In the Estate of PAPPS (DECEASED) - [2017] SASC 117

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of PAPPS (DECEASED)
[2017] SASC 117
Judgment of The Honourable Justice Bampton
9 August 2017
SUCCESSION - ADMINISTRATION OF ESTATE - DISTRIBUTION - MATTERS RELATING TO BENEFICIARIES - PRESUMPTION OF DEATH AND SURVIVORSHIP
The deceased left her residuary estate equally to her five children – her will also provided that the children of a predeceased beneficiary take in substitution for their parent – one of the deceased’s sons has disappeared and cannot be located – the executor seeks an order authorising her to distribute the deceased’s estate on the footing that the missing beneficiary is presumed dead and that his share be distributed to a person who is believed to be his son – whether the presumption of continuation of life has been displaced – whether the person believed to be the missing beneficiary’s son is his son – whether the missing beneficiary fathered any other children – whether a “Re Benjamin” order should be made.
Held: The presumption of continuance of life has been displaced – orders made concurrently in SCCIV-17-894 granting the application brought by the person believed to be the missing beneficiary’s son seeking a declaration of parentage pursuant to s 9 of the Family Relationships Act 1975 (SA):
1. After the payment of the costs and disbursements incurred in ascertaining whether the missing beneficiary is living, whether he is the father of the person believed to be his son, and whether he fathered other children, the only persons entitled as at the date of death of the deceased to share in the estate are:
1.1. As to 20 per cent the person recognised as the missing beneficiary’s son pursuant to s 7 of the Family Relationships Act 1975 (SA).
1.2. As to 80 per cent the deceased’s four other living children in equal shares.
Administration and Probate Act 1919 (SA) s 69; Supreme Court Probate Rules 2015 (SA) r 80; Family Relationships Act 1975 (SA) s 7, s 9; Supreme Court Civil Rules 2006 (SA) r 313, referred to.
Re Benjamin; Neville v Benjamin [1902] 1 Ch 723; In Re Westover (1987) 139 LSJS 115; Axon v Axon (1937) 59 CLR 395, considered.

In the Estate of PAPPS (DECEASED)
[2017] SASC 117
Testamentary Causes Jurisdiction
BAMPTON J.

In this matter the plaintiff, Natalie Kaye Dunford (“Ms Dunford”), in her capacity as executor of the estate of Shirley Jean Papps (whom I shall refer to as “Shirley”) seeks advice and directions.[1] The problem confronting Ms Dunford is that one of the beneficiaries named in Shirley’s will has disappeared and cannot be located.
[1] Administration and Probate Act 1919 (SA) s 69; Probate Rules 2015 (SA) r 80.
Background
Shirley died on 19 August 2013 having made a will on 15 March 1984 (“the Will”) appointing her brother, John Small, and Ms Dunford (who was the solicitor who drafted the Will) as executors.
Shirley, who was divorced, left the residue of her estate to those of her five children who survived her in equal shares. Her children are Annette Michele Henschke (nee Papps), Cynthia Louise Grillo (nee Papps), Gregory John Christiansen (formerly Gregory John Papps), Robert Byrne Papps and Christopher Noel Papps. For convenience when referring to each of Shirley’s children I will refer to them by their first name; Annette, Cynthia, Gregory, Robert and Christopher.
Clause 4 of the Will provides that Gregory’s interest in Shirley’s estate is subject to a discretionary trust in a retention period as follows:
4.I DIRECT that my TRUSTEES HOLD UPON TRUST the share of the said GREGORY JOHN CHRISTIANSON formerly GREGORY JOHN PAPPS UNTIL SUCH TIME as my Trustees in their absolute discretion deem fit AND DURING the said period of retention the said GREGORY JOHN CHRISTIANSON attend Odyssey House in the State of Victoria for treatment of his heroin addiction and that only at the conclusion of such treatment AND UPON my said Trustees being satisfied by their own observations together with evidence of two medical practitioners (one of whom is either attached or recommended by the Police Department of South Australia) that the said GREGORY JOHN CHRISTIANSON is no longer a drug addict the said share together with all accrued benefits be paid to the said GREGORY JOHN CHRISTIANSON.
By cl 5 of the Will, Shirley directed that if any child of hers died in her lifetime or before attaining a vested interest in her estate leaving a child or children, then that child or children would take their deceased’s parent’s share of the estate when they attained the age of 18 years.
Annette, Cynthia, Robert and Christopher have survived Shirley. Gregory, however, is presumed by his siblings to be deceased as he disappeared in 2003 and has not been located.
