Public Trustee of Queensland v Ferris
[2024] QSC 103
•9 May 2024
SUPREME COURT OF QUEENSLAND
CITATION:
Public Trustee of Queensland v Ferris & Ors [2024] QSC 103
PARTIES:
PUBLIC TRUSTEE OF QUEENSLAND as administrator of the estate of Albin Schmuck, deceased
(applicant)v
LISA ANN FERRIS
(respondent)
ROBERT WERNER RIEMANN
(second respondent)
ALBIN THOMAS RIEMANN
(second respondent)
PAUL ANTHONY RIEMANN
(second respondent)
INGRID RIEMANN
(second respondent)FILE NO:
3925 of 2024
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court of Queensland at Brisbane
DELIVERED ON:
9 May 2024
DELIVERED AT:
Brisbane, ex tempore
HEARING DATE:
9 May 2024
JUDGE:
Treston J
ORDER:
1. The Applicant is justified in:
a. distributing the estate of Albin Schmuck, deceased to Lisa Ann Ferris as executor of the estate of Herbert Adolph Petschauer, deceased on the footing that Herbert Adolph Petschauer was the closest next of kin of Albin Schmuck, deceased who survived him;
b. paying the deceased’s estate to Lisa Ann Ferris as executor of the estate of Herbert Adolph Petschauer, deceased by depositing the same into an account nominated by the Public Trustee;
2. The costs of these proceedings of the Applicant and of the litigation guardian for Albin Thomas Riemann be paid from the estate of Albin Schmuck, deceased on the indemnity basis.
CATCHWORDS:
SUCCESSION – INTESTACY AND DISTRIBUTION ON INTESTACY – where Albin Schmuck was born in 1923 and died intestate and without a spouse or issue in 2013 – where the applicant was granted an order to administer the deceased’s estate in 2020 – where it is likely that both his parents and grandparents predeceased him – where the order of priority for distribution of his estate on intestacy is to his siblings – where the deceased did have one known sibling, who died on 20 May 2001 – where the sibling was adopted in 1939, aged 18 years – where, according to Slovenian law, the adoption created only a kinship bond and not a kinship relationship between Adolph and his adoptive parent, meaning that the adoption did not affect the right of succession which the adoptee had in respect of his biological parents – where the applicant submits that the sibling of the deceased was a sibling of the deceased for the purposes of the distribution of the deceased’s estate on intestacy – whether a Benjamin Order ought to be made
Adoption Act 1934 (Qld)
Adoption Act 1964 (Qld), s 38
Adoption Act 2009 (Qld), s 214, s 216, s 331
Succession Act 1981 (Qld), s 6, a 6(1), s 35, s 37, Sch 2 Pt 2 item 3Application of NSW Trustee & Guardian; Estate of Vaughn [2019] NSWSC 850, cited
COUNSEL: RT Whiteford for the applicant
KW Dalziel (solicitor) for the second respondents
SOLICITORS: The Public Trustee for the applicant
The Estate Lawyers for the second respondents
This is an application by the Public Trustee, applying under s 6 of the Succession Act 1981 (Qld) (‘Succession Act’) for a Benjamin order, that is, an order that it is justified in distributing the estate to persons who, on the available information, appear to be entitled to it. It arises in circumstances where the Public Trustee has been unable to locate all the possible beneficiaries of an intestate estate.
The Court has power under s 6(1) of the Succession Act to make a Benjamin order, and a Benjamin order assists the finalisation of the administration of the estate, whilst not determining beneficiaries rights. In Application of NSW Trustee & Guardian; Estate of Vaughn, Henry J said:[1]
‘A “Benjamin order” is an order made by the Court that permits an executor to distribute the deceased’s estate on a particular factual basis notwithstanding there is some uncertainty about a factual matter relevant to the distribution, such as the existence of particular beneficiaries…A Benjamin order does not amount to a positive declaration of rights but enables the trust property to be distributed by an executor in accordance with the “practical probabilities” reflecting inferences from the proved facts.’ (citations omitted)
[1][2019] NSWSC 850 at [11] and [12].
The background to this case is that Albin Schmuck, the deceased, was born in Slovenia on 6 April 1923 and died in Nambour sometime between 14 September and 18 September 2013. Albin died intestate and without a spouse or issue. On 13 February 2020, the Public Trustee was granted an order to administer his estate valued at about $385,000. The evidence demonstrates that the deceased’s mother Aloisia Schmuck was born in 1895.
As appears from the deceased’s death certificate, the deceased was an illegitimate child, the father not able to be identified in his birth certificate. Aloisia Schmuck had one other child, Adolph, who was also illegitimate. He subsequently took the name Adolph Petschauer or Adolph Schmuck/Petschauer.
Despite inquiries, the Public Trustee has been unable to obtain a death certificate for Alouisa Schmuck; however, given she was born in 1895, it is certainly likely she predeceased the deceased, who died in 2013.
An online obituary search for Adolph Petschauer revealed his wife’s name was Vera. She has stated that the deceased’s father was Josef Petschauer, and the Public Trustee has not been able to obtain any information corroborating that assertion and has been unable to ascertain on what basis she believed that Josef Petschauer was the deceased’s father. If Josef Petschauer was the deceased’s father, then he died on 19 December 1974 in Canada as appears from his death certificate. The Public Trustee otherwise has not been able to obtain any other evidence or information about who the deceased’s father might have been. Therefore, only his maternal family can be traced.
