Re Casey; Bruce v Bruce
[2021] VSC 618
•23 September 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S ECI 2020 02907
IN THE MATTER of the will and estate of WILLIAM JOHN JEBB CASEY, deceased
-and-
IN THE MATTER of an application pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015
BETWEEN:
| ROBERT WILLIAM BRUCE | Plaintiff |
| v | |
| HELEN FRANCES BRUCE (as executrix of the will of the abovenamed deceased) and others pursuant to the schedule attached | Defendants |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 23 September 2021 |
CASE MAY BE CITED AS: | Re Casey; Bruce v Bruce & Ors |
MEDIUM NEUTRAL CITATION: | [2021] VSC 618 |
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INTESTACY – Application for advice as to distribution of estate of deceased – Where intestacy in regard to residuary estate – Uncertainty as to entitlements in distribution of residuary estate – Turns on own facts – Status of Children Act 1974 (Vic) s 7(1)(b); Administration and Probate Act 1958 (Vic) s 52(1)(f).
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiff | Jansen Walsh & Grace | |
| For the defendants | Lakeside Lawyers | |
| Independent contradictor | Mr T Mah of counsel |
SCHEDULE OF PARTIES
S ECI 2020 02907
BETWEEN:
| ROBERT WILLIAM BRUCE | Plaintiff |
| -and- | |
| HELEN FRANCES BRUCE (as executrix of the will of the abovenamed deceased) | First defendant |
| -and- | |
| MARGARET LARAINE LYNEHAM | Second defendant |
| -and- | |
| ANNE ELIZABETH ELKINGTON | Third defendant |
| -and- | |
| DAVID OWEN JEBB | Fourth defendant |
HER HONOUR:
Introduction
William John Jebb Casey (‘the deceased’) died on 14 May 2015 leaving a will dated 30 May 2013 (‘the will’).
On 11 July 2016 probate of the will was granted to the first defendant. The executor has paid the legacies under the will and holds the residuary estate of approximately $244,000.
In respect of the residuary estate, there is an intestacy.
The deceased was unmarried and did not have any children or siblings. His parents and grandparents predeceased him. This means that the deceased’s residuary estate will be distributed to his more remote relatives.
Robert William Bruce (‘the plaintiff’) is a maternal first cousin once removed of the deceased. He is the only child of Robert Valentine Bruce and Betty Alice Bruce (née Ward). Betty Alice Bruce shares the same grandparents as the deceased and is his first cousin.
There is uncertainty as to whether the second to fourth defendants, Margaret Laraine Lyneham, Anne Elizabeth Elkington and David Owen Jebb, (‘the potential beneficiaries’) are also the deceased’s first cousins once removed and, therefore, potentially entitled to share in the distribution of the residuary estate.
The potential beneficiaries are the children of the Reverend John Jebb (‘John Jebb’), who may be the son of Reginald St George Thomas Jebb (‘Reginald Jebb’), the deceased’s maternal uncle.
Application
Pursuant to ord 54 of the Supreme Court (General Civil Procedure) Rules 2015, the plaintiff seeks:
(a) a declaration as to whether, on the evidence presently available, John Jebb (who died on 21 December 2011) was the natural son of Reginald Jebb (who died on 1 February 1984);
(b) a declaration as to whether the second, third, and fourth defendants are persons entitled under (now repealed) s 52(1)(f) of the Administration and Probate Act 1958 (Vic) to participate in the distribution of the residuary estate of the deceased;
(c) an order that, in the events that happened, the first defendant is justified in distributing the net residuary estate of the deceased to the plaintiff in the absence of any nearer next-of-kin surviving the deceased; and
(d) in the alternative, an order that, in the events that have happened, the first defendant is justified in distributing the net residuary estate of the deceased to the plaintiff, and the second, third and fourth defendants in the absence of any evidence of any nearer next-of-kin surviving the deceased.
Procedural history
In anticipation of the first directions hearing the plaintiff filed an affidavit exhibiting correspondence received from each of the potential beneficiaries, in which they indicated they did not wish to contest the will and would abide by the decision of the Court.
At the first return of the proceeding on 4 September 2020, the Court ordered that the plaintiff file and serve a distribution statement by the first defendant, an affidavit deposing to the steps taken by the plaintiff to ascertain the deceased’s paternal relatives and a transcribed copy of the will.
On 23 November 2020, the plaintiff filed a further affidavit exhibiting the result of investigations from Worthington Clark Genealogy and Asset Research in respect of the deceased’s paternal relatives.