On 31 January 2014 probate was granted to John Small with leave reserved for Ms Dunford to apply for probate. Mr Small died on 28 June 2014. On 9 October 2014 probate was granted to Ms Dunford.
The orders sought by the executor
In issuing the summons for advice and directions, Ms Dunford, in effect, seeks the authorization and protection of a “Benjamin Order”,[2] to distribute Shirley’s estate on the footing that Gregory is presumed to be dead and to distribute his share to Jesse Davies, who is believed to be Gregory’s son.
[2] Re Benjamin; Neville v Benjamin [1902] 1 Ch 723.
The affidavits filed in support of the application are:
·Affidavits of Brendan Patrick Murray affirmed on 24 February 2016 and 23 August 2016;
·Affidavit of Natalie Kaye Dunford affirmed on 24 February 2016;
·Affidavit of Jennifer Davies affirmed on 25 February 2016;
·Affidavit of Jesse Davies affirmed on 29 February 2016.
The specific orders sought are, that after payment of the costs incurred in respect of enquiries made to ascertain whether Gregory is living and if not whether he fathered children, the only persons entitled as at the date of Shirley’s death to share in the estate are:
·as to 80 per cent of the estate to Shirley’s children namely Annette, Cynthia, Robert, Christopher; and
·as to the remaining 20 per cent of the estate to Jesse Davies.
An order is also sought that the costs and disbursements in respect of enquiries made to ascertain whether Gregory is living, and if not whether he fathered children, be paid out of the residuary estate.
Affidavit of Mr Murray sworn 24 February 2016
Investigations to ascertain whether Gregory is alive
Mr Murray deposes that he was instructed by Mr Small prior to his death regarding the administration of Shirley’s estate. Mr Murray was instructed that Gregory was considered by Shirley and members of his family to be a drug addict. He was further instructed by Mr Small that Gregory was last seen in a hotel in Port Germein on the Yorke Peninsula in 2003 and that the South Australian police (“SAPOL”) had located his personal effects in one of the rooms of that hotel.
Gregory has been officially listed as missing by SAPOL since 2004 and at no stage have SAPOL declared Gregory to be deceased. When Mr Murray first met Mr Small on 9 September 2013, Mr Small handed him a bundle of documents including:
1An original SAPOL “With Compliments” slip addressed “Hello Shirley”;
2An original Field Receipt Book (Property) receipt numbered 200973 dated 12 February 2004; and
3A photocopy of a three page Informed Consent – Category 2 (Volunteers) Procedures form for property taken from Shirley’s house after Gregory disappeared, namely, two toothbrushes and a razor belonging to Gregory.
Mr Murray was informed by Mr Small that Shirley also voluntarily provided her own DNA sample to assist SAPOL in identifying Gregory if his body were eventually found.
As Gregory had been officially listed as missing by SAPOL, Mr Murray sought advice in 2013 from counsel as to the duties and obligations of Shirley’s executor in respect of the administration of the estate. Counsel recommended that Ms Suzanne Maiden, an Estate Services Officer Genealogy with the South Australian Public Trustee’s office, be instructed to undertake whatever searches were necessary to locate Gregory. Exhibit BMP13 to Mr Murray’s affidavit is a copy of Ms Maiden’s report wherein she states that she was unable to find any evidence that Gregory was alive and, in light of her investigations, she had a strong belief that Gregory was, in fact, deceased.
It will be noted that Shirley’s will refers to Gregory’s surname as “Christianson”. By reference to Ms Maiden’s report:
On 23 February 1983 Gregory John PAPPS (the one born in 1961 in Ballarat Victoria) changed his name to Gregory John Michael CHRISTIANSEN – Change of name Reference DP558.1983 Ref 80020430 in South Australia.
Other than the Will, all references and searches in relation to Gregory specify “Christiansen”.
Mr Murray also made enquiries of all Australian Births, Deaths, and Marriages Registries regarding the existence of a death certificate for Gregory. Each Registry has responded stating that there is no record of Gregory in their respective Registry.
Mr Murray has been advised by Cynthia that she considers her brother is deceased. He has been advised by Robert that he considers, as a result of Gregory’s drug taking and/or his association with undesirable persons involved in the drug trade, that Gregory either committed suicide or was murdered. Annette has told Mr Murray that she considers that Gregory is deceased and further, that if he were not he would have made contact with Shirley prior to her death and would have come forward to claim his inheritance after her death. Christopher has also advised Mr Murray that he considers that Gregory is deceased.
