Nolan As Administratrix of the Estate Of Barbara Nolan, deceased v Nolan
[2011] WASC 224
•29 AUGUST 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: VICTORIA AGNES NOLAN As Administratrix of the Estate Of Barbara Nolan, deceased -v- NOLAN [2011] WASC 224
CORAM: EM HEENAN J
HEARD: 2 MARCH & 15 AUGUST 2011
DELIVERED : 29 AUGUST 2011
FILE NO/S: CIV 1104 of 2011
MATTER :IN THE MATTER of the Trustees Act 1962(WA)
and
IN THE MATTER OF THE ESTATE OF BARBARA NOLAN, late of Carrington Lodge, 27 Ivermey Road, Hamilton Hill in the State of Western Australia, deceased
BETWEEN: VICTORIA AGNES NOLAN As Administratrix of the Estate Of Barbara Nolan, deceased
Plaintiff
AND
VICTORIA AGNES NOLAN
First DefendantEDWARD ARTHUR SIMMONS
Second DefendantNICHOLAS LEONARD NOLAN
Third DefendantPATRICK VINCENT NOLAN
Fourth Defendant
Catchwords:
Administration of estates - Trustees Act 1962 (WA), s 66(5) - Application for directions for liberty to distribute undistributed estate - Missing beneficiary - Efforts to trace missing beneficiary unsuccessful - Whether presumption of death - Factors for consideration - Benjamin orders - Conditional relief - Further advertising to be approved by court
Legislation:
Administration Act 1903 (WA)
Trustees Act 1962 (WA), s 66(5)
Result:
Conditional order, subject to review or revocation after further specified approved advertising and notice, to distribute whole of unadministered estate to defendants notwithstanding inability to trace missing beneficiary
Category: A
Representation:
Counsel:
Plaintiff: Mr H Moser
First Defendant : Mr H Moser
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Solicitors:
Plaintiff: K G Sorensen
First Defendant : K G Sorensen
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Case(s) referred to in judgment(s):
Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662
Bradshaw v Bradshaw [1956] P 274
Chard v Chard (otherwise Northcott) [1956] P 259
Clegg v Rowland (1866) LR 3 Eq 368
Coleman v Shang [1961] AC 481
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
Harrison v Kirk [1904] AC 1
Hunter v Young (1879) 4 Ex D 256 CA
In re Benjamin; Neville v Benjamin. [1902] 1 Ch 723
Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349
Pipon v Pipon (1744) Amb 25, 799; 27 ER 14
Public Trustee v Solah [1999] NSWSC 660
Re Dolling [1956] VLR 535
Re Evans (dec) [1999] 2 All ER 777
Re Frewen, Frewen v Frewen (1889) 60 LT 953
Re Gess, Gess v Royal Exchange Assurance [1942] Ch 37
Re Green's Will Trusts [1985] 3 All ER 445
Re Hickey (dec); Dwyer v Hickey [1925] VLR 270
Re Holzberger's Trusts [1935] QWN 46
Re Phillott's Trusts [1940] QWN 23
Re Reynolds Trusts (No 2) [1942] QWN 40
Re Sheridan (dec) [1959] NZLR 1069
Re Taylor's Estate [1969] 2 Ch 245
Re Watkinson [1952] VLR 123;
The Public Trustee as Administrator of the Estate of Harold Beaver (dec) v MacGregor [2001] WASC 222
Will of Walker (1943) 43 SR(NSW) 305
EM HEENAN J: Catherine Wilson nee Simmons, one of the five children of the deceased, Barbara Nolan, who died intestate on 16 August 2008, cannot be found. She is the eldest child and was born in England on 4 August 1946, married there on 29 March 1969 and would, therefore, if alive, now be 65 years of age. She remained in England when the deceased, her younger brother and second family migrated to Australia in March 1965. There was little contact between the deceased and Catherine Simmons after the family came to Australia and it seems that they lost track of her some time before 1996 at the latest. They have had no news of her since before then.
By virtue of s 14(1) and Item 5 of its Table in the Administration Act 1903 (WA) and s 14(2b) of that Act, each of the five children of the deceased is entitled to share equally in the administration of her estate.
The plaintiff, Victoria Agnes Nolan, is the administratrix of her late mother's estate and now, because of the failure of all efforts so far to locate Catherine, has applied by originating summons for directions for the following relief or such other orders as the court may consider fit:
(1)a declaration pursuant to s 66(5) of the Trustees Act 1962 that the plaintiff be at liberty to distribute such part as remains undistributed of the estate of the deceased in equal shares to:
(a)Edward Arthur Simmons
(b)Victoria Agnes Nolan
(c)Nicholas Leonard Nolan
(d)Patrick Vincent Nolan; and
(2)that any claim which may be made by Catherine Simmons, born 4 August 1946, in the future be disregarded.
Parties
The deceased, Barbara Nolan, nee Shaw, was born in the United Kingdom on 24 April 1924. She married twice.
The first marriage was to Eric William Simmons on 31 May 1945 at the parish church in the parish of St James Muswell Hill in the county of Middlesex in England. There were two children of that marriage, Catherine Simmons, born 4 August 1946, and Edward Arthur Simmons, born 17 March 1955. That marriage ended in divorce. A decree of dissolution of the marriage was made in the High Court of Justice Probate, Divorce and Admiralty Division in the county of York on 3 March 1961 on the grounds of the husband's desertion of his wife without cause for a period of at least three years immediately preceding the petition. By that decree the deceased, then Mrs Barbara Simmons, was granted custody of the two children, Catherine and Edward Arthur Simmons, until further order of the court, subject to a direction that the children should not be removed from the jurisdiction of the English High Court without leave until they respectively attain the age of 18 years, but provided that if the mother gave a general written undertaking to the court to return the children to the jurisdiction when called upon to do so and unless otherwise directed with the written consent of the respondent, the mother may remove the children from the jurisdiction during the school holidays for any period specified in such written consent.
