In the Estate of Stanley George Mizon (deceased)
[2021] ACTSC 240
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the Estate of Stanley George Mizon (deceased) |
Citation: | [2021] ACTSC 240 |
Hearing Dates: | 20 August 2021, 1 September 2021 |
DecisionDate: | 1 September 2021 |
ReasonsDate: | 23 September 2021 |
Before: | McWilliam AJ |
Decision: | See [88] |
Catchwords: | JUDICIAL ADVICE – Intestate estate – application to the court for advice and authority – whether it is appropriate that the administrator carry out further searches in relation to the existence of next of kin of the deceased – whether a Benjamin order should be made |
Legislation Cited: | Administration and Probate Act 1929 (ACT) ss 49, 49C, 97A, Sch 6 Trustee Act 1925 (ACT) ss 4, 63 |
Cases Cited: | Application of New South Wales Trustee and Guardian [2014] NSWSC 423; 12 ASTLR 513 Application of NSW Trustee & Guardian [2014] NSWSC 1857; 14 ASTLR 436 |
Parties: | ACT Public Trustee and Guardian (Applicant) |
Representation: | Counsel G Blank (Applicant) |
| Solicitors Tetlow Legal (Applicant) | |
File Number: | PRO 553 of 2008 |
McWilliam AJ
On 1 September 2021, orders were made in relation to the estate of the late Stanley George Mizon (the Deceased), who died on 10 August 2008, aged 85, without a will. The Deceased had no partner and no issue.
Letters of Administration have been granted to what is now known as the ACT Public Trustee and Guardian (the Trustee), the applicant in the proceeding. The orders permitted the Trustee to finally distribute the Deceased’s estate, valued at $2,212.441.06.
The Trustee brought the proceeding ex parte, as an application for judicial advice pursuant to s 97A of the Administration and Probate ACT 1929 (ACT) (the Administration Act). The application was necessary because the Trustee considered there was some uncertainty about who the beneficiaries should be. The Trustee was unable to obtain formal confirmation that certain people who would have been statutory beneficiaries of the estate either existed or had died. Further, the Trustee had not issued formal statutory notices.
The Court’s power
Section 97A(1) of the Administration Act provides that the Trustee may take the opinion or obtain the direction of the Supreme Court on any question, whether of law or fact, arising under part 8 of the Administration Act, or in the course of his or her duties.
Under s 97A(2) of the Administration Act, 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.
An alternate source of the power is s 63(1) of the Trustee Act 1925 (ACT) (the Trustee Act), which provides:
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.
Under s 4(1)(b) of the Trustee Act, a “trust” includes the duties of a legal representative of a dead person.
Section 63(1) of the Trustee Act was the source of power utilised by an applicant in circumstances of uncertainty concerning a will in Re Estate of Love [2017] ACTSC 5.
I adopted the approach of treating the present application as one made under s 63(1) of the Trustee Act. I did so because, although the wording of the two sections founding alternative sources of power is different, in the present case, there was no material substantive distinction.
A trustee may seek judicial advice to resolve a legitimate doubt held as to the proper course of action, and to protect the trust and those entitled to it. The seeking of guidance of the Court also protects the position of the trustee. Examples of the cases from which those general principles emerge include: Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; 237 CLR 66 (Macedonian Church) at [61]-[74]; Re Australian Pipeline Ltd [2006] NSWSC 1316; 60 ACSR 625 at [17] and the authority there-cited; in Re Atkinson (dec'd) [1971] VR 612, at 615 and the authorities there-cited.
Although a trustee may seek judicial advice, the Court is not bound to give it: Re Application of Perpetual Trustee Company Limited [2003] NSWSC 1185 per Young CJ in Eq, at [8].
The principles that apply in determining whether to exercise the discretion to provide judicial advice are set out in Macedonian Church at [54]-[96].
