In the Estate of Grant Edward Flitton (No 2)

[2025] ACTSC 117

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

In the Estate of Grant Edward Flitton (No 2)

Citation: 

[2025] ACTSC 117

Hearing Date: 

Determined on the papers

Decision Date: 

27 March 2025

Before:

Mossop J

Decision: 

See [47]

Catchwords: 

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – Application for judicial advice – deceased left no will – application of Sch 6 of the Administration and Probate Act – evidence not conclusive but strongly indicative of deceased not being survived by partner, issue, parents or grandparents but survived by a cousin – counsel’s advice provided and affidavit evidence deposed by friend, former partner, solicitor and Public Trustee and Guardian – Benjamin order made

Legislation Cited: 

Administration and Probate Act 1929 (ACT), ss 44, 49(1), 49(5), 49C, 97A, Sch 6

Legislation Act 2001 (ACT), s 169

Relationships Act 2008 (Vic)

Trustee Act 1925 (ACT), ss 4(1)(b), 63(1)-(2)

Cases Cited: 

In the Estate of Grant Edward Flitton [2024] ACTSC 410

In the Estate of Love [2017] ACTSC 5

In the Estate of Stanley George Mizon (deceased) [2021] ACTSC 240

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; 237 CLR 66

Parties: 

Public Trustee and Guardian ( Applicant)

Representation: 

Counsel

G Blank ( Applicant)

Solicitors

Dobinson Davey Clifford Simpson ( Applicant)

File Number:

PRO 160 of 2019

MOSSOP J:  

Introduction

1․Grant Edward Flitton died between 3 and 4 March 2018. He did not leave a will. Letters of administration of his estate were granted to the Public Trustee and Guardian (PTG) on 7 March 2019.

2․The PTG now seeks the opinion, advice or direction of the court as to whether it would be justified in distributing the estate to the sole beneficiary it has identified under the rules for the distribution of estates on intestacy set out in the Administration and Probate Act 1929 (ACT).

3․The matter was referred to me to determine on the papers. For reasons I gave on 18 December 2024, the material that was put before me was inadequate and I gave the PTG an opportunity to file further evidence, any submissions or opinion from counsel in relation to the application: In the Estate of Grant Edward Flitton [2024] ACTSC 410. The PTG took up that opportunity, providing both further affidavit evidence as well as an opinion of counsel. It also filed an amended application in proceeding lodged on 30 January 2025. In that application, the PTG seeks following orders:

1.The PTG is justified in not conducting any further searches, including any further advertising of an intention to now distribute.

2.The PTG be at liberty to distribute the Estate of the late Grant Edward Flitton (the Deceased) who died on 4 March 2018 in the manner set out below in the absence of conclusive evidence that the Deceased was survived by:

(a)   any person who was his partner; or

(b)   any issue;

3.That the trustee be at liberty to distribute the Deceased’s estate to Jennifer Willis (nee Sligo).

4.That the trustee’s costs of these proceedings be paid out of the estate of the deceased on the indemnity basis.

Sources of power to give opinion, advice or direction

4․Section 97A of the Administration and Probate Act provides:

97APublic trustee and guardian may obtain directions of Supreme Court

(1)The public trustee and guardian may, ex parte, take the opinion or obtain the direction of the Supreme Court on any question, whether of law or of fact, arising under this part, or in the course of his or her duties.

(2)The Supreme Court must give its opinion or direction to the public trustee and guardian, and the public trustee and guardian must act in accordance with its opinion or direction and must, on the request of any person interested in the estate, communicate to the person the effect of the opinion or direction.

5․An alternative basis for the application is identified as being located in ss 63(1)-(2) of the Trustee Act 1925 (ACT), which provide:

63Advice

(1)A trustee may apply to the Supreme Court for an opinion, advice or direction on any question respecting the management or administration of the trust property, or respecting the interpretation of the trust instrument.

(2)If the trustee acts in accordance with the opinion, advice or direction, he or she shall be deemed, so far as regards his or her own responsibility, to have discharged his or her duty as trustee in the subject matter of the application, provided that he or she has not been guilty of any fraud or wilful concealment or misrepresentation in obtaining the opinion, advice or direction.