At the next return date of the proceeding on 27 November 2020, orders were made appointing Mr Thomas Mah of counsel as contradictor to provide an independent advice in relation to the relief sought by the plaintiff.
On 27 January 2021 the contradictor provided his advice which suggested that obtaining the probate file of Reginald Jebb may be informative as to whether or not he was the father of John Jebb.
The proceeding was adjourned for the plaintiff to obtain the file and to file any further affidavits and for the contradictor to file any further advice and for the application to be considered by the Court on the papers.
The deceased’s relatives
Paternal next-of-kin
The plaintiff’s investigations indicate that the deceased’s father, Robert Henry Casey was the child of William Casey and Rose Elizabeth Harris. William Casey and Rose Elizabeth Harris (both deceased), had two children in addition to the deceased’s father, being Arthur William Casey and Margaret Harriet Casey.
Arthur William Casey died without issue. Margaret Harriet Casey married Francis Bede Nilon and had 10 children (the deceased’s first cousins):
(a) Neta Margaret Nilon, who died on 6 May 1987;
(b) Geoffrey Bede Nilon, who died on 8 January 2000;
(c) Arthur James Nilon, who died on 30 October 1943;
(d) Robert Ignatius Nilon, who survived the deceased but died on 25 January 2016;
(e) Peter Edward Nilon, who died on 20 November 1963;
(f) Francis John Nilon, who died on 26 June 2011;
(g) Donald Joseph Nilon, who survived the deceased but died on 15 March 2019;
(h) Barbara Rose Nilon, who died on 4 August 2004;
(i) Angela Mary Nilon, who died on 24 August 1991; and
(j) William Denis Nilon, who died on 16 April 2002.
The deceased’s closest paternal next-of-kin at the time of death were his first cousins, Robert Ignatius Nilon and Donald Joseph Nilon (now deceased).
Maternal next-of-kin
The deceased’s mother is Ethel Helena May Casey (née Jebb), who died on 29 December 1942. Ethel Casey’s parents are William Henry Jebb and Alice Jebb, who are the deceased’s maternal grandparents. They died on 25 August 1922 and 4 February 1930, respectively.
William Jebb and Alice Jebb had five children, being:
(a) William John Jebb, who died on 25 October 1917 during World War I without issue;
(b) Alice Gladys Jebb, who died on 1 July 1980 without issue;
(c) Winifred Muriel Jebb, who died on 26 May 1976. She had a daughter, Betty Alice Bruce;
(d) Reginald Jebb, who died on 1 February 1984; and
(e) Ethel Jebb, the deceased’s mother, who died on 29 December 1942.
Betty Alice Bruce is the plaintiff’s mother. Betty Bruce died on 19 May 1978. Betty Bruce is therefore the deceased’s first cousin, while the plaintiff is the deceased’s first cousin, once removed.
The plaintiff engaged an investigation agency to locate any persons with the surname ‘Jebb.’ These enquiries revealed a John Jebb of Ballarat, who was survived by three children, Margaret Laraine Lyneham, Anne Elizabeth Webb and David Owen Jebb, being the potential beneficiaries.
Anne Elizabeth Webb provided a death certificate of John Jebb which indicated that he died on 21 December 2011, his mother was Susan Elizabeth Golding, he married Eunice May Walker and was survived by the potential beneficiaries. The death certificate did not record his date of birth, however, it stated that he was 88 years old on his death. The death certificate listed John Jebb’s father as ‘unknown UNKOWN.’
The plaintiff wishes to discern whether John Jebb was related to William Henry Jebb or Alice Jebb, either by blood or adoption.
On 9 December 2019 the plaintiff wrote to the potential beneficiaries. On 5 July 2020, a response was received from Margaret Laraine Lyneham who provided the following details about her father, inter alia:
(a) it was her understanding when she was growing up that her father’s family consisted of five children and that he had principally been brought up by his siblings following the death of his parents;
(b) John Jebb told her his mother’s name was Alice and that one of the siblings died before World War I and that he had been given his name ‘John’;
(c) during the 1950s and 1960s contact was maintained by her father, mother and siblings with the remaining members of the Jebb family, whom were considered aunts and uncles;
(d) Reginald Jebb, Gladys Jebb and Will (Bill) Casey lived in the family home in Erindale during this time. The home was in Reginald Jebb’s name following the death of his parents. This is the home in which her father was brought up;
(e) Reginald Jebb was the person that her family had immediate contact with. As small children, he would travel by train to visit them. Although they called him ‘uncle Reg’ he was more like a grandfather figure. He attended birthday parties, weddings, anniversaries and other wider family celebrations up until his death in 1984. Reginald was included in family celebrations pertaining to their mother’s family and he was always considered to be an integral part of the family;
(f) During the last few days of his life, Reginald told her father that he was John Jebb’s father (and therefore her grandfather);
(g) It was not until her late teens that she learned her father had been an ‘adopted’ child of the family, and had entered the household when he was about five or six years of age. This information was provided by Margaret’s mother;
(h) The birth mother of John Jebb is Susan Elizabeth Golding. She has seen John Jebb’s original birth certificate at the time of his death which states this;
(i) She has not seen any documentary evidence as to her father’s biological father, other than the verbal statement made by Reginald immediately prior to his death;
(j) She was not aware whether her father had any siblings from his biological mother.
