In the Estate of HILDEGARD FRIEDA BIBIC (DECEASED)

[2018] SASC 64

SUPREME COURT OF SOUTH AUSTRALIA

(Testamentary Causes Jurisdiction)

In the Estate of HILDEGARD FRIEDA BIBIC (DECEASED)

[2018] SASC 64

Judgment of The Honourable Justice Stanley

18 May 2018

SUCCESSION - ADMINISTRATION OF ESTATE - DISTRIBUTION - MATTERS RELATING TO BENEFICIARIES - PRESUMPTION OF DEATH AND SURVIVORSHIP

The deceased died intestate in 2011. The Public Trustee sought advice and direction concerning the distribution of the estate. Its inquiries revealed that the deceased was not survived by any relative of the first, second or third degree. She may have been survived by one relative of the fourth degree, her uncle Paul Sauer, whose date of birth and current whereabouts are unknown. The proper distribution of the estate depends on whether the presumption of continuance of life has been displaced in respect of the deceased’s uncle Paul Sauer. If the presumption of life has been displaced, the estate is to be distributed in accordance with the provisions of s 72(d)(iv) of the Administration and Probate Act 1919 (SA) (“Act”). If it has not, s 72J(d)(iii) of the Act applies.

Held:

1.  The presumption of life in respect of the deceased’s uncle Paul Sauer has been displaced.

2. The Public Trustee may, without further inquiries, distribute the estate equally between the five relatives who are issue of the relatives of the fourth degree, pursuant to s 72(d)(iv) of the Act.

Administration and Probate Act 1919 (SA) s 72G, s 72J, referred to.
In the Estate of Papps (Deceased) [2017] SASC 117; Axon v Axon (1937) 59 CLR 395, applied.

In the Estate of HILDEGARD FRIEDA BIBIC (DECEASED)
[2018] SASC 64

Testamentary Causes Jurisdiction

STANLEY J.     

Introduction

1. The deceased died intestate in 2011.  The Public Trustee was appointed by an order of the Registrar of Probates as the administrator of the deceased’s estate.  The deceased was a widow with no children having survived her husband who died in 1993.  She was 84 years of age at death.  She was born in Germany.  She settled in Australia in 1950.  She married in the same year.   

2. The deceased had no siblings.  Unsurprisingly she survived her parents and grandparents. Investigations undertaken by the Public Trustee have established the existence of relatives of the fourth degree being uncles and aunts of the deceased.  Importantly, those investigations disclose that the deceased survived all of her uncles and aunts, with the possible exception of an uncle Paul Sauer.  Those investigations also have discovered surviving issue of the uncles and aunts.  They reside in Germany. 

3. The deceased’s estate was disclosed at a value of $444,593.  At 5 February 2018 the Public Trustee holds an amount of $394,472 in the estate.   

   The application

4. By summons the Public Trustee seeks advice and direction concerning the distribution of the net estate.   At issue is whether the presumption of continuance of life has been displaced in respect of the uncle Paul Sauer. 

5. Section 72J of the Administration and Probate Act 1919 (SA) (the Act) provides for the distribution of an intestate estate between relatives of the deceased[1] following the determination pursuant to s 72G that the deceased was not survived by a spouse or domestic partner or issue. The proper distribution of the estate is to be determined by application of s 72J which provides:

   [1]    As defined in s 72B.