6․As the administrator of an estate, the PTG is a trustee for the purposes of the Trustee Act because s 4(1)(b) of that Act provides that a trust includes the duties of a legal representative of a dead person.

7․The nature of an application by a trustee for judicial advice is described in the judgment of the plurality in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; 237 CLR 66 at [54]-[96], and the principles relevant to an application of the present kind are summarised in In the Estate of Stanley George Mizon (deceased) [2021] ACTSC 240 at [13].

8․The orders sought are to the effect of a Benjamin order as that concept is described in Mizon at [18]-[22]. Such an order protects a trustee if a distribution is made notwithstanding that there remains some uncertainty as to the entitlements of the beneficiary. It is only appropriate where the distribution is justified by proved facts as a matter of practical certainty and the possibility that those facts might ultimately be falsified is a remote contingency: see Mizon at [20].

Evidence

9․The PTG relied upon the following affidavits in relation to the application:

(a)Danae Lacey dated 2 October 2024;

(b)Christopher Chenoweth dated 10 December 2024;

(c)Jessica Hewson dated 29 January 2025;

(d)Elizabeth Cutting dated 29 January 2025; and

(e)Christopher Chenoweth dated 30 January 2025.

10․Included in the affidavit of Mr Chenoweth of 30 January 2025 is a genealogical study disclosing the relatives of the deceased. That report and the underlying records contained in the affidavit of Ms Lacey dated 2 October 2024 disclose that, leaving aside the question of whether the deceased had a partner or any children, the only living relative of the deceased is his maternal uncle’s child, Jennifer Helen Willis.

11․In the present case, although the application was not initially accompanied by counsel’s opinion as to the circumstances, an opinion of Mr Blank of counsel dated 5 January 2025 was ultimately provided. The provision of such an opinion was the appropriate course: see In the Estate of Love [2017] ACTSC 5 at [7]; Mizon at [36].

Statutory provisions relating to the distribution of intestate estates

12․Section 49(1) of the Administration and Probate Act provides:

49Distribution of intestate estate

(1)The person or persons entitled to take an interest in an intestate estate, and the interest in that estate that that person or those persons are entitled to take must, subject to this division, be ascertained by reference to schedule 6 according to the facts and circumstances existing in relation to the intestate.

13․Schedule 6 is divided into two parts, Part 6.1 applies if a person is survived by a “partner”, and Part 6.2 applies if a person is not survived by a “partner”. Partner is defined in s 44:

partner—an intestate’s partner is either of the following:

(a)the spouse, civil union partner or civil partner of the intestate when the intestate died;

(b)the eligible partner of the intestate.

14․Eligible partner is also defined in s 44:

eligible partner, of an intestate, means someone, other than the spouse, civil union partner or civil partner of the intestate, who—

(a)was the intestate’s domestic partner when the intestate died; and

(b)either—

(i)   had been the intestate’s domestic partner continuously for 2 or more years when the intestate died; or

(ii)     is the parent of the intestate’s child, if the child was under 18 years old when the intestate died.

Note     For the meaning of domestic partner, see Legislation Act, s 169.

15․Section 169 of the Legislation Act 2001 (ACT) provides:

169       References to domestic partner and domestic partnership

(1)In an Act or statutory instrument, a reference to a person’s domestic partner is a reference to someone who lives with the person in a domestic partnership, and includes a reference to a spouse, civil union partner or civil partner of the person.

NoteThe Macquarie dictionary, (1997) defines spouse as ‘either member of a married pair in relation to the other; one’s husband or wife’.

(2)In an Act or statutory instrument, a domestic partnership is the relationship between 2 people, whether of a different or the same sex, living together as a couple on a genuine domestic basis.

Example—indicators to decide whether 2 people are in a domestic partnership

1   the length of their relationship

2   whether they are living together

3   if they are living together—how long and under what circumstances they have lived together

4   whether there is a sexual relationship between them

5   their degree of financial dependence or interdependence, and any arrangements for financial support, between or by them

6   the ownership, use and acquisition of their property, including any property that they own individually

7   their degree of mutual commitment to a shared life

8   whether they mutually care for and support children

9   the performance of household duties

10    the reputation, and public aspects, of the relationship between them

(3)In an Act or statutory instrument, a reference to a domestic partnership includes a reference to a marriage, a civil union and a civil partnership.

