In the Estate of Hansie Hart

[2019] ACTSC 317

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

In the Estate of Hansie Hart

Citation:

[2019] ACTSC 317

Hearing Date:

8 November 2019

DecisionDate:

8 November 2019

Before:

Crowe AJ

Decision:

See [11]

Catchwords:

WILLS AND ESTATES – Directions pursuant to s 97A of the Administration and Probate Act 1929 (ACT) – where named beneficiary cannot be located – where extensive searches have been undertaken

Legislation Cited:

Administration and Probate Act 1929 (ACT) ss 87C, 97A

Cases Cited:

Application of NSW Trustee and Guardian; Estate of Dudley Keith Vaughn [2019] NSWSC 850

re Benjamin; Neville v Benjamin [1902] 1 Ch 723

Re Mas; Weston and Donaldson [2018] VSC 405

Parties:

Public Trustee and Guardian of the ACT (Applicant)

Representation:

Counsel

P Thomas (Applicant)

Solicitors

Moray & Agnew (Applicant)

File Number:

PRO 239 of 2017

Crowe AJ

1. The late Hansie Hart died on 17 December 2016. She was 97 years old. On
   30 November 1999 she made her last will and testament. On 4 April 2017 the Public Trustee and Guardian of the ACT (the Trustee) elected pursuant to s 87C of the Administration and Probate Act 1929 (ACT) (the Act) to administer the estate. The estate is a small one. The inventory attached to the Administration Election indicates a net value of just over $57,000.

1. Clauses 4 and 5 of the will provided:

4. I GIVE the whole of my estate to my Trustee UPON TRUST to sell or retain the same and to pay my just debts funeral and testamentary expenses and all duties payable in my estate and to stand possessed of the balance (my residuary estate) UPON TRUST for my friend CHRIS BRELLS absolutely should she survive me by thirty (30) days and IT IS MY WISH that my said friend utilise such funds to provide for the care and comfort of any pet I own at the date of my death PROVIDED THAT should she dies before me then the following provisions apply.

5.I GIVE DEVISE AND BEQUEATH my residuary estate to my Trustee UPON TRUST for my daughter-in-law CLARE HART absolutely PROVIDED THAT should my said daughter-in-law die before me THEN FOR such of her children who survive me and attain their majority as tenants in common in equal shares.

1. By Application in Proceeding dated 21 October 2019 the Trustee seeks the opinion or direction of the Court as to the following:

1.Pursuant to s 97A of the Administration and Probate Act 1929 (ACT) that:

a.Pursuant to the principles in re Benjamin; Neville v Benjamin [1902] 1 Ch 723, the applicant may distribute the estate of the Late Hansie Hart to Clare Caple (referred to in the will as Clare Hart) as residuary beneficiary.

1. Section 97A of the 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 fact, arising under this part, or in the court of his or her duties.

(2)The Supreme Court must give this opinion or direction to the public trustee and guardian, and the public trustee and guardian must act in accordance with this 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.

1. The Trustee relies on the following affidavits:

(1)Emma Jane Reilly, affirmed 15 October 2019;

(2)Rachel Kathleen Watson, sworn on 15 October 2019; and,

(3)Gregory Burn, sworn on 18 October 2019.

1. These affidavits establish that the following searches have been conducted by the Trustee and its solicitors:

(1)Between 25 January 2017 and 22 June 2018, Mr Burns of the Public Trustee & Guardian, with the assistance of his staff, conducted a number of searches for Ms Chris Brells, including: on Facebook; White Pages; the electoral roll; via a Notice of Election filed published in the Canberra Times; and, using a genealogy service. None of these searches were successful in locating the individual. Relatives of the Deceased were also contacted for information, as well as her place of residence at the time of her death, a friend of the Deceased and an individual with the same name who confirmed they are not the person in question. All these attempts were also unsuccessful.

(2)On or about 3 May 2019, Ms Reilly of Moray & Agnew instructed Procare, a private investigation firm, to identify the Chris Brells referred to in the will of Hansie Hart. A report was received from Procare, dated 24 May 2019, advising that they were unable to definitively located Chris Brells. After providing further instructions on or around 31 May 2019 to Procare to conduct further searches, an additional report, dated 25 June 2019, was provided. This report also set out that despite attempts, Chris Brells could not be located.

(3)Between 30 July 2019 and 15 October 2019, Ms Watson of Moray & Agnew conducted a ‘person locator search’ via Infotrack and called the phone numbers of an individual with the same last name residing in Western Australia. These attempts also failed to locate Ms Chris Brells.