A number of points identified by the plurality of the High Court in Macedonian Church are not relevant to the context of the present application. Those that were material to the present application are as follows:
(a)There are no express words limiting the statutory power to give advice, and no implied limitations precluding the Court from giving advice. The court is not limited to advice only in “non-adversarial proceedings” (although that was the nature of the ex parte application made by the Trustee here).
(b)The only jurisdictional bar is that the applicant must point to the existence of a question with respect to (relevantly here) the administration of trust property.
(c)The Court’s discretion to provide judicial advice is confined only by the subject matter, scope and purpose of the legislation. No discretionary factors are more significant or controlling than others.
(d)The procedure is summary in the sense it permits a trustee to obtain the opinion without commencing a suit for the general administration of a trust.
(e)The power operates as an exception to the Court’s ordinary function of deciding disputes between competing litigants and affords a facility for giving advice to a trustee that is “private”, in the sense that the primary function is to give personal protection to the trustee. Others may participate in the application because they may be affected by the advice. However, they are not, strictly speaking, “parties” to the proceeding.
(f)The application of the section will vary with the type of trust involved. Each application depends on its own facts and is essentially a matter for the discretion of the judge who hears it.
The sole purpose in giving advice is to determine what should be done in the best interests of the trust estate: Dulhunty v Dulhunty [2010] NSWSC 1465 at [44].
The issue
Given the discretionary nature of the Court’s power, the preliminary issue was whether the Court should give judicial advice.
The substantive issue on which the judicial advice was sought was whether the Trustee was justified in not undertaking any further next of kin searches, including any further advertising. The reason for seeking the judicial advice was because the Trustee had not been able to determine conclusively how the estate of the Deceased should be distributed. That, issue arose because the Trustee was unable to conclusively determine that:
(a)the deceased had no partner or issue;
(b)the deceased’s mother had died; and
(c)the deceased’s brother had no issue.
Orders sought
If the Court determined to provide judicial advice and confirmed that the Trustee was justified in not undertaking further searches, the Trustee sought an order permitting distribution of the estate, notwithstanding that there was some uncertainty about factual matters relevant to that distribution. The basis for such an order was that the above matters were assumed by drawing inferences from other proved facts.
Such an order is known as a “Benjamin order” after the case of in Re Benjamin; Neville v Benjamin [1902] 1 CH 723. It was described by Brereton J (as his Honour then was) in Application of NSW Trustee & Guardian [2014] NSWSC 1857; 14 ASTLR 436 at [4]-[6] as follows (emphasis added):
[4] A "Benjamin order… permits the executor or administrator of a deceased's estate to distribute the estate on a particular factual basis notwithstanding that there is some uncertainty about a factual matter relevant to the distribution, such as the existence of particular beneficiaries, protecting the executor from liability if a person entitled to a portion of the estate subsequently appears, without affecting the legal rights of such a person who, though not entitled to make a claim against the executor for that portion, may claim against beneficiaries who have been incorrectly paid [see generally Gonzales v Claridades [2003] NSWSC 508; (2003) 58 NSWLR 188, [75] (Campbell J); Lempens v Reid[2009] SASC 179, [32] (Gray J); Application by NSW Trustee and Guardian (Estate of the late Marco Sijakovic) [2012] NSWSC 1532, [23]-[25] (Hallen J)].
[5] A Benjamin order does not vary or destroy beneficial interests, but merely enables trust property to be distributed in accordance with the practical probabilities [Hansell v Spink [1943] Ch 396, 399; Re Green's Will Trusts; Fitzgerald-Hart and another v Attorney General and others [1985] 3 All ER 455, 462]. Although the particular basis set out in the order reflects inferences from the proved facts, the order is not a positive declaration of rights [D H Parry & J B Clark, The Law of Succession, (10th ed 1996, Sweet & Maxwell) at 471-2]. In Wilcox v Poole [1974] 2 NSWLR 693, Mahoney J (as he then was) referred (at 697) to the following passage from E R Daniell, Chancery Practice, (8th ed 1914, Stevens) at 1539-40:
There are some cases in which, although the interest of a party in the fund is not absolute, but subject to a contingency, it has been ordered to be paid out at once, the contingency being remote; and formerly the parties receiving the money entered into a recognizance or undertaking to refund it, in the event of the happening of the contingency; but it is no longer the practice, on making orders presuming death, to require security to refund. This has been done when the right of the parties for subject to the contingency of a female who is past the age of child-bearing, having children, or where a person has been presumed to be dead.
