weeks and could well be more than three weeks. Because the Local Court usually requires written submissions when orders under section 48E are sought, it is likely that lengthy conferences between solicitor and counsel would be needed to prepare those submissions. The Crown brief includes some expert evidence. To deal with that expert evidence at the committal, Mr Khoury wishes to engage his own expert witnesses and have appropriate conferences with those experts. There may also need to be conferences with potential lay witnesses.

16 On present indications, the committal proceedings will be conducted for the Crown by Mr Mark Tedeschi QC, who is the Senior Crown Prosecutor for the State of New South Wales. Mr Khoury has stated that in his opinion:

“The seriousness of the charges and the difficulty of meeting the case alleged against the plaintiff mean that it is not appropriate for the committal proceedings to be conducted by a solicitor rather than by counsel, particularly having regard to the fact that the Crown will be represented by the most experienced Senior Crown Prosecutor in New South Wales.”

17 If Sef Gonzales is not able to have his representation at the committal hearing funded by the Estate, the likelihood is that his representation at the committal hearing would need to be funded by Legal Aid. Mr Humphreys, the Director, Criminal Law of the Legal Aid Commission of New South Wales has given evidence, which I accept, as follows:

“I have been provided with a draft application for legal aid prepared by Mr Khoury solicitor in relation to the plaintiff. On the basis of the information contained in that application, if the application is made in those terms to the Commission, the plaintiff would appear to be eligible for legal aid, assuming that the Equity Division refuses to permit funds to be made available from the Estate for his representation in the pending criminal proceedings.
Any grant for legal aid made in the case would be likely to extend to the forthcoming committal proceedings.”

18 He states that, in accordance with the guidelines relevant to committal proceedings in the Local Court, if legal aid were to be granted:

“… representation is restricted to the reimbursement of a solicitor only. There is a cap of two days hearing time for a single accused. The cap may be exceeded in exceptional circumstances with my approval or with the approval of the Senior Solicitor Criminal Assignments. Preparation time is ordinarily also allowed and in practice in a case such as the present three days preparation would be allowed so that a total of a five day hearing time would be allowed at solicitor rates. Those solicitor rates are $600 per day so that the total financial contribution available in respect of committal proceedings would be $3,000 and the representation permissible would be that of a solicitor only. Counsel would not be approved for the conduct of the committal proceedings and in particular the Public Defender would not be engaged for that purpose. It would make no difference for this purpose if the prosecutor was to be the Senior Crown Prosecutor Mr Tedeschi.
Up to 20 days preparation time would ordinarily be allowed prior to the trial of the proceedings. If preparation time in addition to the 5 day cap were required for the purpose of the committal proceedings it would be allowed by way of reduction from the period of up to 20 days allowed for the trial, so that it would not be funded again for the trial to the extent to which it may be used for the committal.”

19 So far as legal aid for a trial is concerned, if Sef Gonzales were to be committed for trial, Mr Humphreys says:

“… it is the policy of the Commission in murder cases to approve aid for either Senior Counsel or Junior Counsel but not both. In exceptional circumstances, aid may be approved for Senior and Junior Counsel. There is nothing in the present case that I am aware of which would bring it in to the category of being an exceptional case.
It is also Commission policy that a Public Defender should be briefed if one is available. The availability of a Public Defender is, in many cases, not known until an Arraignment hearing takes place in the Supreme Court. Normally, if aid is granted, particularly if the matter is a difficult one and likely to be an expensive case, the matter will be retained in-house in terms of a Commission solicitor. That Commission solicitor would most likely conduct the committal and then instruct a Public Defender at trial. In instructing a Public Defender, we make no distinction between either Senior or Junior Counsel. There is only one Public Defender who is Senior Counsel currently conducting trial work and that is Mr Peter Zahra, SC. I am unaware of his availability and more likely than not, conduct of Mr Gonzales matter would be assigned to one of the senior junior Public Defenders.
If a Public Defender is not available, then the Commission would consider briefing either Senior or Junior Counsel from the private Bar but not both. Again, this would only be ascertained after a trial date has been set at Arraignment in the Supreme Court.
You ask advice as to the rates of remuneration payable by the Commission to solicitors and counsel. For grants of aid made after 1 May 2003, the hourly rate for solicitors is $120.00 per hour to a maximum of $600.00 per day. Fees payable for Counsel in the Supreme Court are, $912.00 for Junior Counsel per day on a refresher rate and $1,488.00 for Senior Counsel, again on a refresher rate. Slightly higher fees are payable for the first day.”

20 On the basis of that approach to the funding of a trial, Mr Humphreys says:

“If for example, the trial of the proceedings took 6 weeks and on the basis that 4 weeks preparation was required, with Senior Counsel being briefed, if the matter were assigned to the private profession it would cost the Legal Aid Commission $105,000. I have calculated this at the rate of approximately $2,100 for Senior Counsel and a solicitor per day for 5 days per week amounting to $10,500 per week.”

21 By comparison, Mr Khoury estimates that if suitably experienced Junior Counsel at the private Bar were to be briefed for the committal proceedings, the counsel’s fees would be in the range of $2,750 to $3,300 per day (both amounts inclusive of GST). The solicitor’s costs which would be charged if the committal was handled by Mr Khoury’s firm would be calculated on a time charge basis, with the hourly rate of charge dependent on the qualifications and experience of the person performing the work. The range of such fees is from $169 per hour for work performed by non-solicitors (including work by paralegals, secretaries, typists and other staff) to $385 per hour for a principal solicitor.

Sef Seeks Funding from the Estate for Defence Costs

22 In September 2002 Mr Khoury wrote to the solicitors for Mrs Claridades enquiring whether the parents of Teddy Gonzales would consent to Estate assets being used to finance Sef’s defence. The response was an unequivocal refusal to give that consent.

