Re Mas; Weston v Donaldson
[2018] VSC 405
•24 July 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S CI 2017 04214
IN THE MATTER of the will and estate of LENIN MARTIN MAS, deceased
-and-
IN THE MATTER of an application pursuant to Order 54 of the Supreme Court (General Civil Procedure) Rules 2015
| DOUGLAS LINDSAY WESTON (as executor of the Estate of LENIN MARTIN MAS, deceased) | Plaintiff |
| v | |
| ANDREW ROBERT CHARLES DONALDSON | Defendant |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 24 July 2018 |
CASE MAY BE CITED AS: | Re Mas; Weston v Donaldson |
MEDIUM NEUTRAL CITATION: | [2018] VSC 405 |
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SUCCESSION — Construction of will — Whether ‘nieces and nephews’ includes nephews and nieces by affinity — Where phrase ‘nieces and nephews’ not open to equivocation —Fell v Fell (1922) 31 CLR 268 — Perrin v Morgan [1943] AC 399 — Parry v Haisma [2012] NSWSC 290 — Re Staughton; Grant v McMillan [2017] VSC 359 — Wills Act 1997, s 36.
SUCCESSION — Administration — Whereabouts of nephew unknown — Whether Benjamin order appropriate — Advertisement not required if irresistible inference on facts — Benjamin order not yet appropriate — Re Benjamin; Neville v Benjamin [1902] 1 Ch 723 — Gonzales v Claridades [1956] VLR 535.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Guzzo | AB Natoli Pty |
| For the Defendant | Cavoli & Co Solicitors |
HER HONOUR:
Introduction
Lenin Martin Mas, also known as Leonard Martin Mas died on 15 August 2014 (‘the deceased’ or ‘the testator’). His wife predeceased him, having died in 1995. The deceased and his wife had no children.
The deceased’s will dated 19 June 2014 appointed the plaintiff and the defendant as the executors and trustees of his estate. Probate of the deceased’s will was granted to the plaintiff and the defendant on 11 June 2015. The plaintiff is the deceased’s brother-in-law. The defendant is the son of the deceased’s sister-in-law.
Although an executor of the estate of the deceased, the defendant is not named in this proceeding in that capacity as, in a separate proceeding, he claims provision from the estate, pursuant to Part IV of the Administration and Probate Act 1958.[1]
[1]Proceeding number S CI 2015 06250.
Relevant provisions of the will
Clause 3(b) of the deceased’s will provides for the residue of his estate to be distributed as follows:
(b)to pay and transfer the rest residue and remainder of my Estate (herein called ‘my Residuary Estate’) equally between my nieces and nephews or the survivor of them PROVIDED HOWEVER should any such niece or nephew of mine be unwilling or unable to take (whether by reason of death or otherwise) having child or children of their own alive at my death and who have attained or subsequently attain their majority then such child or children shall take the share which his, her or their parent would have otherwise taken and if more than one in equal shares.
The deceased had no children and no siblings, and thus, no nieces or nephews by consanguinity. He does, however, have nieces and nephews by affinity, through his wife. She had two sisters and five brothers, and between them they produced twenty five children. Of those twenty five nephews and nieces, twenty one are living and three nephews are deceased. Of the deceased nephews, one had no children, another had two children and the other had five children. Despite the plaintiff’s efforts to locate the remaining nephew, Robert Donald Weston, born 20 September 1964, he has not been located.
Plaintiff’s application
Pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015, the plaintiff seeks the determination of the following questions arising in the administration of the deceased’s estate:
(a)Does the expression ‘my nieces and nephews’ in the will of the late Lenin Martin Mas made 19 June 2014, mean the nieces and nephews of his wife, Helen.
(b)If the answer to the question (a) is ‘yes’, should the gift contained in paragraph 3(b) of the will of the abovementioned deceased take effect in favour of the nieces and nephews of his wife, Helen.
(c)Can the executor be entitled to cease any further searches for [Robert] Donald Weston [born 20 September 1964].