[6] His Honour described the principle as "a beneficial one which may enable parties to have the early enjoyment of property to which they will, as a matter of practical certainty, ultimately become entitled".
The emphasised words had clear application to the circumstances faced by the Trustee.
Brereton J then went on to state at [7]:
Accordingly, such an order may be made where there is a measure of uncertainty the proposed basis of distribution is justified by the proved facts as "a matter of practical certainty", or the possibility that it might ultimately be falsified is "a remote contingency".
In NSW Trustee and Guardian (Estate of Peter Urso) [2013] NSWSC 903, Hallen J stated at [39] (emphasis added):
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.
More recently, Crowe AJ applied the above principles in this jurisdiction, in the judgment of In the Estate of Hansie Hart [2019] ACTSC 317. At [7], his Honour extracted a useful summary of the applicable principles from Application of NSW Trustee and Guardian; Estate of Dudley Keith Vaugh [2019] NSWSC 850 at [11]-[15] per Henry J. There Crowe AJ emphasised (with citations omitted here) that what is required for a Benjamin order to be made is satisfaction 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.
That was the approach taken here.
Rules governing succession to the Deceased’s intestate estate
Under Part 6.2 of Schedule 6 to the Administration Act, if the Deceased has no partner or issue, the intestate estate is to be distributed to a parent.
If not survived by a parent, the intestate estate is to be distributed to the “next of kin”, defined in s 49(5) of the Administration Act as:
(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…
The reference in par (d) of sub-s 49(5) to the issue of “any of those brothers or sisters” captures the brothers and sisters of the intestate in par (a), as well as the parents of an intestate in par (c). It therefore refers to nieces, nephews, and cousins. That construction is confirmed by s 49C of the Administration Act which deals with how the distribution to next of kin is made. As will be seen, it expressly contemplates the possibility of distribution to cousins as well as to nieces and nephews, with the nieces and nephews given priority.
Section 49C is in the following terms (emphasis added):
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.
The words emphasised are those that were ultimately operative on the facts before the Court, which are discussed below.
The evidence
The application was primarily supported by two affidavits of the Deputy Public Trustee and Guardian and Senior Director of Wills, Estates and Trusts, Mr Gregory Burn. The affidavits set out the extent and results of the searches conducted by the Trustee, including the notices that were published in newspapers in the relevant locality.
Other affidavits read in support of the application were from those persons who will be affected by the orders, insofar as they are either beneficiaries through the application of the intestacy rules discussed below, or are the legal representatives of such beneficiaries (for example, an administrator of an estate of someone who was a beneficiary).
Counsel who appeared on the application fairly drew the Court’s attention to the fact that an application for judicial advice is usually accompanied by advice from counsel. In Re Estate Late Chow Cho-Poon; Application for judicial advice [2013] NSWSC 844; 10 ASTLR 251, Lindsay J explained the rationale behind the requirement at [48]-[49] as follows:
[48] The practice of the Court over many years (as a matter of practice, not compelled by legislative edict) has been to look for, and in an appropriate case rely upon, a memorandum of opinion of counsel, proffered by an applicant for s 63 relief, directed to the substance of questions arising for consideration on the application: see, for example, Application of Gnitekram Marketing Pty Limited [2010] NSWSC 1328 at [17].
[49] The absence of a well-considered memorandum of opinion may compel the Court to explore possibilities, of fact and law, that might not otherwise need exploration. A well-considered memorandum should anticipate lines of inquiry that a judge might be bound to identify and, one way or another, address them so as to focus attention on real problems in need of a solution.