16․Part 6.2 of Schedule 6 to the Act, which applies if the intestate is not survived by a “partner”, provides:

Part 6.2		Distribution of estate if intestate not survived by partner
item	circumstances		How intestate estate of intestate is to be distributed
1	if the intestate is survived by issue		the issue are entitled to the whole of the intestate estate
2	if the intestate is not survived by issue but is survived by a parent or both parents		the parent is entitled to the whole of the intestate estate or, if both parents survive the intestate, the parents are entitled to the whole of the intestate estate in equal shares.
3	if the intestate is not survived by issue or by a parent but is survived by next of kin		the next of kin are entitled to the intestate estate in accordance with section 49C.
4	if the intestate is not survived by issue, by a parent or by next of kin		the Territory is entitled to the intestate estate.

17․The expression “next of kin” is given a meaning by s 49(5) of the Act, which provides:

(5)For schedule 6 –

(a)the brothers and sisters of an intestate; and

(b)the grandparents of an intestate; and

(c)the brothers and sisters of a parent of an intestate; and

(d)the issue of any of those brothers or sisters who predeceased the intestate;

are the next of kin of the intestate.

19․Section 49C provides:

49CHow distribution to next of kin is made

(1)If, under this Act, the next of kin of an intestate are entitled to the intestate estate, the persons entitled to that intestate estate must be ascertained as follows:

(a)the brothers and sisters of the intestate who survived the intestate, and the issue of a brother or sister of the intestate who died before the intestate, being issue who survived the intestate, are entitled to the intestate estate;

(b)if the intestate is not survived by any persons entitled to the intestate estate under paragraph (a) but is survived by 1 or more grandparents—the grandparent is entitled to the intestate estate or the grandparents are entitled to the intestate estate in equal shares;

(c)if the intestate is not survived by any persons entitled to the intestate estate under paragraph (a) or (b)—the uncles and aunts of the intestate who survived the intestate and the issue of such an uncle or aunt who died before the intestate, being issue who survived the intestate, are entitled to the intestate estate.

(2)An intestate estate must be divided among the brothers and sisters or the uncles and aunts of the intestate, and the issue of those brothers or sisters, or uncles or aunts, who died before the intestate, in the same way as the intestate estate would have been divided among those persons if the brothers and sisters or the uncles and aunts had been children of the intestate and the issue of a brother, sister, uncle or aunt who died before the intestate had been issue of a child of the intestate who died before the intestate.

Searches

20․The PTG performed some basic searches relating to the deceased in the Australian Capital Territory and States in the east of Australia.

21․In the Australian Capital Territory, searches disclosed;

(a)no record that he was the father of any child;

(b)no record of him having been married;

(c)no record of any civil partnership involving the deceased; and

(d)no record of any civil union involving the deceased.

22․Searches in Victoria disclosed:

(a)no record that he was the father of a child;

(b)no record of him having been married; and

(c)no record of him being in any registered relationship under the Relationships Act 2008 (Vic).

23․Searches in Queensland disclosed:

(a)no record that he was the father of any child;

(b)no record of him having been married; and

(c)no record of him being in any civil partnership.

24․Searches in New South Wales disclosed:

(a)no record that he was the father of any child; and

(b)no record of him having been married.

Did the deceased have a partner?

25․This question is fundamental to the issue of whether it is Pt 6.1 or Pt 6.2 of Sch 6 of the Administration and Probate Act that applies to the estate of the deceased.

26․The affidavit in support of the present application affirmed by Danae Lacey, an employee of the PTG, on 2 October 2024 attached the death certificate which recorded the deceased’s marital status as “never married”, although the source of the information in the death certificate is not made clear on the face of the death certificate. The death certificate recorded the cause of death as “asphyxia due to hanging - suicide”.

27․The most probative evidence was in the affidavit of Jessica Hewson, a friend of the deceased, and in the affidavit of Elizabeth Cutting, the ex-partner of the deceased.