   72J—Distribution amongst relatives

   The following rules govern distribution of an intestate estate amongst relatives, or issue of relatives, of the intestate:

   (a) where the intestate is survived by a single relative of the first degree, that relative is entitled to the whole of the intestate estate, and where the intestate is survived by two relatives of the first degree, those relatives are entitled to the whole of the intestate estate in equal shares;

   (b) where the intestate is not survived by a relative of the first degree but is survived by a relative of the second degree or issue of any such relative, then—

   (i)      if the intestate is survived by one relative of the second degree, and by no issue of any such relative who predeceased him, the surviving relative is entitled to the whole of the intestate estate;

   (ii)     if the intestate is survived by relatives of the second degree, and by no issue of any such relative who predeceased him, those relatives are entitled to the whole of the intestate estate in equal shares;

   (iii)     if the intestate is survived by a relative of the second degree, and by issue of any such relative who predeceased him, the intestate estate shall be divided into portions equal in number to the number of relatives of the second degree of the intestate who either survived the intestate or left issue who survived him and—

   (A) any relative of the second degree who survived the intestate is entitled to one of those portions; and

   (B) where a relative of the second degree died before the intestate leaving issue that survived the intestate, the issue is entitled per stirpem (through all degrees) to one of those portions (and if the issue comprises two or more persons, they share equally);

   (iv)    if the intestate is not survived by a relative of the second degree, but is survived by issue of such a relative, the intestate estate shall devolve upon that issue as if the issue were issue of the intestate;

   (c) where the intestate is not survived by any relative of the first or second degree, or by issue of a relative of the second degree, but is survived by a relative or relatives of the third degree, then—

   (i)      if the intestate is survived by only one such relative, that relative is entitled to the whole of the intestate estate; or

   (ii)     if the intestate is survived by more than one such relative, those relatives are entitled to the whole of the intestate estate in equal shares;

   (d) where the intestate is not survived by a relative of the first, second or third degree, or by issue of a relative of the second degree, but is survived by a relative of the fourth degree, or by issue of such a relative, then—

   (i)      if the intestate is survived by one relative of the fourth degree, and by no issue of any such relative who predeceased him, the surviving relative is entitled to the whole of the intestate estate;

   (ii)     if the intestate is survived by relatives of the fourth degree, and by no issue of any such relative who predeceased him, those relatives are entitled to the whole of the intestate estate in equal shares;

   (iii)     if the intestate is survived by a relative of the fourth degree, and by issue of any such relative who predeceased him, the intestate estate shall be divided in the portions equal in number to the number of relatives of the fourth degree of the intestate who either survived the intestate or left issue who survived him and—

   (A) any relative of the fourth degree who survived the intestate is entitled to one of those portions; and

   (B) where a relative of the fourth degree died before the intestate leaving issue that survived the intestate, the issue is entitled per stirpem (through all degrees) to one of those portions (and if the issue comprises two or more persons, they share equally);

   (iv)    where the intestate is not survived by a relative of the fourth degree, but is survived by issue of such a relative, the intestate estate shall devolve upon that issue, as if the issue were issue of the intestate.

6. In this case the proper distribution of the estate depends on whether the deceased was survived by a relative of the fourth degree. Section 72J(d)(iii) applies if the deceased’s uncle Paul Sauer survived her. If he did not then the estate is to be distributed in accordance with the provisions of s 72J(d)(iv).

7. The factual issue which will determine the advice and directions to be given by the Court in this case turns on whether the presumption of continuance of life is displaced.  The relevant principles are helpfully summarised in In the Estate of Papps (Deceased)[2] where Bampton J said:[3]

   [2] [2017] SASC 117.

   [3] [2017] SASC 117 at [46].

   The common law principles to be applied in circumstances involving the disappearance of a person summarised by Dixon J in Axon v Axon,[4] are also relevant to the question of whether the presumption of continuance of life has been displaced.  Dixon J stated:[5]

   [4] (1937) 59 CLR 395.

   [5] (1937) 59 CLR 395 at 404-405.

   When it is proved that a human being exists at a specified time the proof will support the inference that he was alive at a later time to which, having regard to the circumstances, it is reasonably likely that in the ordinary course of affairs he would survive. It is not a rigid presumption of law. The greater the length of time the weaker the support for the inference. If it appears that there were circumstances of danger to the life in question, such as illness, enlistment for active service or participation in a perilous enterprise, the presumption will be overturned, at all events when reasonable inquiries have been made into the man’s fate or whereabouts and without result. The presumption of life is but a deduction from probabilities and must always depend on the accompanying facts.