In 1961 the deceased again married to Frederick Vincent Nolan. The exact date and place of this marriage have not been the subject of evidence in these proceedings but that omission is not of any significance. There were three children of that marriage, the plaintiff, Victoria Agnes Nolan, born 30 July 1961, Nicholas Leonard Nolan, born 3 October 1962, and Patrick Vincent Nolan, born 29 September 1963. All three, and their elder half‑brother, Edward Arthur Simmons, are now living in Australia and are the defendants. As to the role of Victoria Agnes Nolan as plaintiff in her dual capacity as administratrix and as first defendant in her personal capacity, see Trustees Act s 57, although no directions from the court as to the manner in which the opposing interests are to be represented have been sought or given.
It is not known what, if any, contact Eric William Simmons maintained with the deceased or his two children after the divorce. The only evidence is that the deceased and her second family emigrated to Australia with her son, Edward, in or about March 1965. Edward was then aged 10 years. It is not known whether the deceased had the approval of the boy's father or of the court to take him out of England but that is certainly what happened. Again for reasons which are not known, Catherine Simmons remained in England. She was aged 18 years at the time when her mother and brother emigrated to Australia.
Frederick Vincent Nolan, the second husband of the deceased, predeceased her. Barbara Nolan, as she then was, died on 16 August 2008 intestate. Letters of administration of her estate were granted by this court to her daughter, Victoria Agnes Nolan, the plaintiff and first defendant, on 17 February 2009.
The plaintiff, as administratrix, has embarked upon the administration of her late mother's estate and has reached the point where all the assets have been realised, major liabilities discharged and four-fifths of the net balance of the estate has been distributed to those entitled who, as already noted, are the four children living in Australia. The difficulty which has prompted these proceedings is that Catherine Simmons cannot be found, and her one‑fifth share of the estate remains undistributed.
To consider what orders or directions the court should make it is necessary to set out the family background and such evidence as the plaintiff has been able to assemble and adduce in these proceedings.
Inquiries for Catherine Simmons
In her affidavit Victoria Nolan, says that after her mother and half‑brother, Edward, migrated to Australia there was little contact between the deceased and Catherine. The deceased told the plaintiff that Catherine was last known to be living in or around the Leeds area in the north of England. In 1996 Victoria Nolan travelled to the United Kingdom for a holiday. At that date, her mother had no contact with Catherine and did not know where she was living. While the plaintiff was in England, she spent time in Leeds searching for Catherine's current address or some means of contacting her. She spent two days at the public library in Leeds searching the electoral records for the region but found no record of a Catherine Simmons in the electoral records. The plaintiff also searched the records at the town hall in Leeds for details of births, deaths and marriages for a Catherine Simmons but again did not find any relevant records.
After her mother's death and in her role as administratrix the plaintiff instructed her solicitors to make inquiries in the United Kingdom to try and locate Catherine. In her affidavit she deposes that, through the general register office in the United Kingdom, her solicitors obtained a copy of Catherine's birth certificate verifying her date of birth, which Victoria had previously not known. That document shows that Catherine was born on 4 August 1946 at 192 Muswell Hill Road, Hornsey, in Middlesex. Her father's occupation was recorded as 'L.AC 1252382 RAF (clerical officer customs and excise)'.
Again, according to the plaintiff, her solicitors used ancestry websites to search for further records of a Catherine Simmons using the birth date which had been ascertained. As a result of these searches, they discovered that Catherine had married Terence Wilson on 29 March 1969 at Haworth in Yorkshire and a true copy of the marriage certificate is in evidence. Haworth is approximately 31 km from Leeds. The marriage certificate shows that on 29 March 1969 at the Roman Catholic Church, Ebor Lane, Mytholmes, Haworth in the district of the Worth Valley, County of York, Catherine Simmons then of 318 Shipton Road, Kerghley, daughter of Eric Simmons (dec), commercial traveller, married Terence Wilson, a gardener's labourer, then of Chapel 8 Lane, Oakworth. She was then aged 22 years and her husband 21 years.
The plaintiff, by her solicitors, again used ancestry websites to conduct further searches of electoral records and title registries throughout the United Kingdom using both names, Catherine Simmons and Catherine Wilson, and her date of birth. These searches returned two results which matched Catherine Wilson's birth year and of persons who were living in the Leeds and Yorkshire region. The persons concerned were:
Catherine Wilson, 25 Hawthorn Road, Bolton‑Le‑Sands, Carnforth, LA58EH United Kingdom; and
Catherine Wilson, 15 Givendale Grove, York, YO103QF, United Kingdom
The plaintiff's solicitors wrote twice to those two persons informing them of the reason for their search for Catherine Wilson but received no response.
In addition, the plaintiff instructed her solicitors to place an advertisement in a newspaper covering the Leeds region, requesting information about Catherine. Her solicitors organised for an advertisement to be published on 6 August 2010 in the public notices of the Yorkshire Post, a newspaper delivered throughout the county of Yorkshire. A copy of the advertisement is in evidence and it reads:
CATHERINE WILSON (nee SIMMONS)
We are a firm of solicitors based in Perth, Western Australia. We act for the Estate of Barbara Nolan (nee Simmons) (deceased). We are trying to locate the deceased's daughter Catherine Wilson (nee Simmons), born in 1946. She was last known to be living in or around Leeds. If you have information about Catherine Wilson or any other information that may help us in our investigations please contact our office.