(d)If the answer to the question [(c)] is ‘yes’, should the executor be at liberty to distribute or apply any share of the estate to which [Robert] Donald Weston may be entitled to the remaining ‘nieces and nephews’ of his wife Helen.
Will construction principles
The Court’s primary task in construing a will is to ascertain the testator’s intention through analysis of the words used and having regard to the will construed as a whole, in light of any admissible evidence.[2]
[2]Re Staughton; Grant v McMillan [2017] VSC 359 (22 June 2017) [35] (‘Re Staughton’); Re De Bruyn [2016] VSC 6 (22 January 2016) [11].
In Fell v Fell, Isaacs J outlined ten principles for the construction of wills, of which the following are relevant to this proceeding:
(1)‘Every will must by law be in writing, and it is a necessary consequence of that law that the meaning must be discovered by the writing itself, aided only by such extrinsic evidence, as is necessary in order to enable us to understand the words which the testator has used’ (Abbott v Middleton).
…
(4)An inference cannot be made ‘that did not necessarily result from all the will taken together’ (Upton v Ferrers). A necessary inference is one the probability of which is so strong that a contrary intention cannot reasonably be supposed (Crook v Hill).
…
(10)‘The mind never inclines towards intestacy; it is a dernier ressort in the construction of wills’ (Lightfoot v Maybery). ‘In ascertaining the intention, I ought to a certain extent — we all know what the expression means — to lean against an intestacy, and not to presume that the testator meant to die intestate if, on a fair construction, there is reason for saying the contrary’ (Kirby-Smith v Parnell).[3]
[3]Fell v Fell (1922) 31 CLR 268, 273–6 (citations omitted) (emphasis in original).
The first stage of analysis is to consider the ordinary meaning of the words in the will. In Re Staughton, the Court noted that:
If, in the context of the will read as a whole, and of the surrounding circumstances, the ordinary meaning of the words in the will do not make sense, extrinsic evidence is admissible under the ‘armchair principle’. In effect, the court is able to consider evidence of the circumstances surrounding the testator at the time of executing the will.[4]
[4]Re Staughton [2017] VSC 359 (22 June 2017) [37] (citations omitted).
On the permissible use of extrinsic evidence, Lord Romer observed in Perrin v Morgan as follows:
To understand the language employed the court is entitled, to use a familiar expression, to sit in the testator’s armchair. When seated there, however, the court is not entitled to make a fresh will for the testator merely because it strongly suspects that the testator did not mean what he has plainly said.[5]
[5]Perrin v Morgan [1943] AC 399, 420.
In the same case, Lord Atkin commented that the Court is not ‘precluded from looking outside the terms of the will’, as ‘[n]o will can be analysed in vacuo’ and observed that:
There are material surroundings such as I have suggested in every case, and they have to be taken into account. The sole object is, of course, to ascertain from the will the testator’s intentions. The result of your Lordships’ decision will be to relieve judges in the future from the thraldom, often I think self-imposed, of judgments in other cases believed to constrain them to give a meaning to wills which they know to be contrary to the testator’s intention.[6]
[6]Ibid 414–15.
The current approach to the construction of wills is an intentionalist approach, as set out in Perrin v Morgan above, rather than a literal approach. In Parry v Haisma, White J described the intentionalist approach as asking ‘what meaning, having regard to the terms of the will and admissible extrinsic evidence, the testator intended by the words used’.[7]
[7]Parry v Haisma [2012] NSWSC 290 (30 March 2012) [30].
In the event that evidence of surrounding circumstances fails to resolve the ambiguity present in the ordinary meaning of words, and an equivocation arises, then an exception to the usual common law reticence concerning direct evidence of a testator’s intention is applicable.[8] In Re Staughton, an ‘equivocation’ is described as ‘a term that, upon application to external objects, is found to fit two or more of them equally’.[9]
[8]Re Staughton [2017] VSC 359 (22 June 2017) [38].
[9]Ibid citing In re Smith [1939] VLR 213, 218.
