Graham Thomas McGinley, Glen Michael McGinley and Terence Herbert House (Administrators of the Estate of Shane Ronald McGinley) v Donald Kevin McGinley (also known as Kevin McGinley)
[2024] WASC 342
•18 SEPTEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: GRAHAM THOMAS MCGINLEY, GLEN MICHAEL MCGINLEY AND TERENCE HERBERT HOUSE (ADMINISTRATORS OF THE ESTATE OF SHANE RONALD MCGINLEY) -v- DONALD KEVIN MCGINLEY (also known as KEVIN MCGINLEY) & ORS [2024] WASC 342
CORAM: MASTER RUSSELL
HEARD: 19 JUNE 2024 & 18 SEPTEMBER 2024
DELIVERED : 18 SEPTEMBER 2024
FILE NO/S: CIV 2207 of 2023
BETWEEN: GRAHAM THOMAS MCGINLEY, GLEN MICHAEL MCGINLEY AND TERENCE HERBERT HOUSE (ADMINISTRATORS OF THE ESTATE OF SHANE RONALD MCGINLEY)
Plaintiffs
AND
DONALD KEVIN MCGINLEY (also known as KEVIN MCGINLEY)
First Defendant
AYLINE MCGINLEY
Second Defendant
WAYNE KEITH MCGINLEY
Third Defendant
MATTHEW JOHN MCGINLEY (also known as MIKAYLA-JAY MCGINLEY)
Fourth Defendant
Catchwords:
Administration of estates - Missing beneficiaries - Application for directions to distribute whole estate equally between remaining beneficiaries - Benjamin order - Advertising - Trustees Act 1962 (WA) s 66 - Turns on own facts
Administration of estates - Intestacy - Disclaimer of entitlement to distribution by one beneficiary - Orders as to administration and distribution of estate - Administration Act 1908 (WA) s 45 -Turns on own facts
Legislation:
Administration Act 1908 (WA) s 45
Trustees Act 1962 (WA) s 62(2), s 62(5)
Result:
Application granted
Orders and directions made pursuant to Administration Act 1908 (WA) s 45 and Trustees Act 1962 (WA) ss 62(2) and 62(5)
Category: B
Representation:
Counsel:
| Plaintiffs | : | Dr P R MacMillan |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | No appearance |
Solicitors:
| Plaintiffs | : | Peel Legal |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | No appearance |
Cases referred to in decision(s):
Application by Little (estate of Bruce Frederick Little) [2023] NSWSC 402
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
Re Benjamin; Neville v Benjamin [1902] 1 Ch 723
Re Birchall; Birchall v Ashton (1889) 40 Ch D 436
Shaw v McKean as executor of the estate of the late Ellen Mary May McKean [2023] QSC 261
Victoria Agnes Nolan as Administratix of the Estate Of Barbara Nolan, deceased v Nolan [2011] WASC 224
MASTER RUSSELL:
(This judgment was delivered orally and has been edited from the transcript to correct matters of grammar, infelicity of expression and to add headings, full citations, references and footnotes.)
Introduction
This proceeding concerns the estate of the late Shane Ronald McGinley, who died on 7 July 2021. He did not leave a will and died intestate.
The plaintiffs, Graham Thomas McGinley, Glen Michael McGinley and Terence Herbert House are the deceased's brothers. They commenced this proceeding in their capacity as administrators (Administrators) of the deceased's estate (Estate) by originating summons filed on 26 October 2023.
As most of the parties and beneficiaries share the same surname, with no disrespect to any of them, when referring to them individually, I will refer to them by their first or known name.
The deceased's parents, Jean Veronica McGinley (Nee Dillon) and Dominic Joseph McGinley, his sister, Sharron Ann Kirk (Sharron), and his half‑brother, Neil (or Neal) John McGinley (Neil) predeceased him.
The deceased never married and had no de facto spouse or children at the time of his death. He is survived by six known siblings.
The first defendant, Donald Kevin McGinley (also known as Kevin McGinley) (Kevin) and the second defendant, Ayline McGinley (Ayline), are half siblings of the deceased, on his father's side. The Administrators have been unable to locate them or believe they may be deceased.
As to the siblings who predeceased the deceased, Sharron was survived by four children, referred to later in these reasons. Neil was survived by two children, Wayne Keith McGinley (Wayne) and Matthew John McGinley (also known as Mikayla-Jay McGinley) (Mikayla-Jay), who are the third and fourth defendants respectively.