23 On 26 February 2003 Mr Khoury’s firm wrote to the Executrix’s solicitor notifying an intention to bring an application under the Family Provision Act 1982 on behalf of Sef Gonzales, and seeking a written undertaking from the Executrix that she would not distribute any part of the Estate until that application was heard and decided. The Executrix’s solicitors responded on 28 February 2003:

“We advise that the Executrix will continue to meet current and future expenses incurred in her administration of the Estate from the Estate’s funds.
We are instructed to advise that the Executrix does not intend to make any distribution of the Estate to any party who may be a likely beneficiary until your client’s guilt or innocence is determined.”

24 Rather than an application under the Family Provision Act, it was this present application which was brought, by summons filed on 8 April 2003.

25 The substantive orders sought in the summons as filed are as follows:

“1. A final ORDER that the defendant pay the plaintiff the whole of the net proceeds of the estate of the late Teddy Gonzales deceased, after payment of all debts funeral and testamentary expenses.
2. An ORDER that until 30 June 2003 (or further Court order) the defendant pay out of the assets of the said estate to the plaintiff’s solicitors Messrs Benjamin & Khoury the amount of their Bills of Costs and Disbursements given to the plaintiff from time to time in respect of legal work done by them for and/or on behalf of the plaintiff, to date and continuing.
3. An ORDER that the further hearing of the summons be adjourned to such date as to the court deems fit.”

26 On 8 May 2003 Barrett J gave directions in these proceedings, including a direction that the Executrix give notice of the proceedings to Teddy’s parents. They responded by return post to the letter from the defendant’s solicitor giving that notice, saying:

“Absolutely no one, neither we nor Sef, can have a claim or interest on the Estate prior to a declaration of the Australian court on the guilt or innocence of Sef. We vigorously reiterate our original position that no part of the Estate, directly or indirectly, be used to shoulder any legal expense or cost for Sef’s defence.
We are one with Mrs Amelita Claridades in her pursuit to protect and to keep intact the Estate of our dear son, Teddy. We truly appreciate the effort and dedication you have given thus far to this case. Thank you.”

27 At the commencement of the hearing Mr Rayment QC amended the orders sought at this stage to an order that the defendant pay the plaintiff the costs which would be incurred by the plaintiff in being represented at the committal proceedings, and, if necessary, any no bill application which might be made following the committal proceedings. The Executrix maintains the stance that she is not willing to make any distribution from the Estate until the question of Sef’s guilt or innocence is determined.

Procedural Basis for this Application

28 The plaintiff brings the present application under part 68 Supreme Court Rules. That Part provides:

“ Interpretation
1 In this Part—
“administration proceedings” means proceedings for the administration of an estate or the execution of a trust under the direction of the Court;
“estate” means estate of a deceased person.
Relief without general administration
2(1) Proceedings may be brought for any relief which could be granted in administration proceedings.

(2) Proceedings may be brought for the determination of any question which could be determined in administration proceedings, including any question—
(a) arising in the administration of an estate or in the execution of a trust;
(b) as to the composition of any class of persons having a claim against an estate or a beneficial interest in an estate or in property subject to a trust; or
(c) as to the rights or interests of a person claiming to be—
(i) a creditor of an estate;
(ii) entitled under the will or on the intestacy of a deceased person; or
(iii) beneficially entitled under a trust.
(3) Proceedings may be brought for an order directing an executor, administrator or trustee—
(a) to furnish accounts;
(b) to verify accounts;
(c) to pay funds of the estate or trust into Court; or
(d) to do or abstain from doing any act.
(4) Proceedings may be brought for—
(a) an order approving any sale, purchase, compromise or other transaction by an executor, administrator or trustee; or
(b) directing any act to be done in the administration of an estate or in the execution of a trust which the Court could order to be done if the estate were being administered, or the trust were being executed, under the direction of the Court.
(5) None of subrules (1) to (4) limits the operation of any other of them.
(6) In proceedings brought pursuant to this rule a claim need not be made for the administration of the estate, or the execution of the trust, under the direction of the Court.

29 These proceedings are ones which fall under each of Part 68, rule 2(1), 2(2)(a), 2(2)(c)(ii), 2(3)(d) and 2(4)(b).

The Rival Contentions

30 The plaintiff contends that, on the face of the Will, and given the undisputed facts that his parents and sister have died, he is entitled to his father’s Estate. He says that if the Executrix wished to allege that he was not entitled to it because he had unlawfully killed one or both of his parents, the Executrix should allege and prove that that is what he had done - but the Executrix makes no such allegation. The plaintiff acknowledges that he has been charged with murder of his parents – indeed it is the plaintiff who has proved, in this application, the laying of the charges. However he says that, in a civil court just as in a criminal court, he is entitled to the benefit of a presumption of innocence. While there are some estate debts, of comparatively small amount, which are unpaid, he says the Executrix’s duty is to set aside a fund which is comfortably sufficient to pay those debts, and make distributions to the plaintiff from the balance of the Estate.

31 The plaintiff points to the extremely serious charges which are laid against him, and to his immediate need to have access to funds to be able to meet the costs of a solicitor and counsel from the private profession to conduct his defence at the committal. Given the much less extensive legal assistance which would be available to him if he were compelled to conduct the committal represented by a lawyer funded by the Legal Aid service there is, he submits, a very strong discretionary consideration in favour of allowing his defence to be properly presented. A defence funded by Legal Aid would, he submits, be a very truncated one. While not spelled out in so many words, the clear subtext of the plaintiff’s submissions is that the defence which is available on legal aid is so radically different to the defence which could be provided with private funding that it might produce a different result.