Following the advertisement were the contact details of the plaintiff's solicitors. The only response received to the advertisement was from a gentleman offering his services to trace Catherine. That was not pursued.
The plaintiff considers that she has exhausted all known avenues of locating Catherine and seeks directions of this court to distribute these moneys to the other four beneficiaries and to disregard any further the entitlement of Catherine.
This was the situation when this application originally came on for hearing on 2 March 2011. However, I then ordered that further inquiries should be made and adjourned the application sine die, directing that the plaintiff should attempt to locate the telephone numbers of the two named persons identified in the Yorkshire region and to inquire by telephone, if possible, whether either was the missing Catherine Wilson. I further directed that failing contact with either by telephone, the plaintiff should arrange for an agent in the United Kingdom to attend the addresses of the persons concerned, to attempt to communicate with them in order to ascertain whether either was the missing Catherine Wilson, daughter of the deceased.
Since then, further affidavits have been filed deposing to the results of these attempts. There is an affidavit from Mr Colin Ashley of 3‑7 New Street, Carnforth, Lancashire, United Kingdom, solicitor, who deposes that he has been a practising solicitor in the United Kingdom for 34 years and is a consultant with the firm of Ratcliffe & Bibby Solicitors at 3‑7 New Street, Carnforth, Lancashire. Upon instructions from the plaintiff's Western Australian solicitors, he attended to see Mrs Catherine Wilson of 25 Hawthorn Road, Bolton‑Le‑Sands, Carnforth, Lancashire on Wednesday, 16 March 2011 at 1725 hours. He deposes that he met with Mrs Catherine Wilson, a lady of mature years, and asked her whether her name was Catherine Wilson and she said, 'Yes.' Mr Ashley also deposes that Mrs Wilson confirmed with words to the effect, 'I have received the two letters previously from KG Sorenson, barrister and solicitor. I tried to respond to one of the letters by email but the email was bounced back.' Mrs Wilson further explained to Mr Ashley that her maiden name had been Field and that her mother's maiden name had been Swindlehurst. She told him that she had no knowledge of Barbara Nolan and that she was not the person the Australian solicitors were looking for. As a result of this conversation, Mr Ashley deposes that he is sure that the Catherine Wilson of 25 Hawthorn Road, Bolton‑Le‑Sands, Carnforth, Lancashire, is not the Catherine Wilson (nee Simmons) a daughter of Barbara Nolan.
Similarly, there is an affidavit of Ms Katrine Turoy‑Smith, a legal practitioner of Perth, who has the conduct of the plaintiff's case with Mr KG Sorenson. She deposed that using an identified Internet telephone data base she located the telephone number for Mrs Catherine Wilson of 15 Givendale Grove, York, in the United Kingdom, and on 11 March 2011 telephoned that number. According to Ms Turoy‑Smith, a lady answered the telephone, whereupon she inquired if that was Catherine Wilson and the lady answered, 'Yes.' Ms Turoy‑Smith then identified herself as calling from the offices of KG Sorenson Solicitors in Perth, Western Australia, and explained that her firm was searching for a Catherine Wilson, previously known as Catherine Simmons, in relation to the estate of Barbara Nolan. She explained that she had found the lady's details from searches which the Australian firm had conducted and believed that she might be the daughter of Barbara Nolan. Ms Turoy‑Smith explained to the lady that she had previously sent her correspondence about that matter but that this court had now directed that the firm should try to contact the lady by telephone to find out whether or not she was the daughter of Barbara Nolan or knew anything of her. According to Ms Turoy‑Smith, the lady identified herself as Catherine Wilson and replied with words to the effect, 'Wilson is my married name. I did receive your correspondence. Unfortunately, I am not the daughter you are searching for. I don't know anything about her.' Ms Turoy‑Smith thanked the lady for her information and ended the telephone call.
I am satisfied, therefore, that neither of the persons named Catherine Wilson located by the plaintiff's solicitors as living in the Leeds or Yorkshire area of the United Kingdom and possibly answering the description of the missing Catherine Simmons is a daughter of the deceased, Barbara Nolan.
There is no evidence before the court of the value of the balance of the estate awaiting distribution or the one‑fifth share to which Catherine Wilson is entitled, could she be found. However, in the hearing on 2 March counsel for the plaintiff disclosed that the net value of the estate at present was approximately $430,000 so that, consequently, a one‑fifth share is $86,000 or thereabouts.
Directions under s 66 of the Trustees Act - 'Benjamin orders'
The problems and uncertainties faced by a trustee desiring to distribute part or all of the trust estate where a beneficiary is missing, cannot be traced or may be dead are of long standing. In his well‑known paper 'Administration of Trust Estates in Western Australia in 1963' Mr GA Kennedy (as he then was) reviewed the changes then recently introduced by the Trustees Act 1962 (GA Kennedy, 'Administration of Trust Estates in Western Australia' (1963) 6 University of Western Australia Law Review 81) and, at 95, observed that:
[section] 6 sets out comprehensively, if not concisely, the method by which application can be made to the Court for an order granting leave to distribute trust property where there are missing beneficiaries.