According to Haines in Construction of Wills in Australia, the principles relating to extrinsic evidence and equivocation:
[A]pply only where a court cannot identify the intended donee or legatee in a will because of exact duplicity in description. … Equivocation occurs when the description in a will is applicable in all its parts to two or more subjects or objects.[10]
[10]David M Haines, Construction of Wills in Australia (LexisNexis Butterworths, 2007) 71 [5.16].
In A Treatise on Extrinsic Evidence in Aid of the Interpretation of Wills, Sir James Wigram commented on extrinsic evidence that:
[W]here the description, in the will, of the person or thing intended, is applicable with legal certainty to each of several subjects, extrinsic evidence is admissible to prove which of such subjects was intended by the testator.
…
[I]n order that a case may be brought within the scope of this proposition, it is not necessary that the description in the will should be in all respects accurate or perfect. All that the law requires on this point is, that the description shall be so far perfect as to describe with legal certainty each of the subjects to which it is sought to be applied …[11]
[11]Sir James Wigram, A Treatise on Extrinsic Evidence in Aid of the Interpretation of Wills (Baker, Voorhis & Co, 1872) 232–3, cited in Re Cullen [1946] VLR 47, 48–9 and Re Staughton [2017] VSC 359 (22 June 2017) [39] (citations omitted) (emphasis in original).
In addition to the armchair principle, the admissibility of extrinsic evidence is supplemented by s 36 of the Wills Act 1997, applicable to wills made on or after 20 July 1998, which provides as follows:
(1)In any proceedings to construe a will, if the language used in a will renders the will or any part of the will —
(a) meaningless; or
(b) uncertain or ambiguous on the face of the will; or(c) uncertain or ambiguous in the light of surrounding circumstances —
evidence may be admitted to assist in the interpretation of that language.(2)Evidence which may be admitted under subsection (1)(c) does not include evidence of the testator’s intention.
(3)Nothing in this section prevents the admission of evidence which would otherwise be admissible at law in any proceedings to construe a will.
Gifts to ‘nephews and nieces’
In Trustees Executors and Agency Co Ltd v Johnston, Adam J stated the proposition with respect to ‘nieces and nephews’ thus:
A proposition which has been established beyond all controversy by the authorities is that according to the ordinary and natural meaning of language the expression ‘my nephews and nieces’ means nephews and nieces by blood; it does not extend to include nephews and nieces by affinity.[12]
[12]Trustees Executors and Agency Co Ltd v Johnston [1970] VR 587, 588 (‘Trustees Executors’).
As indicated in Trustees Executors, where the context of the will has left room for doubt regarding the category of ‘nephews and nieces’, the subsequent construction of this class of beneficiaries has historically benefitted nephews and nieces by consanguinity, rather than by affinity, as ‘the prima facie construction of such a gift is to nephews and nieces related by blood’.[13]
[13]David M Haines, Construction of Wills in Australia (LexisNexis Butterworths, 2007) 171 [16.28].
Trustees Executors concerned a question of whether the deceased’s nephews and nieces by affinity shared the residuary estate with the deceased’s nephews and nieces by consanguinity (of which there was only one nephew by consanguinity). Adam J adopted a relatively narrow approach to consideration of the context of the will as a whole by determining that ‘nephews and nieces’ as a composite class could, ‘consistently with a common use of language’, support a finding that the class contained one nephew and eight nieces by consanguinity, whilst excluding the nephews and nieces by affinity, with the use of the plural form of ‘nephews’ not affecting its construction in this instance.[14]
[14]Trustees Executors [1970] VR 587, 590–1.
Further, although a niece and nephew by affinity had been appointed as co-executors and co-trustees of the deceased’s estate, this did not lead to the nephews and nieces by affinity being included in the class of ‘such of my nephews and nieces as are alive at my death’ with the nephews and nieces by consanguinity. In such instances, where there are specific bequests to nieces or nephews by affinity, or they have been assigned roles as executors/trustees, and where they have been described as ‘nieces’ or ‘nephews’, arguments have been made that the testator has, in effect, provided his or her own dictionary for how the more general expression of ‘nephews and nieces’ is to be construed; known as the ‘dictionary principle of construction’.[15] This argument was raised unsuccessfully in Trustees Executors.