   …

   If, at the time when the issue whether a man is alive or dead must be judicially determined, at least seven years have elapsed since he was last seen or heard of by those who in the circumstances of the case would according to the common course of affairs be likely to have received communications from him or to have learned of his whereabouts, were he living, then, in the absence of evidence to the contrary, it should be found that he is dead. But the presumption authorizes no finding that he died at or before a given date. It is limited to a presumptive conclusion that at the time of the proceedings the man no longer lives.

   Latham CJ also explained in Axon v Axon that:[6]

   …  the application of the rule does not establish death at any particular time (In re Phené’s Trusts). It only produces the result that, if a person has not been heard of by persons who might have been expected to hear of him for a period of not less than seven years, he may be presumed to be dead at the time when the question arises in legal proceedings. The rule does not bring about the result that the person is deemed to be dead at the end of a seven‑years’ period (cases cited in Halsbury’s Laws of England, 2nd ed., vol. 13, pp. 630, 631).

   (Footnote omitted).

   [6] (1937) 59 CLR 395 at 401.

   The evidence

8. The Public Trustee relies upon the contents of an affidavit of Fiona Ruth Fagan affirmed 13 February 2018.  That affidavit deposes, inter alia, to the inquiries undertaken by the Public Trustee to locate beneficiaries. 

9. Those inquiries disclose that the deceased had no relatives of the first, second or third degree who survived her.  It appears that the deceased’s relatives remained in Germany. 

10. The evidence does not disclose the existence of any uncles or aunts on her father’s side.  The deceased’s mother Anna Sauer was born in 1906.  The evidence discloses that she had the following siblings: Franz Otto Sauer who was born in 1904 and died in 1977; Gertrude Sauer who was born in 1909 and died in 1992; Willi Walter Sauer who was born in 1914 and died in 2001; Martha Liesbeth Sauer who was born in 1916 and died in 1996; and Paul Sauer.  The evidence does not establish when Paul Sauer was born or if he is dead.  The only evidence concerning Paul Sauer which is before the Court is information obtained from his nephew Gerd Kursim.  He is the son of Gertrude Sauer.  He says that all that is known about Paul Sauer is that he lived in the German Democratic Republic after the Second World War.  As far as Gerd Kursim is aware, nothing has been heard from his uncle Paul for decades.  Gerd Kursim is 84 years of age. 

    Consideration

11. Does the evidence displace the presumption of continuance of life?  As Dixon J, as he then was, observed in Axon v Axon,[7] the presumption of life is but a deduction from probabilities and must always depend on the accompanying facts.  The displacement of the presumption is an inference drawn from the available evidence concerning the circumstances of when the person was last seen or heard of by those who in the ordinary course of affairs would be likely to have received communications from him or to have learned of his whereabouts were he living. 

    [7] (1937) 59 CLR 395 at 404.

12. While the evidence does not establish conclusively the date of Paul Sauer’s birth, the evidence does establish that his siblings were born between 1904 and 1916.  The evidence also establishes that Paul Sauer’s mother was born in 1882.  Accordingly, in 1916 Paul Sauer’s mother was 34.  At the outside that suggests that the latest Paul Sauer could have been born was around 1931.  If he was born in 1931 he now would be about 87 years of age.  Of course, he might have been born much earlier, even before 1904. 

13. The history of Germany following the Second World War was that after the surrender of the German Armed Forces in May 1945 Germany was divided into four occupation zones administered by the allied powers, the U.S., the U.K., France and the U.S.S.R.  In 1949 the Federal Republic was established in the West and the German Democratic Republic (GDR) was established in the East.  Until the erection of the Berlin Wall in 1961 there was relatively free movement between the zones.  After the fall of the Wall in 1989 and the subsequent reunification, free movement resumed in a unified Germany. 