By way of further assistance, in Application of New South Wales Trustee and Guardian [2014] NSWSC 423; 12 ASTLR 513, Kunc J stated at [3] (emphasis added):
The trustee ...with the assistance of such advice as it may think appropriate, must first decide what it is going to do in a given situation and then, if it wishes, seek judicial advice as to whether it is justified in acting in accordance with that decision. In almost all circumstances any application for judicial advice should be accompanied by counsel's opinion fully dealing with all the facts known to the trustee, all of the relevant legal issues and expressing a reasoned opinion in support of the particular decision which the trustee has made. It is inappropriate and arguably in dereliction of the trustee's duties to make an application for judicial advice where the trustee's consideration of the issue (whether or not reflected in counsel's opinion), has gone no further than identifying the problem, observing that it is difficult and then asking the Court what the trustee should do.
His Honour went on to further address the requirement for an opinion of a suitably qualified legal practitioner and what should be included in such an opinion, stating at [27] that the opinion will be a significant matter taken into account by the Court in determining whether or not to give the advice sought. Kunc J went on at [30] to clarify (emphasis added):
Insofar as the contents of counsel's opinion are concerned, those will be determined by thenature of the problem and the facts which give rise to it. The only general comment that can be made is that all relevant facts should be identified and considered, along with the application of the relevant legal principles and authorities to those facts. A reasoned conclusion as to the course to be followed by the trustee must be expressed.
In the present case, there was no formal memorandum of opinion. However, counsel provided detailed submissions and supplementary submissions, and appeared on the application to further assist the Court orally. During the hearing, counsel confirmed that the submissions contained the substance of the advice that would have been prepared for the Court in accordance with the usual practice. It was considered an unjustifiable expense to separately prepare an opinion when the substance of that opinion was addressed in the submissions.
I acceded to that course for the following reasons:
(a) The submissions were comprehensive and provided a reasoned conclusion of the course to be followed, by reference to the affidavit evidence that was ultimately read on the application.
(b) The submissions were prepared by counsel who was known to be experienced in succession law generally, and estate administration specifically.
(c) The uncertainty about factual matters relevant to the distribution of the estate in question was a limited issue, and one that was not particularly complex.
(d) The application was not made in the context of any existing or likely adversarial proceedings arising, with the evidence establishing that all those potentially interested in the administration of the estate supported the application.
However, the Court proceeding without a formal opinion should be taken as an exception to the general practice of what is ordinarily required on such an application, for the sound reasons expressed in the authorities.
Whether the Court should provide judicial advice
As will be seen from what follows, through the evidence and submissions, the Trustee sufficiently identified the existence of a question with respect to the administration of the Deceased’s estate. That question was whether the Trustee should proceed to finally distribute the estate in circumstances where there was a lack of conclusive proof as to: (a) the existence of potential beneficiaries; and (b), where a beneficiary was known to have existed, the lack of conclusive proof that such beneficiary predeceased the Deceased.
Was the Trustee justified in distributing the Estate?
The evidence before the Court was directed to applying the statutory next of kin provisions in the Administration Act. Each of the potential beneficiaries will be addressed in turn below. As will become apparent, only two nieces and a nephew of the Deceased survived him. They were all children of the Deceased’s sister.
Spouse or partner
At the time the Deceased died, he was living alone in a room in Ainslie Village in Campbell. The death certificate for the Deceased, issued on 13 November 2008 does not record any spouse or partner as at the date of death.
The Trustee undertook searches of the Registers of Births, Deaths and Marriages in every State and Territory of Australia. The Trustee also searched the subscription version of Ancestry.com.au. No record of the Deceased ever having married was found.
There was also nothing in the evidence to suggest the Deceased entered into an marriage, civil partnership or civil union while overseas.