32 The Executrix submits that the question for determination by the Court in these proceedings is not who will eventually be entitled to distribution of the Estate. Rather, she submits, the sole question is whether the plaintiff has a right to be paid on the basis that he is a beneficiary, when there is an undecided question about whether all or part of his benefits under the Will have been forfeited. The Executrix submits that, as at today, she simply does not know who is entitled to the Estate. She says that Part 68 of the Supreme Court Rules does not give the Court any discretion which enables it to order or permit estate assets to be distributed to someone who is not entitled. If the result of the criminal trial is to show that Sef killed his father, and in the meantime Sef’s defence costs have been paid from the Estate, the Executrix will have paid those defence costs to the wrong person. While the Executrix might be spared personal liability for having paid the wrong person, if she were to make those payments under a court order, the Court, charged with making orders which will facilitate the Estate ending up in the hands of those entitled to it rather than in the hands of those not entitled to it, should not make an order requiring distribution of the Estate at the present time, when there is a real risk that that distribution might end up being to a person not entitled.

33 To this, the plaintiff responds that to permit the Executrix to wait and see is in effect to dismiss the present application. Further, for the Executrix to sit on the fence, neither making an allegation that the plaintiff is disentitled to the Estate, nor making an immediate distribution, is a luxury which proper performance of her duty does not allow her to have.

The Presumption of Innocence

34 There are two types of circumstance in which a presumption of innocence can operate. The first is that when an issue arises in civil litigation as to whether a criminal, or seriously wrongful, act has occurred, a presumption of innocence arises: The Brisbane Shipwrights’ Provident Union & Ors v Heggie (1906) 3 CLR 686 at 699; Clark v Flanagan (1934) 52 CLR 416 at 428, 429; Briginshaw v Briginshaw (1938) 60 CLR 336 at 363, 367, 372; Wright v Wright (1948) 77 CLR 191 at 210; Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) 188 CLR 501 at 546-547; Joseph Constantine Steamship Line Limited v Imperial Smelting Corporation Limited [1942] AC 154 at 192; Emanuel v Emanuel [1946] P 115. This means that the onus of proving that a criminal or seriously wrongful act has occurred lies on the party who asserts that such an act has occurred.

35 The second type of circumstance when a presumption of innocence can operate is when a question arises in civil litigation as to whether a criminal act or seriously wrongful act has occurred, and that question is not itself an issue in the proceedings, but rather a matter a resolution of which will throw light on something which is in issue in the proceedings. In that type of situation, the presumption of innocence operates so as to cast an onus of adducing evidence on the person who asserts the criminal or seriously wrongful act has occurred. It is one consequence of the requirement, in section 140(2)(c) Evidence Act 1995, that in deciding whether a court is satisfied that a case has been proved on the balance of probabilities, the court is to take into account the gravity of the matters alleged.

36 In the application I am now hearing, there is no issue to be decided about whether Sef has committed any criminal offence. As Mr Rayment QC rightly points out, the Executrix has chosen not to raise any such issue. Rather, the issue in the present case is whether the circumstances that charges have been brought against Sef, and that the Executrix does not presently know whether there are facts which justify those charges or not, provide a justification for her failure to make an immediate distribution of Estate assets to Sef, and for her failure to agree to provide ongoing funding of his defence from the Estate assets.

37 Neither is this a case of a kind where the second type of circumstance in which the presumption of innocence can arise. This is not a case where the question of whether Sef has unlawfully killed his parents is one which either party has raised for decision as a fact which, if proved, would assist the court in reaching a conclusion about the issue in the case.

38 Given the issue in the present case, the presumption of innocence does not have a direct role to play in resolving that issue. The issue in the present case needs to be decided bearing in mind that, when and if any issue were to arise, whether in criminal proceedings or in civil proceedings, of whether Sef had unlawfully killed his parents, the court would apply the presumption of innocence in the course of deciding that issue. But, in this case, the role of the presumption of innocence is no more than that. It does not lead to an answer to the issue which is now raised for decision.

The Result

39 I have reached the conclusion that the plaintiff is not entitled to the orders he seeks. That conclusion has been reached after considering the problem posed by the case in the light of several different strands of legal principle which are relevant to the administration of deceased estates. Each of those strands of legal principle leads to the same conclusion.

Nature of any Right of Sef to a Distribution

40 Administration of an estate is a process involving the legal personal representative carrying out the activities, and ascertaining the information, needed to perform the various duties of the legal personal representative. The rights which any beneficiary has concerning the estate can change, as that process unfolds. It is not at all unusual for someone who is a beneficiary in an estate to have no immediate right to be paid money at one particular point of time, but to have a right to be paid money at a later point of time, when the administration of the estate has moved to a different stage. Even if it turns out to be the case, once the facts have been investigated, that Sef did not unlawfully kill his parents, that does not mean necessarily that he has a right, now, to payment of any amount from the Estate, while the question of whether he unlawfully killed his parents has not been the subject of any court finding. To decide whether he has a present right to be paid requires an examination of in what circumstances a legal personal representative comes under an obligation to make a distribution.

41 If Sef’s gift under the Will has not become subject to forfeiture, then he is a residuary beneficiary of his father’s Estate. It is only when an estate has become fully administered that a residuary beneficiary has a present right of property in that estate: Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694; Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306. Prior to the estate being administered, a residuary beneficiary has a right to have the estate duly administered, even though he does not have a right of property in estate assets. In the present case, to ascertain whether Sef has a right to require a payment arising from his having a right of property, or a right to require a payment arising from him having a right to compel the due administration of the estate, requires that consideration be given to whether the estate is administered.