At the suggestion of the contradictor, the plaintiff acquired the probate file of Reginald Jebb to obtain further information to assist in determining John Jebb’s paternity.
The will of Reginald Jebb dated 29 September 1982 appointed John Jebb and solicitor John George Rennie McArthur as executors of his estate and gifted his property at Elsternwick (or money to the value of the net proceeds of sale) to John Jebb with the balance of his residuary estate to the potential beneficiaries in equal shares. In paras 2 and 3 of the will of Reginald Jebb, John Jebb is referred to as ‘my brother’ and ‘my said brother’.
The affidavit of John Jebb sworn 20 March 1984 in support of his application for probate of this will states at para 5 ‘by his will the said testator appointed me, this deponent his brother and the said John George Rennie McArthur as executors thereof’.
Reverend John Jebb
As a result of the plaintiff’s investigations, there is conflicting information regarding the relationship between the deceased’s uncle Reginald Jebb and John Jebb. The status of this relationship will inform who is entitled to share in the estate of the deceased.
If John Jebb is the brother of Reginald Jebb, then the potential beneficiaries are the deceased’s first cousins and will be entitled to share in the estate of the deceased with Robert Ignatius Nilon and Donald Joseph Nilon, the deceased’s paternal cousins alive at the time of his death.
If John Jebb is the son of Reginald Jebb, then the potential beneficiaries (along with the plaintiff) are first cousins once removed of the deceased, and are more remote than deceased’s two paternal cousins alive at the time of his death and are therefore not entitled to share in the estate.
Submissions
The contradictor provided two advices and made the following submissions, inter alia:
Paragraph (a) of the originating motion – Reginald Jebb’s and John Jebb’s relationship
(a) Margaret Laraine Lyneham’s letter is not in the form of a sworn affidavit and she is not participating in this proceeding so she cannot be cross-examined to test the veracity of her statement. Nevertheless, the overall impression is that her statement is truthful given that her description of her family’s background bears remarkable resemblance to the plaintiff’s own genealogical research;
(b) There is remarkable similarity between the family as described by Margaret Laraine Lyneham and the deceased’s family. It is therefore likely that Margaret Laraine Lyneham was truthfully describing her own extended family (being the same extended family as the deceased);
(c) The most critical part of Margaret Laraine Lyneham’s statement is Reginald Jebb’s eventual admission to John Jebb that he was John Jebb’s father. Given Reginald Jebb was never married, pursuant to s 7(1)(b) of the Status of Children Act 1974 (Vic) the relationship of father and child between Reginald Jebb and John Jebb is to be recognised (for succession purposes) only if Reginald Jebb had expressly or impliedly recognised paternity during Reginald’s lifetime;
(d) There is no documentary evidence before the Court that establishes that Reginald Jebb was John Jebb’s father. Accordingly, if the Court does not accept Margaret Laraine Lyneham’s evidence of Reginald’s alleged recognition of paternity, then the Court cannot recognise, for succession purposes, John Jebb as Reginald Jebb’s son;
(e) As stated above, Margaret Laraine Lyneham’s statement has the ring of truth. She was frank in admitting that she has not seen any documentary evidence of John Jebb’s father. She does not say whether John Jebb’s birth certificate records his father’s name, however, in light of her concession that she has no documentary proof of her father’s father, presumably John Jebb’s birth certificate did not record his father;
(f) Further, it is in fact not in Margaret Laraine Lyneham’s financial interest to give evidence supporting that John Jebb was Reginald Jebb’s son. Reginald Jebb’s death certificate recorded John Jebb as Reginald’s brother. John Jebb was also raised as Reginald’s younger brother. Had that been true that would have made the potential beneficiaries the deceased’s first cousins and the closest surviving relatives of the deceased, thus entitling them to the deceased’s residuary estate to the exclusion of the plaintiff;
(g) That Reginald Jebb may have concealed the true nature of his relationship with John Jebb is not surprising. John Jebb was about 88 years old when he died in 2011 meaning he would have been born in about 1923. At that time there was a prevailing social stigma attached to people born out of wedlock and their parents. If Reginald Jebb did indeed father John Jebb out of wedlock it is fathomable that the Jebb family would have tried to pass John Jebb off as Reginald Jebb’s younger brother;
(h) Reginald Jebb was 84 at the time of his death in 1984 so he would have been born in about 1900, making him about 23 when John Jebb was born. In 1923 William Jebb would have already died and Alice Castle would have been about 58 (she was aged 65 when she died in 1939). John Jebb is therefore unlikely to be their child.