The Administrators have been unable to locate Wayne. The Administrators' solicitor wrote to Mikayla-Jay on 24 March 2022 stating that they may be a beneficiary of the Estate and requesting a copy of their birth certificate to verify. A follow up letter was sent on 7 April 2022 as no response was received.
On about 13 April 2022, the Administrators' solicitor received a LinkedIn message from Mikayla-Jay, expressing condolences and stating that no interest to benefit would be put forward.
The Administrators seek orders pursuant to s 45 of the Administration Act 1903 (WA) and s 66 of the Trustees Act 1962 (WA) in relation to the distribution of the Estate. They seek:
(a)Pursuant to s 45 of the Administration Act, declarations that:
(i)Mikayla‑Jay has disclaimed their interest in the Estate; and
(ii)the Administrators are at liberty to distribute the Estate as if Mikayla-Jay did not exist or had died before the deceased;
(b)a direction pursuant to s 66(2) of the Trustees Act for the publication of advertisements calling upon the first, second and third defendants, and any other person claiming an interest in the Estate, to send their claim to the Administrators within the time to be specified in the advertisement; and
(c)an order pursuant to s 66(5) of the Trustees Act that, upon the publication of the advertisements and expiration of the time fixed in them for notice of any claim, the plaintiffs be at liberty to distribute the Estate in equal shares to the deceased's known full and half siblings and to the known children of any full or half sibling who predeceased the deceased.[1]
[1] As set out in the minute of proposed orders filed on 17 September 2024.
The Administrators have been unable to locate Kevin, Ayline and Wayne. Mikayla-Jay was served with the application on 1 November 2023 but has not filed an appearance or sought to be heard. Whilst the other beneficiaries have not been joined as parties to these proceedings, they have been given notice of today's hearing.
The application has been dealt with in two parts. I first heard the application on 19 June 2024. At the conclusion of that hearing, I made a direction pursuant to s 66(2) of the Trustees Act that the Administrators publish advertisements at least twice in each of the Government Gazette (WA) and the West Australian Newspaper, referring to and identifying the deceased and calling upon:
… Donald Kevin McGinley (also known as Kevin McGinley), Ayline (or Ayleen) McGinley and Wayne Keith McGinley or any person claiming through them if they are deceased, or any other person claiming to have an interest in the Estate of Shane Ronald McGinley, [to] give notice in writing to the administrators of the Estate via their solicitors Peel Legal of [postal address] or by email to [email address] by [date two months from date of publication of advertisement]. If such notice is not received by that date, the Estate of Shane Ronald McGinley will be distributed and the claim of Donald Kevin McGinley (also known as Kevin McGinley), Ayline (or Ayleen) McGinley and Wayne Keith McGinley and any person entitled to claim through them will be disregarded.
The affidavits sworn by Jamie William Sloan on 26 July 2024 and 4 September 2024 verify that advertisements were placed in the Western Australian Government Gazette on 25 June 2024 and 16 July 2024 and in the West Australian Newspaper on 24 June 2024 and 26 June 2024, and that no correspondence or notice was received from any person in response to the advertisements by the deadline specified, being 30 August 2024.
Those advertisements having now been published and no notice of any claim having been given to the Administrators' solicitors, I now deal with the balance of the Administrators' application for the orders and declarations sought in relation to the distribution of the Estate.
Materials filed in support of the application
In support of the application, the Administrators rely on written submissions filed on 20 May 2024 and on affidavits of:
(a)Graham Thomas McGinley, Glen Michael McGinley and Terence Herbert House sworn on 4 February 2024;
(b)Matthew Jaime Bassett-Scarfe sworn on 23 April 2024;
(c)Jamie William Sloan sworn on 26 July 2024 and 4 September 2024, to which I have referred; and
(d)an affidavit of service of Steven John Walker sworn on 28 November 2023, verifying service of the originating summons on Mikayla-Jay.
Additionally, by orders made on 1 December 2023, the Administrators were given leave to rely on affidavits filed in non‑contentious proceeding PRO 3899 of 2022 sworn by them on 22 June 2022, 7 October 2022 and 17 February 2023.
The deceased's estate and beneficiaries
The following background concerning the deceased's family, his Estate and the beneficiaries is derived from the affidavits relied upon, as helpfully summarised in the written submissions, some of which I have referred to by way of introduction.
The deceased died intestate on 7 July 2021 at the age of 64 years.
On 21 February 2023, a grant of letters of administration of the Estate was issued to the Administrators by this court.
The value of the Estate available for distribution is relatively modest at approximately $389,000, less any further costs and expenses.