Investigations regarding Jesse Davies
Mr Murray was informed by Mr Small that Gregory had a son named Jesse Davies (“Jesse”) whom Shirley considered to be her grandson and with whom she had had an ongoing relationship. Mr Murray was also informed that Gregory was not named on Jesse’s birth certificate. Mr Small provided Mr Murray with the contact number for Jesse’s mother, Jennifer Davies (“Jennifer”). Mr Murray met with Jennifer and Jesse on 23 October 2014. Jennifer informed Mr Murray that Jesse was born on 29 December 1992 and that he is the biological son of Gregory. Both Jennifer and Jesse informed Mr Murray of their view that Gregory is, in fact, deceased.
Mr Murray deposes that Cynthia advised by email on 4 November 2015 that it was her strong view that Jesse is Gregory’s biological son. Cynthia further stated that in the event that the Court required DNA evidence of that fact, she supported the costs of DNA testing being paid out of Shirley’s estate.
Mr Murray was advised by Robert in a telephone conversation on 5 November 2015 that he also held the strong view that Jesse is the biological son of Gregory.
In a telephone conversation with Annette on 13 November 2015, Mr Murray was informed that she was without doubt that Jesse is Gregory’s biological son. Annette also stated that, as far as she was aware, everyone in the family including her siblings and Shirley (whilst she was alive) held the view that Jesse was Gregory’s biological son. Annette reported to Mr Murray that she was aware that Gregory was not noted on Jesse’s birth certificate as Jesse’s father and that it was her belief, from discussions she had had with Gregory, that he did not want his name on the birth certificate as this could have meant that he would be liable to pay child support for Jesse.
Mr Murray was advised by Christopher in an email dated 16 November 2015 that he believed that Jesse is the biological child of Gregory.
Investigations regarding any other children of Gregory
Mr Murray was instructed by Mr Small that rumours had circulated within Gregory’s immediate family that Gregory may have fathered a daughter in or about 1996. Mr Small also said that Gregory may have fathered twins in the late 1990s to a former girlfriend named Jayne Ryder, who had left Australia and was permanently residing in the United Kingdom. However, Mr Small said that neither he, nor Shirley, nor any of Gregory’s siblings had any evidence to confirm that either rumour was, in fact, true.
Mr Murray says that when he met with Jennifer and Jesse, Jennifer advised him that in or around 1996 or 1997, after she and Gregory had separated, that Gregory had intimated to her that he had fathered a daughter with a woman from Queensland.
In light of this information, counsel advised Mr Murray to place advertisements in all major newspapers in all Australian States and Territories seeking information regarding the whereabouts of Gregory and the whereabouts of any child or children of Gregory. Mr Murray exhibits to his affidavit copies of all of the notices he caused to be published.
Cynthia, Annette and Christopher have all reported to Mr Murray that they have no evidence of Gregory fathering any children other than Jesse. Robert informed Mr Murray that he recalled a discussion with Gregory prior to his disappearance in relation to his former girlfriend, Jayne Ryder. Robert recalled that when Gregory discovered that Jayne Ryder may have given birth to twins in the United Kingdom, Gregory said words to the effect, “I hope they’re not mine”. Robert told Mr Murray that he considered this to be an off the cuff remark by Gregory simply because he had previously had sexual relations with Jayne Ryder.
Payment of the estate’s costs and disbursements
Costs of administering estate
Mr Murray deposes that as at the date of swearing his affidavit, the estate’s legal costs to administer the estate (including the grant of probate and subsequent double grant of probate) totalled $3,959 inclusive of GST. He says that the estate had paid disbursements of approximately $2,500 inclusive of GST to administer the estate. He estimates his future legal costs to be approximately $1,000 inclusive of GST. He therefore estimates the estate’s legal fees and disbursements regarding the administration of the estate to total $7,500 inclusive of GST.
Costs of investigations regarding whether Gregory is alive, and if not, whether he fathered children
Mr Murray deposes that as at the date of swearing his affidavit, the estate’s legal costs regarding the whereabouts of Gregory and any children of his totalled $21,600 inclusive of GST. The disbursements totalled $2,600 inclusive of GST. Mr Murray estimates the future legal fees to obtain an order from the Court regarding the distribution of the estate will be approximately $15,000.
In summary, Mr Murray estimates the estate’s legal costs and disbursements will total $46,700 inclusive of GST.