Following receipt of the probate file of Reginald Jebb
(a) It is also telling that Reginald Jebb had left his estate to John Jebb and John Jebb’s children. At the time of his death Reginald Jebb had other relatives living including the plaintiff and the deceased. Margaret Laraine Lyneham stated that Reginald Jebb had provided support for all of his siblings and their family. That Reginald Jebb left his entire estate to John Jebb and his children is consistent with the proposition that Reginald Jebb was in fact John Jebb’s father since general human experience is that people tend to leave most of their estate to their direct descendants;
(b) The probate records therefore reinforce the conclusion that Margaret Laraine Lyneham’s statement appears to be generally true and, if the Court accepts her statement, it is more likely than not that Reginald Jebb was the biological father of John Jebb and that he had admitted the relationship to John Jebb just before his death;
(c) If the Court accepts that Reginald was John Jebb’s father, then John Jebb would be the deceased’s maternal first cousin. John Jebb’s children, that is, the potential beneficiaries would therefore be the deceased’s maternal first cousins once removed.
Paragraphs (b) to (d) of the originating motion – how should the estate be distributed
(a) It would appear that the deceased’s closest living relatives at the time of his death are his two paternal first cousins Robert Ignatius Nilon and Donald Joseph Nilon. The plaintiff and the potential beneficiaries, who are the deceased’s maternal first cousins once removed (if the Court accepts that Reginald Jebb is John Jebb’s son) are more remote than Robert and Donald;
(b) The deceased died on 14 May 2015, and accordingly the intestacy provisions that existed prior to the 2017 amendments are applicable. Pursuant to s 52(1)(f) of the Administration and Probate Act 1958 (Vic) as in force on 14 May 2015, if an intestate died without a partner, children, siblings, nieces and nephews, and surviving grandparents, then the estate is to be distributed to the next of kin who are in equal degree from the intestate;
(c) Further, pursuant to s 52(1)(f)(iii) of the Administration and Probate Act 1958 (Vic), no representation is to be admitted among collaterals beyond the intestate’s siblings’ children. In other words, apart from an intestate’s nieces and nephews, no beneficiaries are to take an entitlement by representation. So a first cousin once removed of an intestate would not take that cousin’s parent’s share had that parent survived the intestate. Instead, the first cousins once removed of an intestate would only take if all of the intestate’s first cousins, great nieces and nephews, great uncles and aunts, and great-grandparents had predeceased;
(d) In this case, given two of the deceased’s first cousins had survived him, they would be entitled to the whole of the residuary estate. The deceased’s first cousins once removed would therefore not be entitled. Accordingly, based on the plaintiff’s evidence, the persons entitled to the deceased’s residuary estate are Robert Ignatius Nilon and Donald Joseph Nilon. Given that they have now passed away, the residuary estate would be distributed to Robert Ignatius and Donald Joseph Nilon’s estates.
On 26 March 2021 the plaintiff filed submissions and proposed orders that broadly align with the conclusions of the contradictor. The plaintiff sought a declaration that the next of kin entitled to participate in the distribution of the residuary estate of the deceased were Robert Ignatius Nilon and Donald Joseph Nilon. The plaintiff sought the following orders:
(a)The first defendant be at liberty to distribute the residuary estate passing to Robert Ignatius Nilon to Gerrard Charles Nilon in his capacity as executor of the Will of Robert Ignatius Nilon after provision of a certified copy of the grant of probate to the first defendant’s solicitors.
(b) The first defendant be at liberty to distribute the residuary estate passing to Donald Joseph Nilon to Danielle Louise Nilon and Robert James Nilon in their capacity as the substituted executors of the Will of Donald Joseph Nilon after they obtain a grant of probate after provision of a certified copy of the grant of probate to the first defendant’s solicitors.