Whether Administration is Completed – Duties of Administration

42 The duties of administration which an Executrix is required to perform include ascertaining what are the assets of the deceased, getting in those assets, ascertaining what are the liabilities of the estate, discharging those liabilities, apportioning the burden of payment of liabilities among the beneficiaries, keeping accounts and proper records of all dealings with the assets and liabilities of the estate, delivering accounts to those entitled to them, and distributing the net assets of the estate to the people entitled to receive them.

43 When there is an obligation on the executrix, as part of the process of administration, to distribute amongst the persons entitled, it follows that the carrying out of such enquiries, and the bringing such proceedings, as are necessary to ascertain the identity of the people to whom the executor is obliged to transfer the residue is part of the task of administration. In In Re Stone; Read v Dubua (1936) 36 SR(NSW) 508 Jordan CJ said at 524-525:

“The question of what is included in testamentary expenses was examined by Harvey J in Allen v Attorney-General (15 SR 41, at 43-4). They include the expenses of getting in the testator’s assets, and of ascertaining who the persons are to whom it is the executor’s duty to hand over the various portions of the testator’s property. Any costs incurred for the purpose of identifying these persons, whether it be occasioned by obscurities in the will or by difficulties arising dehors the will, are testamentary expenses: Re Baumgarten (82 LT 711); In re Hall-Da r e ([1916] 1 Ch 272); and (apart from anything in the will or by statutory rule provided) are payable before the residue is ascertained: Re Giles (55 LT 51). It might have been thought that when the executors’ duty as to a particular thing or share was to hand it over to trustees for beneficiaries or to hold it themselves as trustees for beneficiaries, the disponee was sufficiently identified as the trustee, and that difficulties in identifying the cestuis que trust would not have constituted testamentary expenses. However, the contrary seems to have become well settled: In re Reeve’s Trusts (4 Ch D 841 at 844); In re Groom ([1897] 2 Ch 407 at 411); In re Vincent ([1909] 1 Ch 810). Perhaps it was considered that the trustee was entitled to know who his cestuis que trust were, and that it was for the executor to assist him in identifying the objects of the trusts set up by the will as a term of his being expected to assume them. Further, “testamentary expenses” are not restricted to such expenses as an executor or administrator incurs in relation to the dispositions of the will. They include expenses incurred in connection with property as to which the testator dies intestate: In re Clemow ([1900] 2 Ch 182).”

See also Murdocca v Murdocca (No.2) [2002] NSWSC 505 at [58]-[63].

44 In the present case, when the Executrix has not ascertained whether Sef’s interest in the Estate has been forfeited, she has not carried out all the duties of administration. Thus, even if the truth of the matter (at present unascertained) is that Sef did not kill his parents and sister, the Estate is at present not administered. It follows that Sef does not have a present property right which he can require to be distributed to him.

45 As well, there are some additional reasons why the Court cannot conclude that administration of this Estate is complete. When probate was granted to the Executrix it was granted subject to a requirement, made under section 85(1AA) of the Wills, Probate and Administration Act 1898 that accounts showing the administration of the Estate be verified, filed and passed within 12 months from the date of grant. I would infer that those accounts have not been verified filed and passed. The ascertainment of the Estate assets in the Philippines is not complete. The entitlement to the Philippine assets in the event that there is an intestacy does not seem to have been fully investigated. There are some Philippine taxes to pay. Whether actual payment of those Philippine taxes is part of the task of administration of the Estate will depend on whether the taxes are ones analogous to the former New South Wales death duty, which was a testamentary expense (Wyndham v Mackenzie (1918) 25 CLR 172) or ones analogous to the former Federal estate duty, which was not a testamentary expense (Shelley v NSW Institution for the Deaf, Dumb and the Blind [1919] AC 650). Finding out whether the Philippine taxes are a testamentary expense is a task of administration. There are also some other Estate debts unpaid.

Basis for a Right to Payment from an Estate not Fully Administered - Appropriation

46 Sometimes, even if an estate is not fully administered, a beneficiary can have a present right of property in certain estate assets if the executor or executrix appropriates some of the estate assets in full or partial satisfaction of the entitlement of a beneficiary. It is by this means that payment of pecuniary legacies, distribution of specific legacies or devises, or interim distributions of either pecuniary legacies or interests in residue are sometimes made in estates, even though the duties of administration are not yet complete. In the present case, however, there has been no such appropriation – the Executrix has deliberately refrained from making any such appropriation.

Basis for a Right from an Estate not Fully Administered – Obligation to make Interim Distribution

47 Sometimes it can be the duty of a legal personal representative to make an appropriation of estate assets so that he or she can pay a pecuniary legacy or distribute a specific legacy or devise, or make an interim distribution of pecuniary legacies or interests in residue, even thought the duties of administration are not complete. If the legal personal representative is in a situation of knowing that there are some distributions of the estate which could be made in accordance with the will or the rules of intestacy which govern the distributions of that estate, that there was no realistic prospect that that distribution could be cut down or affected by those aspects of administration of the estate which remained unperformed, and that the remaining tasks of administration were not likely to be completed soon, then it may be the duty of the legal personal representatives to make an interim distribution to that extent.

48 One of the duties of administration is dealing with any claim made under the Family Provision Act 1982 or similar legislation – dealing with such claims is one example of the task of administration of ascertaining the identity of the persons to whom the legal personal representative must transfer the net estate assets. Even so, in In Re Ralphs; Ralphs v District Bank Ltd [1968] 1 WLR 1522 Cross J said that, when a claim under the Inheritance (Family Provision) Act 1938 was brought against a deceased estate it was wrong to say that it was the duty of the legal personal representative to make no distribution of any sort to beneficiaries in the period between death and the hearing of the summons. The course legal personal representatives should take in such a situation is (at 1525):

“They should form their own view, with the assistance, of course, of their legal advisors, as to the payments which can properly be made, and if they are not prepared to make such payments on their own responsibility, they should ask the parties who might conceivably be affected – whether applicant or residuary legatee – for their consent. If such consent is not forthcoming the executors can apply to the court for leave to make the payment in question, and the court, if it thinks that any withholding of consent was unreasonable could throw the costs of the application on the party to blame.”

