New South Wales Trustee and Guardian

In the matter of the Estate of John Doe, deceased, the New South Wales Trustee and Guardian applied for a Benjamin order to determine whether the estate was bona vacantia, belonging to the Crown. The dispute arose from a reference in the deceased's documents to a "nephew" without further identification, leaving uncertainty over whether there were surviving relatives. The application was heard in the Supreme Court of New South Wales.

The court was tasked with determining whether further inquiries were necessary to ascertain the identity of the deceased's next of kin before concluding that the estate was bona vacantia. The key issue was whether the reference to a "nephew" was sufficient to warrant additional investigation, potentially identifying a surviving relative who could claim the estate. The court considered the onus of proof on the applicant to establish that no next of kin existed.

The court held that the reference to a "nephew" was ambiguous and did not provide sufficient detail to conclude that there were no surviving relatives. It was decided that further inquiries were necessary to clarify the relationship and determine if any next of kin existed. The court emphasised the importance of thorough investigation in cases involving potential bona vacantia, ensuring that all possible relatives are identified before concluding that an estate belongs to the Crown. The application for a Benjamin order was dismissed pending further investigation.