Public Trustee v Anita Jane Morrison as administrator of the estate of Marlene Gable Morrison
[2025] WASC 159
•3 APRIL 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: PUBLIC TRUSTEE -v- ANITA JANE MORRISON as administrator of the estate of MARLENE GABLE MORRISON [2025] WASC 159
CORAM: FORRESTER J
HEARD: 3 APRIL 2025
DELIVERED : 3 APRIL 2025
FILE NO/S: CIV 2235 of 2024
BETWEEN: PUBLIC TRUSTEE
Plaintiff
AND
ANITA JANE MORRISON as administrator of the estate of MARLENE GABLE MORRISON
First Defendant
JANINE LUCY MORRISON
Second Defendant
SAMUEL [Redacted]
Third Defendant
Catchwords:
Trustees Act 1962 (WA) - Wills - Application for declaration that plaintiff entitled to distribute monies held on trust for one person to another
Legislation:
Trustees Act 1962 (WA)
Result:
Application granted
Category: B
Representation:
Counsel:
| Plaintiff | : | D Van Kempen |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Public Trustee |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
Cases referred to in decision:
Bickford v Benson [2015] WASC 161
David Enzo Giovanetti as administrator of the estate of Mark Enrico Giovanetti -v- Giovanetti [2023] WASC 201
Nolan v Nolan [2011] WASC 224
Re Application by Little (Estate of Bruce Frederick Little) [2023] NSWSC 402
FORRESTER J:
(This judgment was delivered extemporaneously and has been edited from the transcript to correct matters of grammar and formatting, and to add headings and full citations.)
Introduction
This is a case of a missing beneficiary of the estate of the late Marlene Gable Morrison, who died intestate on 3 July 2016.
Without meaning any disrespect to the people referred to in this matter, after identifying them initially by their full name, I will refer to them by their first name only.
At the time of her death, Marlene was not married and not in a de facto relationship.
Letters of Administration were granted to Anita Jane Morrison on 15 February 2018.
A portion of Marlene's estate was to be distributed to her daughter Janine Lucy Morrison. However, Janine could not be found.
On 18 December 2018, Anita and the Public Trustee executed a deed which provided that the Public Trustee would hold Janine's share on trust until Janine came forward to claim it, or until Anita obtained an order from the Supreme Court permitting distribution.
Application
By originating summons filed on 21 October 2024, amended to proceed as if commenced by ex parte motion, the Public Trustee has applied for orders:
(a)pursuant to s 66(5) of the Trustees Act 1962 (WA) (Act), for a declaration that the plaintiff may distribute the portion of the estate of Marlene Gable Morrison due to Janine Lucy Morrison to Samuel [Redacted] as if Janine Lucy Morrison predeceased Marlene Gable Morrison; and
(b)pursuant to s 108 of the Act and the inherent jurisdiction of this court, the plaintiff's costs of and associated with the application be paid out of the second defendant's share of the estate on a solicitor‑client basis.
For the reasons that follow, I will make the orders sought.
Applicable Law
Trustees Act 1962 (WA)
Section 66 of the Act relevantly provides:
(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.
…
(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;
…
(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.
The legal principles to be applied in a case such as this were summarised by Acting Master McDonald in David Enzo Giovanetti as administrator of the estate of Mark Enrico Giovanetti and Giovanetti.[1]
[1] David Enzo Giovanetti as administrator of the estate of Mark Enrico Giovanetti -v- Giovanetti [2023] WASC 201 [11] ‑ [13]. See also Nolan v Nolan [2011] WASC 224 [24] ‑ [34] and Bickford v Benson [2015] WASC 161 [13] ‑ [14].
I respectfully adopt those principles without repeating them. It is sufficient to say that all that is necessary for an order such as that sought here, known as a Benjamin order, is that the court is satisfied that it is probable that the persons entitled under the trust have been ascertained and that no reasonable further inquiries could be made which would improve the state of the evidence.[2]
[2] Re Application by Little (Estate of Bruce Frederick Little) [2023] NSWSC 402 [33].
Section 108 of the Act provides that in the ordinary course, the costs of the inquiries to ascertain the existence of a person entitled to any legacy money or distributive share in the property is to be borne by and paid out of the legacy money or distributive share in the property owing to the person in respect of whom the inquiries were made.
Evidence relied upon
In support of the application, the Public Trustee relies on the affidavits of:
(a)Sean William Conlin, sworn 21 October 2024;
(b)Lucy Brae Ingram, sworn 14 November 2024;
(c)Samuel [Redacted], sworn 6 December 2024;
(d)Rhiarne Bruce, deposed 9 January 2025; and
(e)James Henare Blake, sworn 26 February 2025.
Factual background
The following relevant factual background is not in dispute and is derived from the affidavits filed in support of the application.
Marlene died intestate on 3 July 2016 in Kalgoorlie, Western Australia, and at the time of her death had no spouse or de facto partner.
Marlene had seven children. The value of her estate was $97,353.55, with each of Marlene's children entitled to an equal share, being $13,907.65.
Anita distributed Marlene's estate accordingly, save for the shares due to two of Marlene's children, Lynette and Janine.
Lynette had predeceased Marlene, leaving four children. Anita distributed Lynette's share of Marlene's estate in equal shares to Lynette's children.