49 Another example of a circumstance where it might be the duty of a legal personal representative to make an interim distribution is given in Blackman v Permanent Trustee Co Ltd [2003] NSWSC 305, where Young CJ in Eq said, at [14], “… where a next of kin inquiry was ordered the court could order partial distribution to any lines of kin which were not disputed.”

50 A further example can arise if there were expenses of administration which would need to be paid in the future from the estate. If those expenses were of uncertain amount (as could be the case if the legal personal representative were engaged in litigation on behalf of the estate) the legal personal representative would be entitled to adopt a very cautious (though not unrealistically cautious) view about what the possible extent of those expenses might be, in deciding whether, or to what extent, a gift might be cut down. If, however, after taking such a cautious view of what the expenses of the estate might be, it was clear that the assets of the estate were more than enough to meet them, and if there were no other problems of administration outstanding, it could be the obligation of a legal personal representative to make an interim distribution of those assets in the estate which are not at risk of being used up in the future administration of the estate, at least in circumstances when it was clear who the correct recipient of those assets was.

51 In the present case, one of the acts of administration which are still unperformed in the Estate – namely, ascertaining whether the gift to Sef under the Will has been forfeited – is such that the gift to him might be completely ineffective. Thus, the present situation is one where the nature of the matters of administration which are outstanding is such that the principles I have been considering concerning interim distributions do not lead to the conclusion that the Executrix has a present obligation to make a distribution to Sef.

Consequences of the Procedure Sef Invokes to Seek Payment

52 Section 83 Wills Probate and Administration Act 1898 sets out a procedure whereby, if land not under the provisions of the Real Property Act 1900 was devised by will, the executor or administrator with the will annexed could sign an acknowledgment that the devisee is entitled to the real estate. Such an acknowledgement, when registered, transfers the land as effectively as a conveyance. Section 84 Wills Probate and Administration Act 1898 says:

“If the executor or administrator, after requesting in writing, neglects or refuses to:
(a) sign such acknowledgment, or
(b) execute a conveyance of land devised to the devisee, or
(c) pay or hand over to the person entitled any legacy or residuary bequest,
the Court may, on the application of such devisee or person, make such order in the matter as it may think fit.”

53 In In the Will of Charles A York (1894) 15 NSWR B&P 24, at 25 Manning J said that the predecessor of section 84,

“… was inserted in the Act to enable legatees and others to whom information was denied or payment refused to obtain that information, and in simple cases to obtain payment by means of a summary application by the Court, instead of their being driven in every case to submit calmly to or to enter on expensive litigation in the shape of an administration suit. If nothing else is gained, the applicant obtains from the executors their reason for their conduct upon their oath, but it by no means follows that the court will make any order except after full administration of the estate.”

54 In In the Will of Hannah Cowell (Deceased) (1894) 16 NSWR B&P 51 at 52-53 Manning J said of the predecessor of this section:

“The section was never intended to apply to cases where there is any doubt as to the matter, but is specially designed to meet cases where executors have deliberately withheld information and put the person seeking it in the position of either remaining where he was or bringing an administration suit. Under the section he can now compel an answer on oath for not paying to be given, and it may sometimes turn out that the applicant gets the information at his own expense.”

55 The scope of the section was explained by Myers AJ in Re Anderson (1953) 53 SR(NSW) 520, at 522:

“Before section 84 was passed, the only method of recovering a legacy was by an administration suit. In such a proceeding all interested persons are parties to the suit, and the court is able to exercise powers which are not available in an application under section 84. It can, for instance, determine questions of construction, take accounts, direct inquiries, and make appropriations to free residue. Such powers are not available in an application under the section, for a variety of reasons. Questions of construction cannot be determined in a summons under section 84 because all the persons interested are not parties to the application, the only parties being the legatee as applicant and the executors as respondents.
The absence of all interested persons may also prevent the exercise of other powers or the powers such as taking accounts may be adjuncts of the equitable and not of the probate jurisdiction. Section 84, therefore, cannot be used as a substitute for an administration suit. It only provides a speedy and simple method of recovering a legacy where it is not necessary for the court to exercise any of the powers it would possess in an administration suit, and in a case where no persons are interested in the relief sought other than the beneficiary and executors. The existence of a genuine difficulty in the construction of a trust instrument or a genuine dispute as to the accounts would, therefore be fatal to an application under section 84; that is, if the right to receive the legacy depended to any extent on a question of construction or upon the ascertainment of the executor’s balances. Accordingly, it seems to me that an application under section 84 cannot be used in any sense as a substitute for an administration suit, and that the court has no power under that section to make an order unless the evidence shows that the applicant is clearly entitled to the legacy sought and that there are liquid assets available for payment of it.”

56 The plaintiff in the present case brings his application, not under section 84, but under Part 68 of the Supreme Court Rules – that is, he claims to seek relief of a kind appropriate to be given in an administration suit. However, in my view, what the plaintiff is doing is using the procedure under Part 68 to seek a summary determination of his entitlement to a payment from the Estate, in exactly the same way as section 84 is able to be used to produce a summary decision that a legal personal representative should make one of the dispositions provided for by the Will. However, the existence of a genuine doubt as to who is entitled to the Estate has the effect that, in an administration suit, just as in an application under section 84, summary relief cannot be given.