Section 66 of the Trustees Act is quite extensive but needs to be set out in full. It provides:
66.Unknown beneficiaries, advertising for, distribution of shares of
(1)Where any property is held by a trustee and the property or any part thereof cannot be distributed because the trustee does not know ‑
(a)whether any person who is, or may be, entitled thereto is, or at any material date was, in existence; or
(b)whether all or any of the persons who are members of any class that is or may be entitled thereto are, or at any material date were, in existence; or
(c)whether any such person as is mentioned in paragraph (a) or (b) is alive or dead or where he is to be found,
the trustee may publish such advertisements (whether in the State or elsewhere) as are appropriate in the circumstances calling upon every such person and every person claiming through any such person to send in his claim within a time to be specified in the advertisements, being, in any case, not less than 2 months from the date on which the advertisement is published.
(2)Where the trustee is in doubt as to what advertisements should be published under this section, he may apply to the Court for directions in that regard.
(3)Where the trustee has received (whether as a result of advertisements or not) a claim that any person is a person to whom any advertisement made under this section relates, or any notice that any person may claim to be such a person, and the trustee is not satisfied that the claim is or would be valid, the trustee may serve upon the claimant or the person of whom the trustee has notice as aforesaid, a notice calling upon him, within a period of 3 months from the date of service of the notice, to take legal proceedings to enforce the claim, if he wishes to pursue it, and to prosecute the proceedings with all due diligence; and advising him that, if he fails to do so, his claim may be disregarded and application may be made to the Court without further notice for an order authorising the distribution of the property.
(4)Nothing in subsection (3) makes it necessary for the trustee to serve a notice therein mentioned on any person; and the Court may make an order under this section, whether or not such a notice has been served on any person, if it is satisfied that the information supplied to the trustee by that person or otherwise in the possession of the trustee indicates that the person is not one of the persons specified in the advertisements or is not likely to be one of those persons.
(5)Upon proof by affidavit of the circumstances, and of the inquiries that have been made, and of the results of the inquiries and advertisements, and of the claims of which the trustee has received notice, and of the notices that the trustee has given to claimants under subsection (3), and of the action (if any) that the claimants have taken to enforce their claims, the Court may order that the trustee be at liberty to distribute the property or part thereof, subject to such conditions as the Court may impose ‑
(a)as if every person and every member of any class of person specified in the order (being all or any of the persons specified in the advertisements) is not in existence or never existed or has died before a date or event specified in the order; and
(b)where as a consequence of the order it is not possible or practicable to determine whether or not any condition or requirement affecting a beneficial interest in the property or any part thereof has been complied with or fulfilled, as if that condition or requirement had or had not been complied with or fulfilled, as the Court may determine.
(6)In making any order under subsection (5), the Court may ‑
(a)disregard (without express reference thereto in the order) the claims of any persons who do not appear to the Court to be, or likely to be, any of the persons specified in the advertisements;
(b)disregard (without express reference thereto in the order) the claim of any person to whom the trustee has given notice under subsection (3) and who has failed to take legal proceedings to enforce the claim or to prosecute any such proceedings with all due diligence;
(c)exclude from the operation of the order any person to whom the trustee has not given notice under subsection (3) and who, in the opinion of the Court, may be one of the persons specified in the advertisements, or any person whom the Court considers should, for any reason, be excluded from the operation of the order;
(d)provide that the order shall not be acted on for such period or except on such conditions as may be specified in the order or that the effect of the order shall during a period so specified be advertised in such manner and form as may be specified in the order, or that the order be served upon such person or persons as are specified therein; and in the event of the Court exercising the jurisdiction conferred by this paragraph it may in the order direct that the order shall be of no effect in respect of any person specified therein in the event of that person instituting proceedings in the State to enforce his claim and serving the proceedings upon the trustee within such period as is specified in the order.
(7)The Court may make an order under this section notwithstanding that there has not been strict compliance with any directions as to advertisements previously given by the Court, or that an error has been made in any advertisement (whether or not any directions have previously been given by the Court) if the Court considers that the error would not be likely to have prejudiced or misled the persons to whom the advertisement relates.
(8)Where the Court makes an order under this section that the trustee may distribute any property or part thereof as if every person and every member of any class of persons specified in the order (not being a person expressly excluded from the operation of the order) is not in existence or never existed or has died before a date or event specified in the order, and the trustee distributes in accordance with the order, the trustee shall be exonerated from any further liability to any such person or to any member of any such class; but nothing in this section affects any remedy that any person may have against any person other than the trustee, including any right that he may have to follow the property and any money or property into which it is converted.
(9)The Court may make one or more orders under this section in respect of the same property.
(10)Any order made under this section may direct how the costs of the order and of advertising under or for the purposes of the order shall be borne.
(11)It shall not be necessary to serve notice of an application for an order under this section upon any person, unless the Court otherwise orders.
(12)Nothing in this section affects the right of the trustee (if he so wishes) to distribute under any other law or statutory provision or affects the protection thereby afforded when he makes distribution pursuant to any such law or provision.
The Western Australian section resembles the New Zealand legislation in s 76 of the Trustee Act 1956 (New Zealand) which was re‑enacted in 1956 following the revelation of problems with the previous New Zealand section by the New Zealand Court of Appeal in Re Sheridan (dec) [1959] NZLR 1069. The details of that controversy, and indeed a helpful historical analysis of the background of the remedies adopted by the courts for the distribution of funds of missing beneficiaries, both in equity, and pursuant to statutory regimes, is found in 'The Ascertainment of Missing Beneficiaries: The New Zealand Experience' by Dr GP Barton (1962) 5 University of Western Australia Law Review 257.