The deceased never married and had no de facto spouse or children at the time of his death. His parents predeceased him. He had six full siblings:
(a)Graham Thomas McGinley (Graham), who is one of the Administrators and now aged 74 years;
(b)Glen Michael McGinley (known as Michael), who is also one of the Administrators and now aged 63 years;
(c)Lynette Ailsa Edwards (Lynette), now aged 73 years;
(d)Donald James McGinley (Donald), now aged 69 years;
(e)John William McGinley (known as William), now aged 65 years; and
(f)Sharron, who I have referred to and predeceased the deceased.
The deceased also had four half siblings:
(a)Terence Herbert House (Terence), who is one of the Administrators and now aged 78 years;
(b)the first defendant, Kevin, who is believed to be deceased;
(c)the second defendant, Ayline, whose age and whereabouts are unknown; and
(d)Neil, who as I have referred to predeceased the deceased.
Sharron died leaving four children:
(a)Tania Lee Kirk, now aged 50 years;
(b)Mandy Louise Kirk, now aged 48 years;
(c)Kim Allan Kirk, now aged 47 years; and
(d)Leah Renae Kirk, now aged 44 years.
Neil had three children, one of whom, Donna Patricia McGinley, predeceased the deceased. Neil's remaining children are the third and fourth defendants, Wayne (who if still living will be aged 61 years) and Mikayla-Jay, who is now aged 55 years.
Relevant legal principles
Relevantly, s 14 of the Administration Act provides that where someone dies intestate leaving no parents, wife, de facto partner or issue, 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.
Acting Master McDonald set out the principles applicable to an application under s 66 of the Trustees Act in David Enzo Giovanetti as administrator of the estate of Mark Enrico Giovanetti v Giovanetti,[2] which I refer to and incorporate without repeating, and which I have applied in determining the application.
[2] David Enzo Giovanetti as administrator of the estate of Mark Enrico Giovanetti v Giovanetti [2023] WASC 201 [10] - [13].
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.[3] I accept paragraphs 21 to 29 of the submissions as to the principles that apply in relation to such an order.[4] They are well established and it is not necessary for me to repeat them.
[3] Re Benjamin; Neville v Benjamin [1902] 1 Ch 723.
[4] By reference to Victoria Agnes Nolan as Administratix of the Estate Of Barbara Nolan, deceased v Nolan [2011] WASC 224 [27], [41], [42], [50] - [51]; Bickford v Benson [2015] WASC 161 [13]; Application by Little (estate of Bruce Frederick Little) [2023] NSWSC 402 [32] - [33].
I also accept the submissions at paragraphs 30 to 34 of the submissions as to the principles that apply in considering whether there has been an effective disclaimer and the court's power under s 45 of the Administration Act to determine any question arising as to the administration or distribution of an estate.
Allanson J also considered the relevant principles in Jemal David Zagami (In his Capacity as Administrator of the Deceased's Estate) v James,[5] in which his Honour found that an oral disclaimer by a person entitled to distribution of an intestate estate was effective.
[5] Jemal David Zagami (In his Capacity as Administrator of the Deceased's Estate) v James [2017] WASC 292 (Zagami) [18] - [20], [22] - [23].
Having regard to the authorities referred to,[6] disclaimer is a refusal to accept an interest. It may be express or by conduct. To be effective, a disclaimer must be pre-emptory, constitute an absolute rejection of the gift or interest, evince a final and non-negotiable refusal to accept it and cannot be retracted. It 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.
[6] Re Birchall; Birchall v Ashton (1889) 40 Ch D 436; Shaw v McKean as executor of the estate of the late Ellen Mary May McKean [2023] QSC 261 [21] - [33]; In the estate of Simmons (deceased) (1990) 56 SASR 1, 10 - 11; Zagami [18] - [20], [22] - [23] (Allanson J), and the authorities referred to in that decision.
Determination
The Administrators depose that the deceased did not adopt any child and there is no person known to them who is or claims to be an illegitimate child of the deceased, or who claims to be entitled in distribution through any such person.
I am satisfied on the evidence adduced that the Administrators and their solicitors have conducted extensive enquiries and searches and taken all reasonable steps to locate Kevin, Ayline and Wayne. Advertisements have also been published calling for them, or any person claiming through them if they are deceased, or anyone claiming to have an interest in the Estate to send their claim to the Administrators. No claims have been received.
The Administrators' solicitors attempted to locate Kevin, Ayline and Wayne by phone using the White Pages, electoral roll and Landgate searches.