Proposed distribution of the estate
Mr Murray deposes to the proposed distribution of the estate. He says that the net value of the estate before payment of legal fees and disbursements is $210,000.
Mr Murray says if the Court orders that one-fifth of the residuary estate be paid to Jesse in lieu of Gregory, he estimates that $32,660 will be paid to each of the residuary beneficiaries (Cynthia, Robert, Christopher, Annette, and Jesse) from the balance available for distribution of $163,300 after payment of legal fees and disbursements.
If the estate only meets payment of the estate administration costs estimated at $7,500 but otherwise the costs of investigating the whereabouts of Gregory and of any children of his totalling an estimated $39,200 are to be paid out of Gregory’s share of the residuary estate, Cynthia, Robert, Christopher, and Annette would each receive $40,500 and Jesse would receive only $1,300.
Mr Murray has received instructions from Cynthia, Robert, Christopher and Annette to the effect that they have no objection to all of the costs associated with the administration of the estate, the costs of the investigations to locate Gregory and any children of his, and the cost of the proceedings being paid out of the residuary estate.
Second affidavit of Mr Murray
In his affidavit sworn on 23 August 2016, Mr Murray details further investigations regarding Gregory’s whereabouts which have returned no result. He deposes to making enquiries of the Registrar of Motor Vehicles. Those enquiries revealed that Gregory last renewed his driver’s licence in 1994, which expired in 2004 and has not been renewed since. Enquiries of the Department for Correctional Services, the Lands Titles Office, the State Coroner’s Court, Housing SA, the Transport Workers Union, the Salvation Army Trace Service, Red Cross Trace Service and the Higher Courts Criminal Registry have been fruitless.
Affidavit of Ms Dunford
Ms Dunford deposes in her affidavit that, upon probate being granted to her on 9 October 2014 in respect of Shirley’s estate, she continued to instruct Mr Murray regarding the administration of the estate and to make enquiries regarding the whereabouts of Gregory and any child of his.
Affidavit of Jennifer Davies
Jennifer deposes that she met Gregory when she was 16 years of age and he was 30 years of age. She moved in with Gregory in early 1992 and became pregnant to him. She did not know that Gregory had a heroin addiction and was on the methadone program until after she discovered she was pregnant. She and Gregory were still together when Jesse was born on 29 December 1992. Gregory refused to be named on Jesse’s birth certificate. Jennifer says this was because Gregory did not want his disability support pension to be adversely affected.
Jennifer says that during their relationship Gregory used a myriad of drugs and that she would often find him asleep at the kitchen table with drug paraphernalia around him and sometimes with a needle stuck in his arm. She ended the relationship with Gregory in May 1995 because she was concerned about her safety and that of her son, given Gregory’s drug addiction. She says a month or so after they separated Gregory issued proceedings in the Family Court seeking access orders. Jennifer was represented by the family lawyer, Lesley Hastwell, in the Family Court proceedings. She does not recall the specific outcome of the proceedings except that orders were made for Gregory to spend time with Jesse.
Jennifer deposes to Gregory spending alternate weekends with Jesse and that he had semi-regular contact from 1995 until Father’s Day in 2002, when they went to the Royal Adelaide Show. That was the last time Jesse spent time with Gregory. Jennifer does not recall why she refused to allow Jesse to continue spending time with Gregory after that date, other than that she was fearful for his safety given Gregory’s addiction to drugs.
Jennifer reports that she was interviewed at her workplace by a police officer from the Missing Persons Unit in 2003 regarding Gregory’s apparent disappearance.
Jennifer says that when Jesse did spend time with Gregory they would often visit Shirley, whom Jesse called “Nanna Shirley”. After Gregory disappeared in 2003, Jennifer took Jesse to see Shirley from time to time.
Jennifer says that after she separated from Gregory, he started seeing a woman in Queensland and that Gregory told her that he had fathered a daughter with this woman. On occasions when dropping Jesse to Gregory’s house, Jennifer says she did see a little girl whom she assumed might been have Gregory’s daughter.
Affidavit of Jesse Davies
In his affidavit, Jesse says that he was born on 29 December 1992, that Jennifer is his mother, and that Gregory is his father. He says his paternal grandmother was Shirley, whom he called “Nanna Shirley”. His parents separated when he was young and he recalls spending time with his father on the weekends.

Jesse remembers good times with his father but there were times when his father spent periods of time in bed with a headache. He says the last time he saw his father was on Father’s Day in 2002 when he was aged nine and his father took him to the Royal Adelaide Show.