Formerly, the normal procedure was to apply for a 'Benjamin order' granting leave to distribute trust property upon a specified footing' ‑ In re Benjamin; Neville v Benjamin. [1902] 1 Ch 723. So, in Williams, Mortimer & Sunnucks, Executors, Administrators & Probate (1993) at 938 there is the following passage:
It may happen that distribution is held up because the representatives cannot be sure who is entitled. Thus a person's right to share in the estate may turn on the question whether another predeceased the testator, predeceased him without issue, and it may be uncertain on the facts whether this happened. In these circumstances, the representatives may apply to the court for a 'Benjamin' order ‑ In re Benjamin [1902] 1 Ch 723, that is, an order permitting them to distribute the estate on the footing that certain events have or have not happened. The effect of such an order is to relieve the representatives of liability in their capacity as representatives should the hypothesis on which they are to be permitted to distribute turn out to be wrong. Thus, where a beneficiary who was thought to have predeceased a testator subsequently appears, he will not be entitled to bring a claim against the representatives for his share of the estate. He may, however, be entitled to claim in equity against the beneficiaries who have been wrongly paid or perhaps bring a tracing action against the recipients of the share ‑ Re Diplock [1951] AC 251.
The learned authors of that text add that any such claim against wrongly paid beneficiaries will be statute barred after the applicable limitation period unless the beneficiaries were also the personal representatives. The learned authors proceed at 938 ‑ 939 to explain the foundation of the court's intervention:
The basis for the jurisdiction is simply that the court will be prepared in suitable circumstances to relieve a trustee of the consequences of a potential breach of trust. Various expressions have been used to describe the circumstances in which the jurisdiction will be exercised. It has been said, for example, that an order will be made where the proposed distribution reflects the practical probabilities of what has happened: Re Green's Will Trusts [1985] 3 All ER 455, 462, or is based on the probable inferences: Hansell v Spink [1943] Ch 396 at 399, or where there is satisfactory prima facie evidence of practical impossibility of proof of the facts or events in question: In re Gess [1942] Ch 37, 39, or where every reasonable step has been taken to trace the individuals in question and it was most improbable that any such individual would ever establish a claim: In re Lowe's Will Trusts [1973] 1 WLR 882, 887. Where there remains a theoretical possibility of beneficiaries appearing despite their long absence, the court will consider whether it is just that the enjoyment by the known beneficiaries and their apparent interests should be further postponed: Re Green's Will Trusts (supra), 462.
In cases where a possible beneficiary has not been heard of for many years and seems likely to have predeceased the testator, the application has many similarities to an application for a declaration that a person should be presumed to be dead: Chard v Chard [1956] P 259. The jurisdiction, however, is distinct (see discussion by Nourse J in Re Green's Will Trusts (supra)). Thus it is possible that a court would give leave to distribute on the footing that a person has died where it would not have been prepared to make a declaration of death. Further, the Benjamin jurisdiction is far more extensive. For example, leave can be given to distribute on the basis that a person died without issue and without having married or on a basis that all debts and liabilities have been ascertained: In re Gess (supra) or, where an original settlement has been lost, on the basis that the will trusts are those established by secondary evidence: Hansell v Spink (supra).
One of the measures referred to in the authorities which may be taken by a trustee when faced with the problem of distributing an estate where there is a missing beneficiary is to take out missing beneficiary insurance ‑ Re Evans(dec) [1999] 2 All ER 777. However, there has been no evidence in this as to whether such insurance is available or its likely cost.
The potential consequences of wrongly distributing a fund are referred to in Halsbury's Laws of England, vol 48 [854] where the learned authors observe that, as between the trustee and the person who is wrongly paid, the trustee under the law of restitution based on the principle of unjust enrichment has a right to recover payment if it was paid under a mistake, whether of fact or law, subject to the defences available in the law of restitution such as the defence of change of position: Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349. The ability to recover as a result of payments made by mistake whether in fact or law, subject to any change of position defence, is now firmly established in Australia: Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662 and David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 (see per Mason CJ, Deane, Toohey, Gaudron and McHugh JJ, 375 and per Brennan J at 393).
Distribution by the trustee of such funds, even if under the protection of an order of the court, will not eliminate all the rights of the true beneficiary if he or she should ever later appear and desire to pursue them. So, for example, as already noted, the beneficiary would have the right to follow any such assets: Re Gess, Gess v Royal Exchange Assurance [1942] Ch 37, subject to any statutory protections which might apply. Such an order will protect only the personal representative so that the beneficiary seeking to follow the assets into the hands of others may take such proceedings without pursuing or joining the personal representative: Clegg v Rowland (1866) LR 3 Eq 368; Hunter v Young (1879) 4 Ex D 256 CA; and Re Frewen, Frewen v Frewen (1889) 60 LT 953 and, generally, Halsbury's Laws of England (4th ed, vol 17(2)) [524].
The Benjamin order procedure has been followed and applied in Australia ‑ see Ford and Lee, Principles Of The Law Of Trusts (4th ed, vol 2) [16‑140] ‑ Re Holzberger's Trusts [1935] QWN 46; Re Phillott's Trusts [1940] QWN 23; Will of Walker (1943) 43 SR(NSW) 305; Re Watkinson [1952] VLR 123; Re Dolling [1956] VLR 535; Public Trustee v Solah [1999] NSWSC 660 and compare the English decisions in Re Taylor's Estate [1969] 2 Ch 245; Re Green's Will Trusts [1985] 3 All ER 445.
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: Re Reynolds Trusts (No 2) [1942] QWN 40.