Leave was given for subpoenas to be issued to the Registrar of Births, Deaths and Marriages and copies of all relevant birth and death certificates obtained, which led to further inquiries and communications, as deposed to. A copy of Kevin's death certificate is attached to the Administrators' affidavit sworn on 17 February 2023, showing that he died on 19 December 1998.
In the death certificate, Kevin's father is stated as Donald McGinley (as opposed to Shane Ronald McGinley) and his mother is stated as Ruby Dau (as opposed to Dow). As such, it is not clear whether that Kevin was the deceased's half-brother, and his children beneficiaries of the Estate.
Efforts have been made to locate Kevin's children as stated on his death certificate, including through searches of White Pages, the electoral roll, Metropolitan Cemetery Board and Landgate and correspondence sent by letter. No responses have been received.
In relation to Ayline, searches were conducted and efforts made to locate her by reference to information contained in a copy of a marriage certificate obtained from the Registry of Births, Deaths and Marriages recording the marriage on 22 March 1952 of an Aileen Beryl McGinley.
On 31 January 2023, the Administrators' solicitors sent a letter addressed to 'Aileen Beryl McGinley/Lee' informing her of the grant of letters of administration and that the Administrators believed she may be the half sibling of the deceased as her father may be Dominic Joseph McGinley. The letter asked Ayline/Aileen to confirm whether her father was Dominic and to provide a copy of her birth certificate. No response was received.
The searches and inquiries made have not shed any light on Wayne's whereabouts.
I am satisfied that the Administrators and their solicitors have conducted appropriate and extensive searches with respect to Ayline, Kevin and Wayne and any child claiming through them. I am also satisfied that no reasonable further enquiries could be made which would improve the state of the evidence. Given the rights of the remaining beneficiaries and the size of the Estate, it is appropriate, in my view, to grant the orders sought under s 66(5) of the Trustees Act.
As to the orders sought under s 45 of the Administration Act in relation to Mikayla-Jay, the inquiries made of and information obtained from the Registry of Births, Deaths and Marriages confirm that Neil's child, Matthew John McGinley changed their name to Mikayla‑Jay McGinley.
As referred to, the Administrators' solicitors wrote to Mikayla‑Jay on 24 March 2022 stating that they may be a beneficiary of the Estate and requesting a copy of their birth certificate to verify. A follow up letter was sent on 7 April 2022.
In response, the Administrators' solicitors received a LinkedIn message from Mikayla-Jay on 13 April 2022 in the following terms:
Could you please send my condolences and I won't be putting Forward any interest to benefit. Or do you need it in writing.
The Administrators' solicitors wrote to Mikayla-Jay on 5 May 2022 referring to the previous letters and the LinkedIn message, stating that Mikayla-Jay did not wish to receive any benefit from the Estate, and requesting confirmation of the LinkedIn message in writing. No response was received.
Mikayla-Jay was served with the application on 1 November 2023.
I find that in the circumstances where Mikayla-Jay has not responded to further communications from the Administrators' solicitor, has been served with the application and has not sought to be heard, the LinkedIn message from Mikayla-Jay to the Administrators' solicitor together with their conduct expresses a sufficiently clear intention that they do not wish to receive any benefit from the Estate. I am satisfied it is an effective disclaimer.
Conclusion and orders
For these reasons, I am satisfied it is appropriate to make orders to the effect sought in the plaintiffs' further re-amended minute of proposed filed on 17 September 2024 as follows:
1.There be declarations that:
(a) the fourth defendant, Matthew John McGinley (also known as Mikayla-Jay McGinley) has disclaimed their interest in the estate of Shane Ronald McGinley (Estate); and
(b) the plaintiffs are at liberty to distribute the interest of the fourth defendant in the Estate as if the fourth defendant had died before the deceased, Shane Ronald McGinley, or did not exist.
2.The plaintiffs are at liberty to distribute the Estate in equal shares to:
(a)Graham Thomas McGinley;
(b)Glen Michael McGinley;
(c)Donald James McGinley;
(d)Lynette Ailsa Edwards;
(e)John William McGinley;
(f)Terence Herbert House; and
(g)Sharron Ann Kirk (deceased)'s four children in equal shares, namely:
(i) Tania Lee Kirk;
(ii)Mandy Louise Kirk;
(iii)Kim Allan Kirk; and
(iv) Leah Renae Kirk.
3.The plaintiffs' costs of the application be paid on a solicitor client basis from the Estate.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AM
Associate to Master Russell
18 SEPTEMBER 2024
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