As the deceased has no known spouse or issue, and because it is likely that both his parents and grandparents predeceased him, the order of priority for distribution of his estate on intestacy is to his siblings with any surviving children of siblings who predeceased him taking the share which their parent would have taken had that parent survived the deceased, and if no siblings, then to his aunts and uncles with any surviving children of aunts and uncles who predeceased him taking the share which their parent would have taken had they survived the deceased. That is the circumstance that arises under ss 35, 37 and schedule 2, part 2, item 3 of the Succession Act.
The deceased did have one known sibling, Adolph Schmuck, who was born in Slovenia on the 6th of April 1921, and who died on 20 May 2001. Adolph was in fact adopted by Josef Petschauer by an order of the Slovenian Court on 22 September 1939 at age 18 years. By ss 214 and 216 of the Adoption Act 2009 (Qld) (‘2009 Act’), which was the statute in force when the deceased died, it provided that for the purposes of succession to property, the effect of a final order of adoption is that the adopted child ceases to be the child of the birth parent and becomes a child of the adoptive parents. An overseas adoption order has the same effect as a Queensland final order for adoption if it gave the adoptive parents rights superior to the birth parents to custody of the child and placed the adoptive parents generally in the position of a parent of the child.
The Public Trustee obtained a report from a German genealogist Barbara Möstl, which report is dated the 8th of February 2021, and in addition, an advice dated 27 October 2023 from Jure Lukančič, a Slovenian lawyer, about the effect of adoption under Slovenian Law, and an email from Mr Lukančič dated 29 January 2024 elaborating, then, on his advice. As appears from that material, as I have already set out, the deceased had one sibling Adolph adopted in Slovenia and Adolph had one child Herbert, who survived the deceased, but died in Canada on the 1st of September 2019.
Herbert was survived by his wife Lisa Ann Ferris. The evidence demonstrates Ms Ferris contacted the Public Trustee in December 2023 and provided a copy of Herbert’s will of 14 September 2011. Lisa Ferris is the sole executor and beneficiary of Herbert’s estate and has not obtained probate of his estate.
When Adolph was adopted in 1939, the Adoption Act 1934 (Qld) (‘1934 Act’) was in force in Queensland. That statute contained no provision for the recognition of overseas adoptions. The 1934 Act was repealed and replaced by the Adoption Act 1964 (Qld) (‘1964 Act’). Section 38(1) of the 1964 Act provided that:
‘The adoption of a person, whether before or after the commencement of this Act, in a country outside the Commonwealth, being an adoption to which this section applies, has the same effect as an adoption order under this Act.’
Section 38(2) of the 1964 Act provided that s 38 applied to an overseas adoption if, first, the adoption was effective according to the law of the country where it occurred; second, at the time the steps for that adoption commenced, the adoptive parent was a resident or domiciled in that country; and, third, under the law of that country, the adoption gave the adoptive parent rights superior to the biological parent to custody of the adopted child and placed the adoptive parents generally in the position of a parent of the adopted child.
The 1964 Act was repealed by the 2009 Act. Section 331 of the 2009 Act provides that an adoption order in force under the 1964 Act continues to have effect as if it were a final order under the 2009 Act. Sections 214 and 216 of the 2009 Act, which were in force when the deceased died, provided that for all purposes, including intestate succession, the effect of a final adoption order is that the adopted child ceases to be the child of the birth parents and becomes the child of the adoptive parents.
The advice of Mr Lukančič demonstrates that, under Slovenian Law, the adoption made in respect of Adolph Schmuck/Petschauer created only a kinship bond and not a kinship relationship between Adolph and his adoptive parent Josef. While the adoptive parent was entitled to exercise parental responsibility over the adoptee, the adoption did not affect the rights of the adoptee in relation to his biological parents, and in particular, did not affect the right of succession which the adoptee had in respect of his biological parents.
Accordingly, the Public Trustee formed the views that the Slovenian adoption order did not have the same effect as an adoption order under the Queensland legislation; that Adolph Schmuck-Petschauer remained a sibling of the deceased for the purposes of the intestacy distribution under the Succession Act; that as Herbert Adolph-Petschauer was the only child of Adolph and survived the deceased, he was entitled to the deceased’s estate on intestacy; and, finally, that the deceased’s estate should be paid to Lisa Ferris as the executor of the estate of Herbert Adolph-Petschauer.
Accordingly, it is submitted by Mr Whiteford, and I accept, that the Slovenian Adoption Law did not have the effect of a final order of adoption in Queensland, and I accept that Adolph Schmuck-Petschauer was a sibling of the deceased for the purposes of the distribution of the deceased’s estate on intestacy. In the circumstances, the Public Trustee submits as its primary position that on the deceased’s death, as his closest next of kin, Herbert Petschauer was solely entitled to the deceased’s estate on intestacy, and the share to which Herbert Petschauer was entitled should be paid to his executor Lisa Ferris. Whilst the Public Trustee quite properly put the alternative scenario in the circumstances that the Court might have determined that Herbert Petschauer was not entitled to the deceased’s estate, I am satisfied that the primary submission is correct and the orders ought to be made in the form provided by the Public Trustee.
I should say, for completeness, that Mr Dalziel, solicitor, appeared on behalf of the litigation guardian for one of the other possible beneficiaries on the maternal side in the event that I found against the primary submission. At the conclusion of the hearing, Mr Dalziel advised the Court that having considered Mr Whiteford’s most careful and meticulous analysis of the law and the facts in relation to this case, that he was also satisfied that the primary position adopted by the Public Trustee was, in fact, the correct conclusion and sought only some orders for costs to properly reimburse his client for giving its sensible consideration to the proper way in which this estate ought to be distributed.
In the circumstances, I am also satisfied that the costs orders which have been proposed are the appropriate orders to make in the circumstances.
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