In both Re Hickey (dec); Dwyer v Hickey [1925] VLR 270 and Re Dolling declarations were made authorising the trustee to distribute on the footing that the missing beneficiary had died without a formal declaration of presumption of death being made.
In this present case, I do not consider that the evidence justifies a declaration being made to the effect that Catherine Simmons born on 4 August 1946, daughter of Barbara Nolan, who married in England on 29 March 1969, should be presumed to have died. It is, of course, true that the members of her family, including her deceased mother, have had no word of her for much longer than seven years, if at all. It seems that the deceased, Barbara Nolan, may have had some intermittent communications with her daughter after the deceased's migration to Australia in early 1965 but it seems that nothing was heard of Catherine Wilson nee Simmons from, at the latest, the plaintiff's visit to England when she made unsuccessful attempts to search for her in 1996. The plaintiff then did not have any information about the date of Catherine Simmons' birth, nor was she aware of the latter's marriage until it was discovered by her solicitors on inquiry quite recently. It simply cannot be said that the failure of Catherine Wilson nee Simmons to communicate with any members of her Australian family, even her mother, over the past 15 years or more gives rise to an inference that she is dead. Rather, the inference to be drawn is that the ties between Catherine Wilson nee Simmons and her Australian family were only tenuous after 1965 and then probably dissolved almost entirely by 1996 or before.
There is simply no reason, in these circumstances, to expect that Catherine Wilson nee Simmons would maintain contact with the members of her Australian family and, because of that, the absence of such contact does not give rise to any persuasive influence that she has probably died by now: Re Benjamin, Neville v Benjamin [1902] 1 Ch 723; Chard v Chard(otherwise Northcott) [1956] P 259; and Bradshaw v Bradshaw [1956] P 274. This is one of those occasions where the strength of any presumption which may apply from the lack of communication with the missing beneficiary is insufficient to discharge the onus of proof that she is now probably dead.
In case it be thought that if Catherine Wilson nee Simmons may have died or be presumed to be dead because of the absence of any communications from her over a long time, it is necessary to point out that such a conclusion (not that I am prepared to reach it in this case) would not necessarily dispose of the question of the entitlement to the remaining one‑fifth share of the undistributed share of the estate of Barbara Nolan (dec). In the event that Catherine Wilson nee Simmons predeceased her mother, leaving issue, then her issue so surviving (or their surviving issue, if they were to be deceased) would be divided equally between them to the share of their deceased parent ‑ Administration Act s 14. On the other hand, if Catherine Wilson nee Simmons had survived her late mother but died later, then her one-fifth share of the undistributed estate of her late mother would form part of her estate distributable in accordance with her will, if any, or if she died intestate, according to the laws of intestate distribution of her domicile at the time of her death: Pipon v Pipon (1744) Amb 25, 799; 27 ER 14, 507; and Coleman v Shang [1961] AC 481, 494 PC. It is for this reason that the advertisement calling for claims should not be restricted to claims by Catherine Wilson nee Simmons but should extend, in the case of her death, to any person claiming through her, such as her executor or her administrator or children.
Consequently, this case provides an example of the category mentioned where there is a possibility of the beneficiary appearing despite a long absence. The case addressing that possibility, Re Green's Will Trusts, arose from factual circumstances very different from the present. In Green's case, the late Mrs Green, who died in 1976, had left the whole of her large estate to her only child, a son, who in January 1943, then aged 20 years, was a tail gunner in a Royal Air Force bomber which took off from Yorkshire bound for a raid on Berlin. Neither the plane nor any of its seven member crew was ever seen again. Yet Mrs Green, for the whole of her remaining life, kept up hope, against all other indications, that somehow her son had survived and would return. She stipulated in her will that her estate was to be kept on trust until the year 2020 in anticipation of her son, who at that time would be 98 years if he were alive, appearing and receiving his inheritance. If, however, he did not appear by 2020, the whole of the estate was to go to certain nominated charities. The charities brought an application for a Benjamin order that the trustee should distribute the estate on the footing that the son had died as a bachelor before his mother's death. One of the arguments for the family next-of-kin was that no Benjamin order should then be made or, if made, should not take effect until the period limited by the will for the possible appearance of the son had expired. However, Nourse J rejected those submissions after addressing the question of whether in all the circumstances the trustees ought be allowed to distribute, and the beneficiaries to enjoy, their apparent interests now rather than later. His Lordship said (at 462):
The true view is that a Re Benjamin order does not vary or destroy beneficial interests. It merely enables trust property to be distributed in accordance with the practical probabilities, and it must be open to the court to take a view of those probabilities entirely different from that entertained by the testator.
In this case, there is no relevant view of any testator. The deceased, Barbara Nolan, died intestate and there is, therefore, no testamentary or other evidence of what her intentions, if any, were with respect to any disposition of property in the event of her death in favour of her eldest child, Catherine Wilson nee Simmons. Nevertheless, s 14 of the Administration Act provides, in the circumstances which have happened, that Ms Wilson nee Simmons, if she survived her mother, has the right to participate equally as one of the five children in the net estate. I have no power to vary or to terminate that entitlement and have not been asked to do so.
Trustees Act s 66 - Procedure
There is very little authority on the use and application of s 66 of the Trustees Act in this jurisdiction. The only case of its application cited is The Public Trustee as Administrator of the Estate of Harold Beaver (dec) v MacGregor [2001] WASC 222, a decision of Miller J. The evidence in that case allowed his Honour to reach a firm conclusion that the deceased's mother and father predeceased him so that the estate of the deceased should pass to his widow as next-of-kin. There was no occasion in that case to examine what, if any, orders should be made on the footing that there was a missing beneficiary who could not be located but who could not be presumed to have died.
