Nolan As Administratrix of the Estate Of Barbara Nolan, deceased v Nolan

The case involves Nolan as the administratrix of the estate of Barbara Nolan, deceased, and Nolan, a party who has been identified as a potential beneficiary. The dispute concerns the administration of the estate under the Trustees Act 1962 (WA) and the circumstances surrounding the distribution of the estate, particularly in relation to a missing beneficiary. The matter was heard in the Supreme Court of Western Australia.

The legal issues before the court included whether the court should presume the death of a missing beneficiary under section 66(5) of the Trustees Act 1962 (WA), and what factors should be considered in making such a presumption. Additionally, the court needed to determine the appropriate form of relief, including whether Benjamin orders should be made and whether further advertising should be conducted to locate the missing beneficiary.

The court found that, in the absence of any evidence of the whereabouts or status of the missing beneficiary, the presumption of death could be considered. The court outlined several factors to be taken into account, including the length of time the beneficiary has been missing, the circumstances of their disappearance, and any evidence of their death or continued existence. The court concluded that while it was not appropriate to make a Benjamin order in the absence of evidence, further advertising to locate the beneficiary should be approved by the court. The court ordered that further advertising be undertaken, subject to its approval, to assist in locating the missing beneficiary and determining the appropriate course of action for the estate's distribution.

The court's final orders included the approval of further advertising to be undertaken with the aim of locating the missing beneficiary. The court also directed that any further steps to be taken in the administration of the estate would be subject to its further orders. This decision provides guidance on the application of the presumption of death in the context of estate administration and the appropriate steps to take when a beneficiary is missing.