57 In a suit for the administration of a deceased estates, if there is a doubt about the identity of beneficiaries the Court will decide any legal questions, such as questions concerning interpretation of a will, which need to be decided to ascertain the beneficiaries, or will direct the holding of inquiries into factual matters which need to be ascertained before the identity of the beneficiaries is known. For example, the court can direct the holding of an inquiry to ascertain who were the next of kin of a person who has died intestate who were living at the time of his or her death, whether any of them are since dead, and if so who are their respective legal personal representatives (Seton’s Judgments and Orders, 7th edition, page 1410-1411). For the purpose of ascertaining the manner in which a deceased’s estate should be distributed, taking into account the doctrine of ademption of legacies by portions, the court can direct an inquiry as to what advances or payments have been made to the testator’s children on account of their respective shares and interests in his estate (Seton, op cit, page 1417-1418). In an administration suit, if it were established that there was real doubt about whether a person who is named as sole residuary beneficiary in a will had unlawfully killed the testator, the Court could direct an inquiry into that topic. Because that inquiry would be part of the administration of the estate, and the destination of the whole residuary estate depended on the outcome of the inquiry, the residuary estate would not be required to be paid out until the inquiry had reached a conclusion.

58 In summary, in an administration suit, the effect of establishing that there is a doubt as to who is entitled to the estate is, not to order any sort of summary payment out, but rather to order an inquiry which will resolve that doubt. The relief which Sef seeks in these proceedings is not such an inquiry, but rather an order which presupposes the result of such an inquiry.

Analogy of How Costs are Paid in an Inquiry

59 Even though neither the Executrix, nor Sef, seek any such inquiry, the principles by reference to which, and time at which orders for the payment of costs would be made in any such inquiry cast some light on the present case. In any such inquiry, the costs incurred by the executrix would be, in the ordinary course, payable from the estate, because they were an expense of administration. Whether the costs of any other parties to the inquiry would be paid from the estate would be a matter for the Court’s discretion. In exercising that discretion the Court would take into account whether the inquiry was in substance adversary litigation: In Re Buckton; Buckton v Buckton [1907] 2 Ch 406; In Re Halston; Ewen v Halson [1912] 1 Ch 435; In Re Cunningham; Sproule v Quested (1914) 31 WN (NSW) 44; O’Brien v Ritchie (1931) 48 WN (NSW) 85; Murdocca v Murdocca (No.2) [2002] NSWSC 505 at [71]-[77]. The point, for present purposes, is that it could not be said, in advance, that Sef’s costs in any such inquiry would be paid from the Estate.

60 That in such an inquiry, it would not be inevitable that Sef’s costs be paid from the Estate, and that hence, in such an inquiry, Sef would not be able to obtain an order at the start of the inquiry requiring the payment of his costs to be made from the Estate periodically as they were incurred, is consistent with the conclusion that there is at present no obligation on the Executrix to pay from the Estate Sef’s legal costs concerning the criminal charges, periodically as they are incurred.

The Executrix’s Duty to Ascertain the Identity of the Beneficiaries

61 It follows from what I have said so far that it is part of the duty of the Executrix to take appropriate steps to ascertain whether Sef’s interest in the Estate has been forfeited or not. Her present intention is to await the outcome of the committal proceedings and, if there is a trial following the committal proceedings, of the trial, before taking any other step to ascertain whether Sef’s interest in the Estate has been forfeited or not. It is neither necessary nor possible to decide in these proceedings whether the full carrying through of that intention would involve her in a breach of her duties. It may be that events will arise which require her to reconsider that intention. All that needs be decided, for the purpose of the present case, is whether the performance of her duty to ascertain the beneficiaries of the Estate requires her, at this time, to fund Sef’s defence in the criminal proceedings. For this purpose, closer examination must be made of just how the outcome of committal proceedings, or a criminal trial, will affect any question of whether Sef’s interest in the Estate has been forfeited.

Effect Which Outcome of the Criminal Proceedings will have on Distribution of the Estate

62 If there is a dispute about whether the forfeiture rule has operated, it is necessary for the unlawful killing to be proved to the satisfaction of a civil court engaged in deciding whether the benefit has, or has not, been forfeited. If a court trying such an issue is convinced by evidence brought before it that there are circumstances which result in forfeiture, it can so decide, even if there has never been a criminal trial – such an event arises if the killer dies before there is any such trial, as happens when there is a murder-suicide: InRe Plaister, Perpetual Trustee Company v Crawshaw (1934) 34 SR(NSW) 547; Re Dellow’s Will Trusts [1964] 1 WLR 451. Further, the civil court trying such an issue can hold that there are circumstances resulting in forfeiture, even if the person who receives the benefit has been tried and acquitted in criminal proceedings: Helton v Allen (1940) 63 CLR 691 at 710.

63 The admissibility and significance, in such civil proceedings, of a conviction for an offence involving unlawful killing, underwent some change in the course of the 20th century. In In the Estate of Crippin [1911] P 108, [1911] All ER Rep 207 the executrix of a murderer was held not entitled to take out letters of administration of the intestate estate of the wife of the murderer. Evidence of the conviction of the murderer for the murder of his wife was admitted not merely as proof of the conviction, but also as presumptive proof of the commission of the crime. In In the Estate of Julian Bernard Hall deceased; Hall v Knight and Baxter [1914] P 1 a probate suit was on foot, the issues in which concerned which of several testamentary scripts was the last will. The woman who had killed the testator and had been convicted of his manslaughter sought to appear and uphold those wills under which she received benefits. She was dismissed from the suit at an interlocutory stage, on the basis of her conviction, and that she had appealed against the conviction to the Court of Criminal Appeal and the conviction was upheld “and therefore that is a fact which is conclusively proved” (at 4).

64 The English Court of Appeal in Hollington v F Hewthorn & Co Ltd [1943] KB 587 disapproved Crippin (at 600) and held (at 601) that a conviction did not even provide prima facie evidence of the facts on which it was based.