The practice to be followed on an application under s 66 for directions in relation to the distribution of the shares of unknown beneficiaries, or for advertising for claims, will depend upon the nature of the circumstances which give rise to the application; where and what type of advertising the circumstances may warrant; and the significance of the responses, if any, to the advertising conducted.
As s 66(1) recognises, the decision of whether or not to publish advertisements may, in the first place, be taken by the trustee alone, but s 66(2) allows the trustee in cases of doubt to apply to the court for directions as to what advertisements should be published. The advertisements envisaged are advertisements calling upon every person who is, or may be, entitled in distribution to the estate to send in his claim within a time to be specified in the advertisements, being, in any case, not less than two months from the date on which the advertisement is published.
Where the trustee receives a claim that a person is entitled to distribution, whether as the result of the advertisement or not, and the trustee is not satisfied that the claim is valid, the trustee may serve upon the claimant or the person giving notice a notice calling upon that person within three months to take legal proceedings to enforce the claim if he or she wishes to pursue it and to prosecute those proceedings with all due diligence, advising that failure to do so will result in the claim being disregarded. However, by s 66(4) it may not be essential for the trustee to give such notice of a disputed claim if the trustee is satisfied that, based on the information from the claimant, or from other information in the trustee's possession, the claimant is not one of the persons specified in the advertisements or is not likely to be one of those persons. This provision in s 66(4) is modelled on the New Zealand section as amended to overcome the difficulties revealed by the decision In re Sheridan, cited earlier.
Under s 66(5), upon proof of the circumstances and of the inquiries which have been made, and of the results of the inquiries and advertisements and of any claims for which the trustee has received notice, and of notices given by the trustee to claimants, and of any action which the claimants might have taken to enforce the claims, the court may order that the trustee be at liberty to distribute the property or part thereof subject to such conditions as the court may impose. Such an order for distribution may allow distribution as if every person and every member of any class of person specified in the order is not in existence or never existed or has died before a date or event specified in the order and, where it is not possible or practicable to determine whether or not any condition or requirement affecting a beneficial interest in the property or part of it has been complied with, as if that condition or requirement had or had not been complied with or fulfilled, as the court may determine.
Such an order may disregard the claims of any persons who do not appear to the court to be, or be likely to be, any of the persons specified in the advertisements, or the claim of any person to whom the trustee has given notice under s 66(3) and who has failed to take proceedings to enforce the claim or to prosecute it with due diligence; or any person to whom the trustee has not given notice under s 66(3) and who, in the opinion of the court, may be one of the persons specified in the advertisements, or any person whom the court considers should for any reason be excluded from the operation of the order: s 66(6).
Any such order may provide that it shall not be acted upon for such period or except on such conditions as may be specified in the order, or that the effect of the order shall, during a specified period, be advertised in such manner and form as may be specified in the order, or that the order be served upon such person or persons as are specified therein. In the event that the court exercises this power conferred by s 66(6)(d), the court may also direct that the order shall be of no effect in respect of any person specified therein in the event of that person instituting proceedings in the State to enforce his or her claim and serving the proceedings upon the trustee within such period as is specified in the order.
Section 66(7) allows the court to make an order notwithstanding the absence of strict compliance with directions or other errors.
It is important again to note that nothing in any such order as made will affect any remedy which any person may have against another person other than the trustee, including any right that person may have to follow the property or any money or property into which it has been converted: s 67(8).
The use and potential significance of s 66(12) cannot, in my respectful view, be better described than by Dr GP Barton in his article already cited. He wrote at 287:
As a final gesture to the past the section expressly provides that nothing therein shall prejudice the right of a trustee to distribute, if he so desires, under any other law or statutory provision. With such a complete and comprehensive code at hand what trustee would wish to distribute under any other law? The section sounds the death knell of the old Chancery practice of the administration of estates. Few will mourn its passing.
Dr Barton's article identifies an important but inescapable dilemma in the law and practice relating to the distribution of a fund to which a missing beneficiary who cannot be found has a claim. As he writes, at 263, the mere advertisement for claims, and even the lack of response to advertisements published, adds nothing positive to the knowledge of the person or representative who is trustee of the fund. The authorities recognise that there may be a multitude of reasons why such an advertisement may not come to the notice of a person with a just claim, thus giving rise to the question of why advertise at all. The answer is that the procedure is designed to give assistance to personal representatives or trustees and to provide a measure of convenience and reassurance in an administration, but despite the peremptory language of the advertisement and the implied threat that a claim will be disregarded in the absence of a response, Dr Barton observes of the procedure, 'that its bark is worse than its bite', citing the following passage in Harrison v Kirk [1904] AC 1, 6 (Lord Davey):
[I]t has long been settled that the language so used was in terrorem only, and that the effect of it was merely this, and nothing more: that any creditor [sic or other claimant] who did not come in and prove his debt before the day fixed ran the risk of some of the assets being administered and disposed of by the Court [ie, in an administration action] in payment of other creditors …
As the author of the article himself writes, 273:
Any tardy claimant still retained the right, usually on payment of costs or on other terms, to claim an interest in any funds that might still be in Court, or to commence proceedings against the persons among whom distribution had been made, David v Frowd (1833) 1 My & K 200; 39 ER 657, unless he had been guilty of wilful default: Mohan v Broughton [1899] P 211; Perpetual Trustee Co Ltd v Permanent Trustee Co of NSW Ltd (1941) 41 SR (NSW) 264.
