New South Wales Trustee and Guardian

[2014] NSWSC 1633

Supreme Court

New South Wales

Medium Neutral Citation:	New South Wales Trustee and Guardian [2014] NSWSC 1633
Hearing dates:	Friday 14 November 2014
Date of orders:	14 November 2014
Decision date:	14 November 2014
Jurisdiction:	Equity Division
Before:	Brereton J
Decision:	The court directs that the plaintiff make enquiries of and concerning Mr Crawhall to ascertain his true relationship to the deceased and whether he is the child of a sibling of the deceased and generally in respect of the deceased’s family history.
Catchwords:	SUCCESSION – executors and administrators – application for Benjamin order – whether further enquiries regarding next of kin of deceased must be made before concluding the estate belongs to the Crown as bona vacantia – where evidence reveals reference to a “nephew” without further explanation – further enquires to be made
Category:	Procedural and other rulings
Parties:	NSW Trustee and Guardian (plaintiff)
Representation:	Counsel: R Kako (plaintiff) Solicitors: NSW Trustee and Guardian (plaintiff)
File Number(s):	2014/287679

Judgment (ex tempore)

1. HIS HONOUR: By summons filed on 1 October 2014 the plaintiff NSW Trustee and Guardian seeks an inquiry as to the next of kin of the late Betty Kathleen Foster upon intestacy, a Benjamin Order to the effect that the plaintiff would be justified in distributing the estate on the basis that certain persons are deceased and left no issue surviving the deceased and that the estate belongs to the Crown as bona vacantia, and directions as to whether any further enquiries, including advertisements, should be directed towards identification of any other person or persons and, if so, the nature of such advertisements or enquiries.

2. The plaintiff has not been able to prove by certificate the death of the deceased’s maternal grandfather William Matthews, but he was born on 2 April 1874 and I would be prepared to find that he did not survive the deceased. However, on a reading of the affidavit material, what leaps to the attention of the reader is references in paragraph 16 to the informant on the deceased’s death certificate being one Graham Crawhall, described as “nephew of the deceased”, as is confirmed by the death certificate itself which is exhibited. There is also in the probate application an affidavit excluding de facto relationship sworn on 12 December 2008 by the said Graham Crawhall, who in that affidavit says, “I am the nephew of Betty Kathleen Foster and have known her for 60 years. I visited her regularly while she resided at 25 Wollombi Road, Cessnock.”

3. The searches, and the family tree that has helpfully been prepared from them, do not disclose that the deceased had any siblings, and in those circumstances it may appear doubtful whether she had a nephew. It is possible that Mr Crawhall was her nephew in the sense that he was the nephew of her husband Albert Frederick Foster, and thus a nephew by marriage, but not by blood, of the deceased. That said, it seems to me that Mr Crawhall would have been the obvious place to commence enquiries about the deceased’s next of kin, and his description as a nephew implies that there might have been a brother or sister of the deceased, in which case under the rules of intestacy the estate would be held upon statutory trust for that brother or sister and, presuming that brother or sister to be deceased, the statutory trust would have the consequence that the estate would pass to such sibling’s issue, potentially the said nephew.

4. In those circumstances, it seems to me that before I could conclude that the estate belonged to the Crown as bona vacantia, I would need to be satisfied that appropriate enquiries had been made concerning Mr Crawhall, whose address is evident from the affidavit sworn in the probate proceedings.

5. Accordingly, the court directs that the plaintiff make enquiries of and concerning the said Mr Crawhall to ascertain his true relationship to the deceased and whether he is the child of a sibling of the deceased and generally in respect of the deceased’s family history.

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Decision last updated: 05 February 2015