65 The effect of Hollington v F Hewthorn & Co Ltd has been overcome in New South Wales, in some but not all civil litigation, by section 92 Evidence Act 1995. The Evidence Act 1995 contains the following provisions:

“91(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.
92(2) In a civil proceeding, section 91(1) does not prevent the admission or use of evidence that a party, or a person through or under whom a party claims, has been convicted of an offence, not being a conviction:
(a) in respect of which a review or appeal (however described) has been instituted but not finally determined, or
(b) that has been quashed or set aside, or
(c) in respect of which a pardon has been given.
(3) The hearsay rule and the opinion rule do not apply to evidence of a kind referred to in this section.”

66 It was the hearsay rule, and possibly the opinion rule, which underlay Hollington v F Hewthorn & Co Ltd. That the accused was guilty of whatever crime he had been held to have committed was a representation made otherwise than in the course of giving evidence in the civil proceedings in which evidence of the conviction was sought to be adduced, and which the appropriate participants in the criminal trial (judge and/or jury) intended to assert by that representation, and hence, were it not for section 92(2)(c), the hearsay rule, as defined in section 59 Evidence Act 1995 and as expanded by the definition of “previous representation” in the Dictionary to that Act, would apply to it. Further, that the person was guilty of the crime of which he had been convicted is, at least arguably, an opinion of the relevant participants in the criminal trial, and so, were it not for section 92(2)(c) might possibly fall within the opinion rule as defined by section 76 Evidence Act 1995. Section 92(3) thus removes the basis for continuing to apply Hollington v F Hewthorn & Co Ltd in this State in civil proceedings where the person convicted is a party, or a party through or under whom a party claims, and where none of the exceptions in section 92(2)(a)-(c) applies. The effect of section 92(2) is to impose an evidentiary onus on anyone who disputed the correctness of the conviction to produce evidence that it is incorrect, but section 92(2) does not alter the legal onus of proof of the facts underlying the conviction – see Australian Law Reform Commission Interim Report on Evidence (ALRC No.26, 1985), volume 1 paragraph 773-778.

67 Thus, if the outcome of Sef’s trial were to be a conviction, that conviction would be admissible in any civil proceedings to which he was a party in which there was an issue about whether he had forfeited the benefit under his father’s Estate. However anyone who was contending, in such proceedings, that a forfeiture had occurred would still bear the legal onus of so proving, and it would be open to Sef to call evidence, if he wished, with a view to showing that any such conviction was erroneous.

68 It follows that, whether the outcome of Sef’s trial is a conviction or an acquittal, that outcome will not be determinative of any civil proceedings to which he is a party in which there is an issue about whether Sef’s benefit under his father’s Will has been forfeited.

Return to Executrix’s Duty to Ascertain Beneficiaries

69 Sef contends that the Executrix is in breach of duty when she neither makes an allegation in litigation that he is disentitled to the estate, nor makes an immediate distribution to enable him to fund his defence costs. I do not accept that this is so. I consider first whether she is now in breach of an obligation to herself bring proceedings to test whether Sef is disentitled. The size and complexity of the police brief which has been delivered in the committal proceedings, suggests that establishing whether or not Sef killed his parents, will be no easy litigious task. As the evidence in this case shows, it would be very expensive. The committal proceedings will occur soon – while it is possible for both criminal and civil courts to investigate the same question of whether conduct which amounts to a crime has occurred, the court has an inherent jurisdiction to order a stay of the civil proceedings where the conduct of those proceedings may interfere with the fair trial of the criminal proceedings: McMahon v Gould (1982) 7 ACLR 202; Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26. There must be a realistic prospect that, even if the Executrix were to start such litigation, either Sef or the Crown would request her to desist from it while his criminal proceedings were still pending. More to the point, neither of the potential candidates for being beneficiary of the estate, namely Sef and Teddy's parents, have requested her to take any such proceedings. There must be at least some prospect that, once the outcome of the criminal proceedings is known (whether it be an acquittal or a conviction) that will be accepted by the potential candidates for being beneficiary of the estate as deciding whether a forfeiture has occurred, or not. The running of the criminal trial has a realistic prospect of bringing to light evidence not presently available to the executrix -- there is no reason to believe that she has access to all material in the police brief, and some of that material (the telephone intercept material) is evidence she could not acquire through her own resources. The practical commonsense of adjourning civil proceedings until the outcome of criminal proceedings concerning the same issue is illustrated by In Re Raphael [1973] 1 WLR 998, where Goulding J. adjourned, of his own motion, probate proceedings the outcome of which depended upon whether a purported will was a forgery until criminal proceedings concerning that alleged forgery were concluded. As well, the Executrix was appointed only about five and one half months ago. In all these circumstances, the evidence does not persuade me that, in having failed to ask for an inquiry, or start other proceedings to determine whether Sef has unlawfully killed his parents, the Executrix is, today, in breach of her duty.

70 Neither is there any obligation on the Executrix to fund Sef’s defence in the criminal proceedings as a way of performing, by proxy, her own duty to ascertain the beneficiaries. If she had a duty to cause there to be litigation to ascertain who the beneficiaries of the estate were, that duty would not be performed by funding Sef’s defence in a criminal trial. If litigation were called for, it would be litigation in which she was the moving party, with the influence over the course of the procedure, and the amount of money expended, which goes with being the moving party. Further, if litigation were called for, it would be litigation conducted in a civil court, which would be determinative of whether Sef was entitled to the estate, not litigation in a criminal court which would not be directly determinative of his entitlement. The other strands of legal principle which I have considered in the course of this judgment do not lead to the conclusion that she has a duty to fund Sef's defence in any way other than as performance of her own obligation to ascertain the beneficiaries.