Displacement of presumption of the continuance of life
In order to distribute Gregory’s share of Shirley’s estate to Jesse, Ms Dunford seeks a determination that Gregory is presumed dead. The circumstances in this matter are such that the Court is unable to make a finding that Gregory has died. In In Re Westover, Legoe J articulated that:[3]
The mere fact that a person has not been heard of for seven years does not of itself raise any presumption of fact. But if circumstances exist such that a particular person should have been heard of within that time then the presumption of continuance of life which is the only presumption which the law makes in such circumstances may be displaced.
As such, it is necessary to determine whether the presumption of continuance of Gregory’s life has been displaced.
[3] (1987) 139 LSJS 115 at 117.
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]
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)
[4] (1937) 59 CLR 395.
[5] (1937) 59 CLR 395 at 404-405.
[6] (1937) 59 CLR 395 at 401.
Legoe J in Re Westover referred to the matters required to be proved in determining whether the presumption of the continuation of life has been displaced as set out in Mortimer on Probate Law and Practise.[7] Of those matters, I am satisfied that Ms Dunford has established:
1The description, age and circumstances of Gregory and circumstances surrounding his disappearance.
2Gregory’s siblings, Jennifer and Jesse’s belief in the death of Gregory and the basis of their belief, including evidence which is relevant to the question of whether the presumption has been displaced.
3That extensive enquiries have been made seeking information regarding Gregory’s whereabouts and no responses have been received.
4That persons who would expect to receive communication from Gregory have had no contact with Gregory since his disappearance.
5That enquiries have been made by SAPOL resulting in Gregory being listed as a missing person.
[7] (1^st ed., 1911) at pp. 555-556.
Conclusion
Gregory went missing in 2003 and has not been heard of since. I am satisfied that all reasonable investigations have been undertaken by Ms Dunford to determine whether Gregory is still alive. I am also satisfied that all reasonable investigations have been undertaken to investigate whether Jesse is Gregory’s son and whether Gregory fathered other children.[8] In my view, to require Ms Dunford to undertake any further searches would be unnecessarily expensive and time consuming with no reasonable prospect of eliciting any further information.
[8] First Affidavit of Brendan Patrick Murray.
I am satisfied, having regard to the evidence deposed to in the affidavits referred to above, that the presumption of continuance of life has been displaced.
Application for declaration of parentage
In Supreme Court action SCCIV‑17‑894, Jesse made an application for a declaration of parentage pursuant to s 9 of the Family Relationships Act 1975 (SA) (“the Family Relationships Act”). The application was supported by an affidavit of Mr Murray affirmed on 6 July 2017. Cynthia, Robert, Christopher and Annette have all been informed of Jesse’s application by Mr Murray. They have each stated that they do not wish to make their own representation regarding Jesse’s application, that they have no objection to the making of a declaration of parentage, and that they each consider Jesse to be the biological son of Gregory. Having regard to these matters and:
·being satisfied, as far as reasonably practicable, that all living persons whose interests are affected by the declaration sought have had the opportunity to make representations to the Court in relation to application;[9] and
·that presumption of the continuance of Gregory’s life has been displaced for the reasons given in these proceedings seeking advice and directions,
I am satisfied that Jesse’s claim for a declaration of parentage is supported by credible corroborative evidence.[10]
[9] Family Relationships Act 1975 (SA) s 9(3).
[10] Family Relationships Act 1975 (SA) s 9(4).
I therefore make a declaration in SCCIV-17-894 under s 9 of the Family Relationships Act that a relationship of father and child exists between Gregory and Jesse respectively. A copy of the orders I have made in SCCIV‑17‑894 concurrently with the orders made in this action are annexed to these reasons.
As the declaration of paternity has been made, pursuant to s 7(d) of the Family Relationships Act, Gregory is recognised as the father of Jesse.
There is insufficient evidence before me to make any findings as to whether or not any other children were fathered by Gregory.
Orders
As I am satisfied that the presumption of continuance of Gregory’s life has been displaced, and having made the declaration of paternity, Ms Dunford may distribute Gregory’s share in Shirley’s estate to his son Jesse.
Accordingly, I make the following orders:
1After payment of the costs incurred in respect of enquiries made to ascertain whether Gregory John Christiansen (formerly Gregory John Papps) is living and whether he fathered children, the only persons entitled as at the date of Shirley Jean Papps’ death to share in the estate are:
-       as to 80 per cent of the estate, Annette Michele Henschke (nee Papps), Cynthia Louise Grillo (nee Papps), Robert Byrne Papps and Christopher Noel Papps in equal shares; and
-       as to the remaining 20 per cent of the estate, Jesse Davies the son of Gregory John Christiansen (formerly Gregory John Papps).