The Deceased was the subject of a financial management order in January 1998, and documents that the Trustee obtained in relation to those proceedings do not make any reference to the Deceased either having any spouse or partner as at the date of death or having previously had any spouse or partner that died.
One of the difficulties faced by the Trustee arose because of the age of the Deceased, in that family and friends who may have been able to assist in obtaining documents or providing the information to the Trustee necessary to achieve the level of certainty as to existence of a partner beneficiary were no longer living.
In addition, due to the Deceased being estranged from his immediate family connections for many years, those extended family members who were still living were not able to assist in confirming the facts as indicated by the public records.
Although there remained a remote contingency that the Deceased had a spouse or partner, the searches that were undertaken exhausted what might reasonably be expected of the Trustee in terms of identifying any other person who might have been able to assist to confirm the position. I formed the view that further advertisements were entirely unlikely to advance the information already gathered by the Trustee.
Accordingly, it was appropriate to assume that the Deceased was not survived by any spouse or partner.
Children or issue
The same difficulties arose in relation to whether the Deceased had any child or issue.
The death certificate does not record the Deceased as having any children.
The searches undertaken by the Trustee of the Registers of Births, Deaths and Marriages in each State and Territory in Australia similarly revealed that there was no child born in respect of whom the Deceased was recorded as the father.
Again, there were no relatives or friends living who were able to state with certainty that the Deceased had no children.
In those circumstances, again, although there was a remote possibility that the Deceased had a child, given that thorough searches of the public record had been conducted and the evidence was all to the contrary, it was appropriate for the Trustee to assume the Deceased was not survived by any issue.
Parents of the Deceased
The Deceased’s parents were Mr William George Mizon and Mrs Irene Gertrude Mizon.
A death certificate for William Mizon was obtained. He was born in 1898 and died on 25 April 1978. He was 79 years when he died.
In relation to Irene Mizon, the Trustee conducted extensive searches, including newspaper advertisements and searches, a search of the Ryerson Index (an index of death notices appearing in Australian newspapers), searches of the historical electoral roll, a search of the Australian Cemeteries Index, and searches through the National Archives of Australia’s outgoing passenger records to see whether Mrs Mizon ever departed Australia for an overseas destination.
Despite these extensive searches, the Trustee was unable to confirm the death of Irene Mizon or Irene Dawson (being her maiden name).
There was a complicating factor in that William and Irene Mizon divorced in 1944, when Irene was 45 years old. The Deceased’s mother appeared to have left the family and it was possible that Irene later remarried and took a different surname. That might have been a plausible explanation for the lack of any death certificate being found for the Deceased’s mother in the names known to the Trustee.
However, even if Irene did remarry, this made little difference in the present application. On the public records that were available, Irene Mizon was born in November 1898. As at the date of the Deceased’s death, she would have been 110 years old. She would have been 122 years old this year. There was thus a practical improbability that the Deceased’s mother would have still been alive, either when the Deceased died or as at the date of the orders. It was plainly appropriate for the Trustee to assume the Deceased’s mother had died many years ago, predeceasing the Deceased.
In those circumstances, the Deceased was not survived by any parent.
Brothers and sisters of the Deceased
The Trustee was able to confirm that the Deceased had a brother and a sister:
(a) Francis Wallace (or Wallis) Mizon, and
(b) Emmie Marie Mizon (also known as Mary Berg).
The birth certificates for Francis and Emmie list only the three children known to the Trustee as the issue of William and Irene. Death certificates obtained by the Trustee indicated that Francis died on 15 December 1996 and Emmie died on 14 September 2004.
The Trustee undertook searches to see if either William Mizon or Irene Mizon had any other children following the divorce. Again, the Register of Births, Deaths and Marriages in each of the States and Territories did not disclose any other child born to either of the Deceased’s parents.