The Executrix’s Potential Liability for Wrongful Distribution

71 Another strand of principle relevant to the case concerns the potential liability of the Executrix to the next of kin if she were to make a distribution to enable Sef to pay his defence costs, and it were ultimately to be established that Sef’s interests under the Will had been forfeited.

72 Paragraph 10 of Form 97 of the Supreme Court Rules – which is the form of affidavit which any executor is required to make – required the executrix to swear that if granted probate she would administer the estate according to law. The obligation on the Executrix to distribute the Estate to the right people is, thus, a “duty which is imposed upon the executor not simply by some trust instrument but from the very nature of his office …” (per Kearney J, Burns Philp Trustee Co Ltd v Viney [1982] 2 NSWLR 216 at 226.)

73 The duty to distribute the assets to the people entitled to them was, under the general law, a strict one. Walker on Executors, 5th edition (1920) page 310 says:

“Where an executor or administrator, without any judicial decision, authority or investigation, pays over the estate to those whom he supposed to be, but in fact or not, entitled thereto, he must replace it, and with interest at 4% ( Turner v Maule 3 DeG & Sm 497; Re Hulkes 33 CD 552. Saltmarsh v Barrett (No2) 31 Beav. 349 is a decision to the contrary, but was not followed in Re Hulkes …), unless it has been so paid with the full knowledge of the person really entitled to the interest, and in common mistake, in which case he is not liable for interest ( Re Hulkes; nor is any person liable to refund any money paid to him by an executor under a mistake of law with the assent of the true owner ( Rogers v Ingham 3 CD 351). A trustee may, however, deduct a sum overpaid to a beneficiary, out of his subsequent income or interest under the will ( Godefroi on Trusts , 4th ed 418).) If an executor or administrator is asked to pay trust-money under a power of attorney, he must see to the genuineness of the authority; for, if forged, it is a nullity, and his rights remain as before ( Ashby v Blackwell 2 Eden 302; and see Sloman v Bank of England 14 Sim 475). His liability is the same if he acts in reliance of a forged certificate of marriage ( Eaves v Hickson, 30 Beav 136).

74 There is some statutory alleviation of the strictness of an executor’s duty to pay the right people arising from section 92 Wills Probate and Administration Act 1898, section 60 Trustee Act 1925, and section 35 Family Provision Act, each of which provides protection to a personal representative who distributes property having regard to claims of which he or she then has notice following upon the publication of notices of intention to distribute. However claims of which the executor or executrix “has notice” are not restricted to claims received in response to any public notices seeking claims. In the present case, the executrix is clearly on notice of the possibility that Sef might be disqualified. If she were to make a distribution to Sef, and it were to turn out that his interest was forfeited, she could be personally liable for having made that distribution.

75 The Court can, in some circumstances, where there is uncertainty about a factual matter relevant to the distribution of a deceased estate, make an order that the executors are at liberty to distribute on some particular factual basis – eg that a missing beneficiary under the testator’s will was unmarried and predeceased the testator without issue (Re Benjamin [1902] 1 Ch 723). Parry & Clark, The Law of Succession, 10th edition (1996) page 471-2 say:

“The particular footing set out in the order is, of course, based on probable inferences from the proved facts, but the order does not constitute a positive declaration of rights ( Hansell v Spink [1943] Ch 396, 399; Re Green’s Will Trusts [1985] 3 All ER 455 at 462 (“the true view is that a Re Benjamin order does not vary or destroy beneficial interests. It merely enables trust property to be distributed in accordance with the practical probabilities.”)) and, according, it does not prevent any missing beneficiary (if he subsequently appears) from pursuing his remedy against a recipient of the deceased’s assets. Sometimes a Benjamin Order is made after an inquiry by the court has proved inconclusive, but such an order may be made without any prior inquiry by the court if suitable advertisements for a missing beneficiary produce no claims, or even without any advertisements if the inference from the proved facts is irresistible (as in Re Green’s Will Trusts , supra (by her will T, who died in 1976, gave her estate to her son B; B had been a gunner in a bomber which went missing in a raid on Berlin in 1943; nothing ever heard of the bomber or its crew; irresistible inference crew perished, though T believed when she died that B was still alive).”

(Some footnotes omitted) See also Hardingham Neave & Ford, Wills and Intestacy in Australia and New Zealand , 2nd edition, paragraph [3604].

76 The basis for making such orders was explained by Mahoney J in Wilcox v Poole [1974] 2 NSWLR 693. At 697, his Honour quoted from Daniell’s Chancery Practice, 8th edition, pages 1539-40,

“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 when the right of the parties for 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.”

Mahoney J at 697 described the principle as,

“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”.

At 699, his Honour said:

“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.”

77 In the present case, when the question of whether there has been a contravention of the forfeiture rule has not been investigated, it would not be appropriate to grant the Executrix leave to distribute any part of the Estate on the basis that Sef had not killed his parents. The principle which underlies the granting of such leave, namely that as a matter of practical certainty it is clear that a beneficiary will ultimately enjoy certain property, does not apply in the present case; the Court cannot be satisfied on the present evidence that as a matter of practical certainty Sef will ultimately become entitled to the residue.

78 In deciding whether to grant leave to distribute on the basis that Sef did not kill his parents, the Court also takes into account that it is as a matter of public policy, not of merely private obligation, that the forfeiture rule exists. There is an additional reason for the Court to refuse to give leave to distribute on a particular factual basis in circumstances where there is a risk that such a distribution might contravene a rule of public policy.

1. Summons dismissed, save insofar as it seeks orders as to costs.

2. Direct that if either party wishes to make an application concerning costs he or she arrange with my Associate, within 14 days from the date of delivery of these reasons for judgment, a mutually convenient date for the making of such application.

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Last Modified: 02/04/2004