At the request of the Court, the plaintiff filed an affidavit affirmed by Margaret Laraine Lyneham, in which she corroborates her earlier statement. In particular, she deposes that the potential beneficiaries are the children of John Jebb, that when growing up they considered Reginald Jebb as their uncle and father’s brother and that following Reginald Jebb’s death her parents informed her that Reginald Jebb had told them that he was John Jebb’s father, rather than his brother.
Consideration
John Jebb’s relationship with Reginald Jebb will inform whether or not the plaintiff and the potential beneficiaries are entitled to share in the estate in addition to the estates of Robert Ignatius and Donald Joseph Nilon.
There is no documentary evidence indicating that Reginald Jebb is John Jebb’s father. Reginald Jebb’s death certificate indicates he did not have any children. While John Jebb’s birth certificate is not readily available, his death certificate lists his father as ‘Unknown unknown’.
The information provided by Margaret Laraine Lyneham indicates that publically during Reginald’s Jebb life, John Jebb was referred to and considered his brother. This is evident by the way Reginald Jebb was understood to be the potential beneficiaries’ uncle and by the language adopted by Reginald Jebb in his will.
From the age of Reginald Jebb’s parents, William Jebb and Alice Jebb, it is highly unlikely that they are his biological parents. Further, no documentary evidence suggests that John Jebb is their son.
The only evidence before the Court that John Jebb is Reginald Jebb’s son is the unsworn statement and subsequent affidavit from Margaret Laraine Lyneham that it was her understanding that John Jebb was informed by Reginald in his last days, that John Jebb was his son.
As noted by the contradictor, the circumstances suggest that this statement regarding John Jebb’s paternity can be accepted as truthful as Margaret Laraine Lyneham has a good knowledge of the Jebb family, the statement is contrary to her interests in this proceeding and is consistent with the dispositions in Reginald Jebb’s will, if not the wording.
Therefore there is no objective evidence obtained by the plaintiff that informs the nature of the relationship between Reginald Jebb and John Jebb either as a parent or a brother. There is anecdotal evidence that suggests throughout Reginald Jebb’s life, he was considered Jebb’s brother and Margaret Laraine Lyneham’s statement that notwithstanding this it was her understanding Reginald Jebb admitted to John Jebb he was his father prior to passing away.
In these circumstances, on balance, it is more probable than not that John Jebb was Reginald Jebb’s son. As noted by the contradictor, Margaret Laraine Lyneham’s statement is generally credible given she otherwise was clear about her understanding of the Jebb family, had a good recollection of their family history and the comments in relation to Reginald Jebb’s admission of paternity are contrary to her interests. Reginald Jebb being John Jebb’s father is also consistent with Margaret Laraine Lyneham’s account of their family history, his involvement with John Jebb’s family and the disposition of his estate.
Costs
The plaintiff sought orders that his costs be paid out of the estate of the deceased on the standard basis and the first defendant’s costs be paid out of the estate of the deceased on the indemnity basis.
While the plaintiff has not obtained the orders by him, that is, to be included as a beneficiary of the deceased’s estate, he did facilitate the administration of the estate by initiating the proceeding and obtaining the genealogical research. As submitted by the contradictor, the search for the deceased’s next of kin and the issue concerning the relationship between John Jebb and Reginald Jebb were issues that always required resolution. This proceeding has resolved those issues for the benefit of the estate. In the usual course the executor would have commenced the proceeding and carried out the searches and, if so, those costs would be paid from the estate on an indemnity basis. In effect, the plaintiff has undertaken the work that ordinarily would have been carried out by the executor. In such circumstances the plaintiff’s costs of this proceeding should be paid from the deceased’s residuary estate on an indemnity basis. The defendants have not participated in the proceeding and it would be unlikely that they would have incurred any costs in the proceeding.
Declarations and orders
Accordingly, the Court declares that:
(a) the relationship of father and child existed between Reginald St George Jebb (who died on 1 February 1984) and John Jebb (who died on 21 December 2011); and
(b) for the purpose of s 7(1)(b) of the Status of Children Act 1974 (Vic), the paternity of John Jebb had been admitted by his father Reginald St George Jebb in his life time.
And the Court orders that:
(a) the first defendant be at liberty to distribute the residuary estate of the deceased to the legal personal representatives of the estates of Robert Ignatius Nilon and Donald Joseph Nilon, deceased, in equal shares; and
(b) the parties’ costs of the proceeding be paid from the estate of the deceased on an indemnity basis.
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