From the affidavit in support of the petition for divorce prepared by William Mizon in 1942 (the divorce affidavit), which the Trustee obtained, apart from the Deceased, Francis, and Emmie, the William Mizon had no other child. The death certificate for William Mizon similarly reflects that position, recording the Deceased, Francis, and Emmie as William Mizon’s only children.
The lack of any trace of Irene Mizon or Irene Dawson following the divorce made it difficult to confirm beyond argument that she did not go on to have further children with another partner. However, in light of the other evidence, it was appropriate assume that Francis and Emmie were the Deceased’s only siblings, and both predeceased the Deceased.
Accordingly, the Deceased was not survived by any brother or sister of whole or half blood.
Grandparents
For completeness having regard to the terms of the statute, William’s parents (the paternal grandparents of the Deceased) were Walter and Emma Mizon. In light of the age of the Deceased when he died and the age of his parents, it was inconceivable that either grandparent would have been living at the time the Deceased died.
Irene’s parents (the maternal grandparents of the Deceased) were Charles Dawson and Mary Ann Daley. The divorce affidavit deposed to a belief that Irene Mizon’s mother and father had died before 1921.
Accordingly, the Deceased was not survived by any grandparent.
Aunts, uncles (brothers or sisters of a parent of an intestate) and their issue
Consideration was similarly given to whether the Deceased had any aunts, uncles, or cousins. On the maternal side, the divorce affidavit deposed to Irene Mizon having no siblings.
On the paternal side, William Mizon appeared to have at least one sibling. That conclusion arose from a report of the Guardianship and Management of Property Tribunal obtained by the Trustee in relation to the financial management order obtained in 1998. At that stage, the Deceased was 74 and living in Ainslie Village, having moved there in 1991. From the material included in the Trustee’s affidavit, in 1997, the Deceased had two cousins, Mr Charles Mizon, and a female cousin whose daughter was living in Canberra. That suggested that the Deceased had at least one paternal aunt or uncle.
Although no searches were directly undertaken by the Trustee, in light of the Deceased’s age and the age of his parents, there was again no doubt that any aunts and uncles would also have predeceased the Deceased.
As to the cousins of the Deceased, the evidence was contained in the references to two cousins when the financial management order was made in 1998.
Charles Mizon was 87 years old. He had not seen the Deceased for over 30 years at that time. He appears to have died sometime between 1998, after the financial management order was made, and 2008, when the Deceased died. There was no direct evidence led in relation to when Charles Mizon may have died, but that conclusion was available to be drawn by reason of the effluxion of time, as he would have been 97 when the Deceased died.
The female cousin appeared to have died before 1998, as the information relied upon by the Guardianship and Management of Property Tribunal came solely from her daughter, Ms Thelma Hancock who resided in the ACT at that time.
It was not necessary for the Trustee to conduct investigations as to the identity or ongoing existence of any cousins of the Deceased because of what follows in relation to the nieces and nephews of the Deceased. By the operation of s 49C of the Administration Act set out at [25] above, if the Deceased had nieces and nephews, they were entitled to the intestate estate to the exclusion of any cousins.
Nieces and nephews (issue of any brothers and sisters of the intestate)
The Deceased’s brother, Francis Mizon, married Miss Jean Marlene Lines on 14 December 1946, according to the marriage certificate obtained by the Trustee. The death certificate for Francis Mizon established that he died in 1996 in South Australia.
The death certificate for Francis Mizon records no children. The Trustee had again searched the public records in every State and Territory and no children of the marriage were identified.
Although the Trustee was not able to conclusively determine that Francis and Jean had no children, that was the clear inference to be drawn from the searches of the public record. The possibility that such a claimant not only existed, but would now emerge, was remote.
In relation to the Deceased’s sister, known as both “Emmie Marie Mizon” and “Mary Berg”, who had predeceased him, the Trustee was able to establish that she had three children. They were:
(a) Suzanne Berg, who was born in 1950 and died in 2013;
(b) Christine Berg (now known as “Kristine Mackie”), who was born on 12 August 1952 and was living at the date of the hearing; and
(c) Ralph Berg, who was born 23 September 1954 and died 14 January 2019.