1. Mr Thomas, who appeared for the Trustee, referred me to the decision of Henry J in Application of NSW Trustee and Guardian; Estate of Dudley Keith Vaughn [2019] NSWSC 850 which contains a useful summary of the applicable principles. It is in the following terms (emphasis added) at [11]-[15]:

A “Benjamin order” (In re Benjamin; Neville v Benjamin [1902] 1 Ch 723), is an order made by the Court that permits an executor to distribute the deceased’s estate on a particular factual basis notwithstanding there is some uncertainty about a factual matter relevant to the distribution, such as the existence of particular beneficiaries. The order protects the executor from liability if a person who has an entitlement subsequently appears, who will not be able to claim against the executor but may claim against beneficiaries who have been incorrectly paid out pursuant to the order: Application of NSW Trustee & Guardian [2014] NSWSC 1857 at [4] – [5]; see also generally, Gonzales v Claridades [2003] NSWSC 508 at [75]; NSW Trustee and Guardian (Estate of Peter Urso) [2013] NSWSC 903 at [39]; Application by NSW Trustee and Guardian (Estate of the late Marco Sijakovic) [2012] NSWSC 1532 at [23] – [25].

A Benjamin order does not amount to a positive declaration of rights but enables the trust property to be distributed by an executor in accordance with the “practical probabilities” reflecting inferences from the proved facts: Hansell v Spink [1943] Ch 396; Re Green’s Will Trusts [1985] 3 All ER 355 at 462; Application of NSW Trustee & Guardian [2014] NSWSC 1857 at [5].

Certainty of the factual position is not required before a Benjamin order is made. An order for a proposed distribution may be made where there is a measure of uncertainty, such as where inquiries have proved inconclusive or suitable advertisements for a missing beneficiary produces no responses. As Hallen J said in NSW Trustee and Guardian (Estate of Peter Urso) [2013] NSWSC 903 at [39]:

“Thus, in a case where a trustee is faced with a practical difficulty in establishing the existence of possible beneficiaries or other claimants, the Court will give a direction to the trustee enabling it to distribute the trust property on an assumption of fact that there is no such beneficiary or claimant. In the case where a beneficiary has disappeared in circumstances where the absence leads to an inference of death, an order may be made that the trust estate be distributed on the basis that the beneficiary is dead”.

In West v Weston [1998] NSWSC 419, Young J, as he then was, took the view that even for a Benjamin order, all that is required is that the Court should be satisfied that it is probable that the persons entitled on intestacy have been ascertained and that no further reasonable inquiries should be made which would improve the state of the evidence.

The view of Young J in West v Weston [1998] NSWSC 419 has been supported and applied in subsequent cases: Re Meyerstein [2009] VSC 564; Application by NSW Trustee & Guardian (Estate of the late Marko Sijakovic) [2012] NSWSC 1532 and NSW Trustee & Guardian; Estate of the late Jan Szczudlik [2015] NSWSC 1529.

1. I note that no advertisements have been published by the Trustee specifically seeking information as to the whereabouts of Ms Brells. The failure to take the step of advertising was found to indicate insufficiency in the attempts to locate a beneficiary in Re Mas; Weston and Donaldson [2018] VSC 405 (Re Mas). In that matter McMillan J said (at [58]-[59]):

There is no indication in Ms Schaefer’s report that any advertisements were placed in any newspapers or in any other news media.  Although newspapers have lost some of their influence as a focal point for the dissemination of information, they still represent a traditional medium through which such inquiries might be made.  It would be helpful for an advertisement to be placed in major newspapers in the capital cities of each State or Territory and online.

It is not appropriate to make a Benjamin order where the evidence reveals gaps in the search for information for the whereabouts of Robert Donald Weston.  Accordingly, the plaintiff should make further enquiries and searches consistent with these reasons and, if necessary, the Court will make orders to assist the plaintiff in making such enquiries and searches.

1. The lack of advertisement here does cause me some concern as to whether, as in the matter of Re Mas, there is a gap in the search for information in relation to Ms Brells. However, having regard to all of the circumstances here I have concluded that it is appropriate for the estate to be distributed. I have had particular regard to the following:

(1)The time which has elapsed between the date the will was made and the age of the deceased. It is reasonable to infer that Ms Brells was of a similar age to Ms Hart. The great age of the latter at the time of her death renders it most unlikely that Ms Brells would have survived her.

(2)The size of the estate. In the complete absence of any information, or even a lead to information, as to the existence of Ms Brells it would not be a reasonable imposition to put the estate to the costs of further searches, by advertisement or otherwise.

1. I am satisfied that it is sufficiently unlikely that Ms Brells survived the deceased to warrant the distribution of the estate to Ms Clare Caple (formerly Hart), and that “no further reasonable inquiries should be made which would improve the state of the evidence”.

Orders of the Court

1. Accordingly, the orders of the Court are as follows:

(1)The applicant is justified in distributing the estate of the late Hansie Hart to Clare Caple (referred to in the will as Clare Hart) as if Chris Brells had predeceased Hansie Hart.

(2)Order 1 is made without prejudice to the rights of Chris Brells should it be established that she survived Hansie Hart.

(3)The applicant’s costs be paid out of the estate on an indemnity basis.

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe.

Associate:

Date:8 November 2019