28․In her affidavit dated 29 January 2025, Ms Hewson says she first met the deceased in 2000 when she worked with him at Prime Television in the ACT. She understood at that stage that he had worked for the news station for around 10 years. In 2001, she introduced him to her sister (Elizabeth Cutting) who commenced a romantic relationship with him. After leaving Prime Television in 2003, Ms Hewson kept in touch and saw him frequently. In October 2007, Ms Hewson got married and her sister and the deceased attended her wedding as a couple. At the end of 2008, the deceased’s relationship with her sister ended. He moved back to his family home in Lyneham to live with his mother. He was likely to have been residing at that address at the time of his death. He never mentioned to Ms Hewson that he had moved out of that home.

29․The deceased left his job at Prime Television in 2008. He worked at a furniture store called Cusack’s for a time before starting in a similar role at Harvey Norman in Fyshwick, ACT. The only other employment Ms Hewson was aware of was working part-time delivering newspapers for a newsagent in Dickson.

30․Although the deceased’s relationship with Ms Hewson’s sister had broken down, Ms Hewson maintained a friendship with the deceased over the years. They met in person about twice a year and spoke around three or four times per year over the phone. She was told of the deceased's death by an employee of the PTG on 8 March 2018. Ms Hewson was the only person to come forward to organise his cremation and funeral. She paid for this from her personal funds and was later reimbursed by the PTG.

31․She believed that the deceased struggled with alcohol misuse, substance abuse and gambling addiction during the course of their friendship. He confided to her on various occasions that he was lonely and depressed, drinking too much and owed money to people for gambling debts.

32․She was not aware of any other serious romantic relationship after his relationship with her sister ended. He never mentioned having a new partner. He never mentioned any children. On various occasions, she enquired about whether he was “seeing anyone serious” and the answer was always no. Her belief was that his substance abuse problems and alcoholism prevented him from participating in his own life in any meaningful manner.

33․The affidavit of Elizabeth Cutting dated 29 January 2025 records that, in the second half of 2001, she commenced a romantic relationship with the deceased. They initially lived separately. She used to drive to a property in Giralang to pick him up from time to time. He rented a room from the owner of the property. She did the driving because the deceased had lost his licence due to drink-driving. In early 2003, the deceased moved in with Ms Cutting at a property in Gordon, where they lived until the relationship ended in 2008. She attributes the unsustainability of their relationship to his lies about gambling, describing him as “a very unhappy person” whom she found very difficult to live with.

34․Following the end of their relationship, Ms Cutting corroborates Ms Hewson’s account that the deceased moved back to the family home in Lyneham and lived with his mother. The deceased told her on multiple occasions that he was living at the Lyneham property. From 2008 onwards, they remained friends even though their contact lessened over time. She saw him approximately once every three months and would talk with him on the phone occasionally.

35․Ms Cutting got married in 2012 and her first child was born in that year. After that, the deceased’s behaviour “had become increasingly desperate and sad”. He had isolated himself and lost contact with the majority of his friends, except for two men with whom he played cards or gambled. She describes an incident in 2012 or 2013 when, at his request, she attended the Lyneham property and their conversation and his behaviour indicated that he had been drinking excessively. She called police and ambulance officers, and he was taken to hospital. In 2018, she was told about his death by police.

36․During their relationship, the deceased introduced Ms Cutting to his parents. The only other relative of the deceased that she knew of was his cousin, Jennifer Willis, and Ms Willis’s husband. She understood that he had no living extended family other than Ms Willis.

37․Her evidence was that, during the entire time that she knew him, the deceased struggled with the same alcohol and gambling issues. He was regularly depressed. He did not engage with counselling after their relationship ended, except for some specific support following the incident in 2012 or 2013 described earlier. From her observations, she was of the opinion that the deceased was never well enough to form another romantic relationship. She observed him to be a solitary person, and that his health deteriorated over the years. He engaged with very few people. As a result, she expressed the opinion that it was highly unlikely that the deceased ever married or had a spouse or significant romantic partner after their relationship ended.