14. While there is no evidence before the Court as to any difficulties of communication or contact which might have existed between people living in the GDR and the Federal Republic in the period between the erection and the fall of the Wall, I am prepared to assume that this might have been so.  Nonetheless, nearly 30 years have elapsed since the fall of the Wall and nothing has been heard of or from Paul Sauer by his family in Germany in that period. 

15. As Dixon J noted in Axon the greater the period that has expired since the time it was proved that a person was alive, the weaker the support for the presumption.  While the law has used the period of seven years as a yardstick to displace the inference, the period involved here is substantially longer.  Coupled with the potential that Paul Sauer could have died some time ago given the possibilities concerning his age, I am satisfied that the presumption has been displaced in this case. 

16. In the circumstances, I find that the deceased was not survived by any relative of the fourth degree, whether from the paternal line or from the maternal line, including, in particular, Paul Sauer. 

17. This conclusion leads to advice and directions being given to the Public Trustee pursuant to s 72J(d)(iv) that the estate be distributed on the basis that the deceased died intestate and was not survived by any relatives of the first, second, third or fourth degrees but was survived by relatives who are issue of the relatives of the fourth degree. Accordingly, those relatives are entitled to the whole of the intestate estate pursuant to s 72G(1)(c) and the Public Trustee is to distribute the estate equally between Alfred Franz Sauer, Siegfried Sauer, Gerd Kursim, Horst Kursim and Siegfried Klaus Heinrich (the beneficiaries).

18. The advice and directions are for the protection of the Public Trustee as the administrator of the deceased’s estate.   They do not determine any legal right or entitlement to distribution.  If Paul Sauer has survived the deceased he is entitled to make a claim for recovery of his entitlement from the above beneficiaries.  However, he cannot make any claim against the Public Trustee. 

    Conclusion

19. The Court advises and directs that the Public Trustee may without further inquiries administer and distribute the estate of Hildegard Bibic, deceased, upon the footing that the persons named below are the only persons entitled, as at the date of the death of the deceased, in distribution to share in the estate in the proportions hereafter set out:

    1.   As to one-fifth of the residue of the estate to Gerd Kursim;

    2.   As to one-fifth of the residue of the estate to Horst Kursim;

    3.   As to one-fifth of the residue of the estate to Alfred Franz Sauer;

    4.   As to one-fifth of the residue of the estate to Siegfried Sauer; and

    5.   As to one-fifth of the residue of the estate to Siegfried Klaus Heinrich.

20. The Court further directs that the Public Trustee’s costs of this action be paid out of the estate of the deceased. 

21. The Court makes orders in the following terms:

    1.   That the plaintiff is justified in not expending any further estate funds on investigating possible beneficiaries of the estate of Hildegard Bibic (‘the deceased’).

    2.   That the plaintiff is justified in presuming that the deceased was not survived by any paternal relatives.

    3.   That the plaintiff is justified in presuming that Paul Sauer predeceased the deceased. 

    4.   That the plaintiff is justified in presuming that the persons named below are the only persons entitled as at the date of death to share in the residuary estate of the deceased:

    4.1       Gerd Kursim – son of the uncle of the deceased;
    4.2       Horst Kursim – son of the uncle of the deceased;
    4.3       Alfred Franz Sauer- son of the uncle of the deceased;
    4.4       Siegfried Sauer – son of the uncle of the deceased;
    4.5       Siegfried Klaus Heinrich – son of the aunt of the deceased.

    5.   That the plaintiff is justified in administering and distributing the estate of the deceased as follows:

    5.1       As to one-fifth of the residue to Gerd Kursim;
    5.2       As to one-fifth of the residue to Horst Kursim;
    5.3       As to one-fifth of the residue to Alfred Franz Sauer;
    5.4       As to one-fifth of the residue to Siegfried Sauer;
    5.5       As to one-fifth of the residue to Siegfried Klaus Heinrich; and

    6.   That the plaintiff’s costs in this action be paid out of the residuary estate of the deceased.