Efforts to trace missing beneficiary
These provisions reveal that the course which has been taken by the plaintiff in these proceedings so far does not amount to advertising in the form contemplated by s 66(1). As already stated, the form of the advertisement contemplated by the subsection calls for claims to be made by any persons having or who may be entitled to a claim of distribution of the estate to make such a claim within a period of not less than two months from when the advertisement is published. A typical form of advertisement authorised by the Court of Chancery or of the Supreme Court of New Zealand on applications for Benjamin orders is as follows:
Pursuant to a decree or order of the High Court of Chancery made in the matter of the estate of … the persons claiming to be next of kin to …, are by their solicitors, on or before … to come in and prove their claims at the Chambers of the … Court … or in default thereof they will be peremptorily excluded from the benefit of the said decree or order.
See 2 Smith's Chancery Practice (7th ed, 1862) at 307 and 1856 New Zealand Gazette 66, 84, 274, as cited in 'The Ascertainment of Missing Beneficiaries: The New Zealand Experience' by Dr GP Barton (supra) at 262.
The advertisements published on behalf of the plaintiff in the newspaper in Yorkshire did not call for claims but merely inquired concerning information regarding the missing Catherine Wilson nee Simmons. The advertisements did not invite claims or specify that a claimant should lodge a claim at the Supreme Court in Perth or that failure to do so may result in any claim being disregarded or excluded. Nor was any time limit for making a response specified.
In the circumstances of this case, therefore, I consider that a further advertisement or advertisements in orthodox form adapted to the circumstances of this case should be published and that the form of the advertisements and the choice of the newspaper or other medium for the publication should be settled by a Registrar of the court upon application made in that respect. It seems that there is a case to be made for advertising on more than one occasion and in more than one newspaper. At least two advertisements about two weeks apart would seem to be called for in case a claimant might be away on vacation or may happen to be ill. Similarly, the choice of newspaper should involve consideration being given to a national daily newspaper published in the United Kingdom and to a prominent local newspaper circulating in the Yorkshire region. I hesitate at this point to make any firm directions or stipulations in this regard because I consider that it should be a matter for a Registrar to give directions after evidence has been placed before the court as to the potential choice of newspapers or other media that might be utilised for this purpose, and the nature, extent, and frequency of their circulation in the Yorkshire district and in the United Kingdom generally.
Because so little is known about the missing Catherine Wilson nee Simmons, it would seem to be desirable that the newspaper advertisement should include reference to her maiden name, her married name, and identify the date and place of the known marriage and the name of her husband. By this means, any readers of the advertisement who may know the husband or remember the wedding may be prompted to respond. Such responses from third parties can be encouraged by adding to the terms of the advertisement that not only the missing person but anybody knowing of her whereabouts or having any information concerning her should respond. In these days of easy, rapid, electronic communication, methods of response by telephone, facsimile, email or other electronic methods of communication should be offered. I also consider that a copy of the advertisement, in its settled form, should be sent to the parish priest at the church of Haworth in Yorkshire where the marriage took place under a suitably drafted covering letter requesting him to notify the plaintiff's solicitors of any knowledge or means of communication which may be known that may assist in locating the missing daughter of the deceased. Similarly, a copy of the advertisement and a covering letter should be sent to the address at the time of the marriage.
Section 66(1) calls for a minimum time of response to the advertisement being set as two months. Having regard to the circumstances of this case, I consider that the minimum period should be three months from the date of the last advertisement. As s 66(6)(d) recognises that it is possible for the court to make a conditional order or orders and/or to order that any such orders should not be acted upon for a specified period, I consider that in this case I should utilise these powers to direct that advertising in the manner and form which I have described should be conducted and that the proposed order of the court should not take effect until, and then be conditional upon, such further or other orders as the court might make after a further hearing when the results of these additional inquiries and advertising and any claim are put before the court by affidavit or affidavits on behalf of the plaintiff, any claimant or others.
The order should also provide that in the event of no response identifying the deceased's missing daughter or of any claim being made by or on her behalf within three months of the last of the advertisements ordered, then the plaintiff may proceed to distribute the whole of the balance of the assets of the estate of the deceased on the footing that Catherine Wilson nee Simmons, born 4 August 1946, lawful daughter of the deceased, cannot be found and that no information is available despite due search and inquiry of whether she predeceased the late Barbara Nolan or whether she survived the said Barbara Nolan and died at some unknown time subsequently or, in either event, whether she left any issue her surviving and that any claims of the said Catherine Wilson nee Simmons or any of her children or any other person claiming through them or any of them be disregarded.
The order should also note that although ultimate distribution, if it were to occur, in compliance with this order may protect the plaintiff from any claims made against her in her capacity as trustee, it would not prevent the said Catherine Wilson nee Simmons, or anyone claiming through her, to follow the trust property if that person were able to do so in the future.
In the event of a claim being advanced by Ms Wilson nee Simmons, the plaintiff shall consider that claim and apply to the court for directions as to the discharge of the existing order in the event that the claim is admitted. If the claim is disputed, distribution should be delayed to provide for an opportunity for a resolution of the claim in accordance with s 66(6) or otherwise as the court may direct.
Conclusion
I am, therefore, prepared to make a conditional order but one which shall not take effect unless and until confirmed by a subsequent order made on an application by the plaintiff to the court showing the results of the advertising and other inquiries now to be ordered, and of any claims or inquiries made or received as a result of them or otherwise. The form of the advertisement and the choice of the media in which it is to be published shall be settled by a Registrar on application for which there is liberty to apply. Otherwise, these proceedings will be adjourned.
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