2Noting that Annette Michele Henschke (nee Papps), Cynthia Louise Grillo (nee Papps), Robert Byrne Papps and Christopher Noel Papps consent, the costs and disbursements incurred in ascertaining whether Gregory John Christiansen (formerly Gregory John Papps) is living and whether he fathered children, are to be paid out of the residuary estate.
3A copy of these reasons are to be placed on Supreme Court file SCCIV‑17‑894.
Annexure – Orders made in SCCIV-17-894
Remarks
Orders made in chambers in the absence of the parties.
Orders made concurrently with orders in PROMA-16-40 (In the Estate of Shirley Jean PAPPS (Deceased)).
This file is to travel with PROMA-16-40 commenced by the executor of the estate of Shirley Jean PAPPS (deceased).
The deceased left her residuary estate equally to her five children. Her will also provided that the children of a predeceased beneficiary take in substitution for their parent.
One of the deceased’s children, Gregory John CHRISTIANSEN (“Gregory”), has disappeared and cannot be located. The executor seeks an order in PROMA-16-40 authorising her to distribute the deceased’s estate on the footing that Gregory is presumed dead and that his share be distributed to Jesse DAVIES who is believed to be Gregory’s son. It is necessary that a declaration of paternity be obtained in order that Gregory be recognised as the father of Jesse pursuant to s 7 of the Family Relationships Act 1975 (SA).
Jesse Davies, by summons filed on 7 July 2017, seeks a declaration of parentage pursuant to s 9 of the Family Relationships Act. I dispense with the requirement that Jesse Davies pay a filing fee in respect of the summons.
The summons is supported by an affidavit of Brendan Patrick MURRAY affirmed 6 July 2017. Mr Murray is the solicitor instructed by the Executor, Natalie Kaye DUNFORD.
Mr Murray has received instructions from Jesse Davies to seek the declaration of parentage in order that he may receive Gregory’s share in the estate of Shirley Jean Papps in substitution.
Mr Murray deposes to having written by letter dated 29 June 2017 to the residuary beneficiaries of the Estate of Shirley Jean PAPPS (Deceased), namely Annette Michele HENSCHKE, Cynthia Louise GRILLO, Christopher Noel PAPPS, and Robert Byrne PAPPS, informing each of the instructions he had received from Jesse Davies. The letter set out two alternative options referred to as Option 1 and Option 2. Each of the beneficiaries were requested to elect either Option 1 or Option 2 to indicate their attitude to the application made by Jesse Davies.
Mr Murray exhibits as a bundle marked “BPM3” the responses received from each of the beneficiaries wherein each confirm that they elect Option 1. In electing Option 1 the residuary beneficiaries each acknowledge:
(1)that they have received the letter dated 29 June 2017 from Mr Murray of Norman Waterhouse acting for Jesse Davies.
(2)that they do not wish to avail themselves of the opportunity to make their own representations to the Court in respect of the declaration of parentage sought by Jesse Davies.
(3)that they have no objection to the Court making the declaration of parentage sought by Jesse Davies.
(4)that the basis that they have no objection is that they each consider Jesse Davies to be the biological son of their brother Gregory John Christiansen, formerly Gregory John Papps.
In accordance with s 9(3) of the Family Relationships Act and r 313 of the Supreme Court Civil Rules 2006 (SA), I am satisfied, as far as reasonably practicable, that all living persons whose interests are affected by the declaration sought have had the opportunity to make representations to the Court in relation to the subject matter of the proceedings and it has been identified that the order is sought so that Jesse Davies may take Gregory’s share of Shirley Jean Papps’ estate in substitution.
Pursuant to s 9(4) of the Family Relationships Act, I am satisfied that in circumstances where Gregory has not been seen since he disappeared in 2003 and cannot be located, that the claim for the declaration of parentage is supported by credible, corroborative evidence detailed in my reasons for making the orders in PROMA-16-40 ([2017] SASC 117).
Accordingly, I am satisfied that it is appropriate to make the declaration of parentage sought pursuant to s 9 of the Family Relationships Act.
Order
1.    I make a declaration of parentage that a relationship of father and child exists between Gregory John CHRISTIANSEN (formerly Gregory John PAPPS) and Jesse DAVIES respectively.