Janine was unable to be located by Anita, who last spoke to Janine in 1983 when Janine was 13 years old.
As I have already indicated, on 18 December 2018, Anita and the Public Trustee executed a deed which provided that the Public Trustee would hold Janine's share on trust until Janine came forward to claim it or until Anita obtained an order from the Supreme Court permitting distribution.
As of 9 October 2024, the Public Trustee held $11,196.03 on trust for Janine. That amount is now $2,273.72 after a number of legal fees and disbursements have been deducted.
The Public Trustee has made extensive efforts to contact Janine, including:
(a)in 2019, engaging the probate genealogy firm, Worthington Clark, which:
(i)searched for a current residential address across various databases and accessible information;
(ii)contacted the 'Western Australian Correctional Facility', which confirmed that Janine was not incarcerated in Western Australia;
(iii)searched for a social media page;
(iv)searched for a death in the records held in cemeteries in Western Australia;
(v)contacted a wide range of community centres and businesses in Meekatharra, which is the last place Janine was sighted, and Geraldton, Northampton, Port Hedland, Ngaanyatjarra Lands Communities and Perth;
(vi)requested a death record search by the Registrar of Births, Deaths and Marriages; and
(vii)requested a marriage search by the Registrar of Births, Deaths and Marriages
all of which were unsuccessful in ascertaining Janine's current whereabouts or status;
(b)on 9 October 2020, the Public Trustee contacted Anita's former solicitors who confirmed they had no further contact with Anita concerning Janine or any other member of the Morrison family since 2018;
(c)on 2 August 2022, the Public Trustee contacted the WA Police who confirmed that Janine was not known to the officers at the Kalgoorlie or Meekatharra Police Stations. Next, on 4 August 2022, the Public Trustee contacted Services Australia to inquire whether it could forward a letter to Janine if her whereabouts were known to it. Services Australia declined the request;
(d)on 4 August 2022, contacted the Northern Territory Police to inquire whether it could forward a letter to Janine if her whereabouts was known to them. Northern Territory Police did not respond;
(e)on 21 February 2023, contacted Native Title Services Goldfields (NTSG) to inquire whether it could forward a letter to Janine if her whereabouts was known to them. NTSG advised it was unable to assist;
(f)on 23 February 2023, contacted Mission Australia, Meekatharra to inquire whether Janine was known to Mission Australia. An employee of Mission Australia advised that, despite having lived in Meekatharra her whole life, she had never encountered Janine;
(g)on 6 March 2024, published a notice in the North West Telegraph Newspaper, calling for Janine or anyone with information about her to come forward;
(h)on 8 March 2024, published a notice in The Western Australian Government Gazette, calling for Janine or anyone with information about her to come forward; and finally
(i)on 3 May 2024, published a notice in The West Australian Newspaper, calling for Janine or anyone with information about her to come forward.
None of the attempts by the Public Trustee yielded any further information about Janine's whereabouts or status.
When contacting the Morrison family in contemplation of these proceedings, the Public Trustee received information from Janine's family regarding Samuel [Redacted], who Janine's family knew to be Janine's son.
On 2 September 2024, the Public Trustee verified this information with the Registrar of Births, Deaths and Marriages who confirmed Samuel, born on 27 September 1988, is Janine's son. Samuel later also verified that information.
Samuel was placed in foster care shortly after his birth and adopted his foster parents' surname. Samuel's foster parents had previously attempted to contact Janine over the years but had not succeeded in doing so. Samuel is under the impression that Janine is no longer alive.
Service
The evidence establishes the application was properly served on Janine by substituted service, as ordered by Master Russell on 12 November 2024, and on Anita and Samuel by personal service. None of Janine, Anita or Samuel have filed an appearance in this matter or sought to be heard.
Disposition
Each of Anita and Samuel were advised by email of the date of this hearing.
I am satisfied that the Public Trustee has published advertisements in this state in The West Australian Newspaper, the North West Telegraph Newspaper and the WA Government Gazette, inviting contact from Janine or any person claiming through her and advising that if no contact is made within two months, her entitlement would be distributed to other beneficiaries of the estate. I am satisfied that those advertisements were appropriate in the circumstances of this case.
I am further satisfied by the affidavit material adduced that extensive and appropriate inquiries have been made in relation to Janine's whereabouts, and that no claims, other than that made by Samuel, have been made.
I am satisfied that the inquiries and steps taken to locate Janine are appropriate, and I am satisfied there are no further reasonable steps that would improve the position or state of the evidence.
In order to deal with this application, it is not necessary for me to determine what has happened to Janine. There are a number of possibilities and it is not appropriate to speculate as to which is most likely.
On the basis of my findings, it is appropriate to grant the order sought pursuant to s 66(5) of the Act to the effect that the Public Trustee distribute the money it holds on trust for Janine to Samuel.
It is also appropriate to make an order that the costs of the inquiries made by the Public Trustee be borne out of the funds held by the Public Trustee on trust for Janine before that distribution is made.
Having regard to the nature of the trust under which the Public Trustee holds the money for Janine, it is unnecessary to make the orders in the exact terms sought but I will hear further from the Public Trustee as to the nature of the order to be made.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BF
Associate to the Hon Justice Forrester
5 MAY 2025
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