38․The evidence before the court indicates that the deceased had no partner within the meaning of the Administration and Probate Act at the time of his death. The possibility that he did have a partner who is yet to be identified may properly be characterised as a remote contingency.

Did the deceased have any children?

39․The evidence on this point is as follows:

(a)the searches referred to above disclose no record of the deceased being the father of any child; and

(b)the death certificate of the deceased records no children as children of the deceased.

40․The two affidavits of Ms Hewson and Ms Cutting referred to above each support the proposition that the deceased had no children by indicating the absence of any relationship which might have been likely to produce a child, and the absence of any mention by the deceased during his life of a child to persons whom he might reasonably have been expected to have disclosed such a child’s existence.

41․The evidence before the court indicates that the deceased was not the father of any child. The possibility that he was can properly be described as a remote contingency.

Distribution assuming that he was not survived by a “partner”

42․Given that the deceased did not have a “partner”, Pt 6.2 of Sch 6 of the Administration and Probate Act is the relevant Part, rather than Pt 6.1, which applies if the intestate is survived by a partner.

43․Working through the table in Pt 6.2 (as set out at [16] above):

(a)Item 1 is not applicable because, on the assumption outlined above, the deceased had no children and therefore was not survived by “issue”, that is, children or other lineal descendants.

(b)Item 2 is not applicable because the evidence discloses that both of the parents of the deceased died before him, his father in 2003 and his mother in 2012.

(c)Item 3 applies because the deceased was not survived by issue or by a parent but is survived by next of kin.

44․Item 3 operates by reference to s 49(5) of the Administration and Probate Act. So far as the categories of persons referred to in s 49(5) are concerned, the position is as follows:

(a)Section 49(5)(a), the brothers and sisters of an intestate: The deceased had no brothers or sisters.

(b)Section 49(5)(b), the grandparents of an intestate: The grandparents of the deceased all died before him. On his father’s side, his grandfather died in 1973. His grandmother died in 1929. A step grandmother died in 1975. On his mother’s side, his grandfather died in 1978, and his grandmother died in 1993.

(c)Section 49(5)(c), the brothers and sisters of a parent of an intestate: The deceased’s father had no siblings. The deceased’s mother had a brother, Kenneth Donald Sligo, who died in 2004.

(d)Section 49(5)(d), the issue of any of those brothers or sisters who predeceased the intestate: The “predeceased” qualification in this paragraph clearly applies to the “brothers or sisters” rather than to “the issue”. The deceased’s mother’s brother, Kenneth Donald Sligo, had a daughter, Jennifer Helen Sligo, who is alive. She is now known by the name Jennifer Helen Willis.

45․As a result of the application of the definition of next of kin for the purposes of Sch 6, there is only one next of kin, Jennifer Helen Sligo, now known as Jennifer Helen Willis, the cousin of the deceased, who survived him. If the deceased had no partner and no children that survived him, then, in accordance with Sch 6, Pt 6.2, item 3 of the Act, Jennifer Helen Sligo is entitled to the deceased’s estate.

Order sought

46․The orders sought are in similar terms to those made in Mizon. In my view, the possibility that the deceased had a partner or children is remote and no further investigation is warranted. In those circumstances, it is appropriate to make the orders sought. As McWilliam J noted in Mizon at [9], both the power under s 97A and under s 63 are available sources of power and, in a case like this, there is “no material substantive distinction”. In the present case, I will make orders under s 63, but I indicate that I would have made orders to the same effect under s 97A had it been necessary. It is appropriate that costs of the application be paid out of the estate.

Orders

47․The orders of the Court are:

(1)The Public Trustee and Guardian is justified in not conducting any further searches, including any further advertising of an intention to now distribute.

(2)The Public Trustee and Guardian be at liberty to distribute the estate of the late Grant Edward Flitton (the Deceased) in the manner set out below in the absence of conclusive evidence that the Deceased was survived by:

(a)any person who was his partner; or

(b)any issue.

(3)The Public Trustee and Guardian be at liberty to distribute the Deceased’s estate to Jennifer Willis (née Sligo).

(4)The Public Trustee and Guardian’s costs of these proceedings be paid out of the estate of the deceased on an indemnity basis.

I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 27 March 2025