It will be apparent from those dates that each of the Deceased’s nieces and nephew survived the Deceased. However, Suzanne Berg and Ralph Berg died before the Deceased’s intestate estate was to be distributed.
Kristine Mackie was still living and swore an affidavit in the proceeding. She confirmed that she had two siblings, Suzanne and Ralph, who were living at the date of the Deceased’s death but have since died.
Ralph was not survived by any spouse or children. The Trustee ascertained that fact from searches of the public records, which did not identify any children of Ralph Berg. That state of affairs was consistent with Kristine Mackie’s knowledge and belief about her brother’s family circumstances.
In relation to Suzanne Berg, she was not survived by any spouse, but did have a son, Mr David Berg, who swore an affidavit in the proceeding. He deposed to being the only son and to his mother being estranged from the rest of her extended family.
He further deposed to the fact that he had not applied to formally administer his mother’s estate at the time she died, or at some time earlier than this proceeding. That was because at the time Suzanne Berg died, she did not leave a will and her estate consisted of only a couple of hundred dollars in a bank account, after all the expenses were paid, which had been paid directly to him as her sole survivor. Like a plot twist out of Charles Dickens’ Great Expectations, he had been informed, presumably by the Trustee, that he had a (rich) great uncle, being the Deceased, from whom he might expect a significant windfall. He was in the process of taking immediate steps to apply for letters of administration in relation to his mother’s estate.
Accordingly, the Deceased was survived by his nieces, Suzanne Berg and Kristine Mackie, and his nephew, Ralph Berg.
Should further searches be undertaken?
There was no utility in the Trustee continuing any further searches for the Deceased’s next of kin. All avenues appeared to have been exhausted. To the extent that there was any lack of certainty – such as the lack of a death certificate for the Deceased’s mother, the possibility that there may have been half-siblings that the Deceased did not know about after his mother divorced, or whether the Deceased, Francis or Ralph may have had any children notwithstanding the public record indicated to the contrary – the chances of any of those contingencies being realised were properly characterised as remote.
The judicial advice was therefore that the Trustee was justified in not conducting any further searches, including any further advertising of an intention to now distribute.
Conclusion and Orders
Applying s 49C(2) of the Administration Act, the Deceased’s nieces and nephew were entitled to equal distribution, each taking a third share. As Suzanne and Ralph have also since died, payment was required to be made to their estates. The Trustee gave an undertaking to the Court not to distribute to the estate of Suzanne Berg until letters of administration had been granted to Mr David Berg.
It follows from the above reasons that it was appropriate to make the Benjamin order sought. The orders of the Court made on 1 September 2021, pertaining to the substance of the application (as distinct from other procedural orders made on the same day), were:
1. The ACT Public Trustee and Guardian is at liberty to distribute the Estate of the late Stanley George Mizon (the Deceased) who died on 10 August 2008 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;
(b) Any issue;
(c) His mother, Irene Gertrude Mizon (nee Dawson);
(d) Any siblings other than Francis Wallace Mizon (also known as Francis Wallis Mizon) or Mary Berg (nee Emmie Marie Mizon);
(e) Any child of his brother Francis Wallace Mizon (also known as Francis Wallis Mizon);
(f) Any child of Mary Berg (nee Emmie Marie Mizon) other than Suzanne Berg, Kristine Mackie (Christine Berg) or Ralph Berg.
2. The Public Trustee and Guardian is at liberty to distribute the Deceased’s estate in equal shares to:
(a) The estate of the late Suzanne Berg;
(b) Kristine Mackie; and
(c) The estate of the late Ralph Berg.
3. The Public Trustee and Guardian’s costs of these proceedings are to be paid out of the estate of the late Stanley George Mizon on an indemnity basis.
| I certify that the preceding eighty-eight [88] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice McWilliam. Associate: Date: |
8
11
0