[15]Ibid 589.
Adam J also considered alternative fact scenarios involving circumstances in which nephews and nieces by affinity ‘could’ share the residuary estate with nephews and nieces by consanguinity as follows:
Had the residuary gift been in the precise form in fact employed in this will, but [the] testator had no nephew by blood, but only nieces, the only conclusion, if sense was to be given to his language, would have been that relatives by affinity were intended to be included: otherwise the references to ‘nephews’ would have been meaningless.[16]
[16]Ibid 590.
There are instances where nephews and nieces by affinity have benefitted in the absence of nephews and nieces by consanguinity. For example, in Hogg v Cook, the deceased had no siblings and, therefore, no nephews or nieces by consanguinity but he had nephews and nieces by affinity, through his wife. Sir John Romilly stated:
I must give some meaning to the words ‘nephews and nieces’. In common parlance, no distinction is made between nephews and nieces of the husband and those of the wife.[17]
[17]Hogg v Cook (1863) 32 Beav 641, 642; 55 ER 252.
On the use of such terms in ‘common parlance’, Haines cites Sherratt v Mountford[18] and states that ‘[a] man commonly refers to his wife’s nephew or niece as his nephew and niece, especially while they are young children, and that is a popular and not improper use of the words’.[19] In Sherratt v Mountford, the testator had no living siblings and no nephews or nieces by consanguinity, but he did have nephews and nieces by affinity. Adopting an approach that might be termed ‘intentionalist’, Sir W M James LJ stated that:
The only safe rule is that when persons have been found sufficiently answering the description in the will, there we stop, and are not to go any further unless it is shewn that there is another class of persons also sufficiently answering the description, in which case extrinsic evidence is admissible to remove the latent ambiguity, and shew which of the two classes was intended.[20]
[18]Sherratt v Mountford (1873) LR 8 Ch App 928, 930.
[19]David M Haines, Construction of Wills in Australia (LexisNexis Butterworths, 2007) 171 [16.28].
[20]Sherratt v Mountford (1873) LR 8 Ch App 928, 930–1.
In the same case, Sir G Mellish LJ was of the same opinion, stating:
No doubt a man’s own nephews and nieces are primarily his nephews and nieces, but I am of opinion that his wife’s nephews and nieces are his nephews and nieces according to the ordinary meaning of the words in a secondary sense; so that if he has no nephews or nieces according to the strict primary sense, then his wife’s nephews and nieces will take under the description of his nephews and nieces, unless there is some other class of persons who come into competition with them … if there is no such class, if no one claims under the description of his nephews and nieces except his wife’s nephews and nieces, that then his wife’s nephews and nieces will take rather than that the gift should fail …[21]
[21]Ibid 931.
This approach was not followed in the subsequent case of Wells v Wells, where the phrase ‘all my nephews and nieces’ was construed using the literalist approach to prevent the secondary meaning being imported into a residuary gift. The residuary gift had been interpreted to include nephews and nieces by consanguinity only, despite a niece by affinity being given a specific bequest elsewhere in the will. [22]
[22](1874) LR 18 Eq 504.
In Parry v Haisma, White J referred to the approach taken in Wells v Wells, both the literal approach to construction and the restrictive view concerning admission of extrinsic evidence, and stated that such an approach ‘would not now be supported.’[23] White J confirmed that the intentionalist approach has prevailed since Perrin v Morgan.[24]
[23]Parry v Haisma [2012] NSWSC 290 (30 March 2012) [40].
[24]Ibid [30].
Where the primary (consanguinity) and secondary (affinity) meanings are in conflict, then the construction of ‘nephews and nieces’ will depend upon the context of the will and the surrounding circumstances. On this point, Haines states that:
There are, however, circumstances where nephews and nieces determined by affinity will share with those related to a testator by consanguinity. If the content of a will so permits, nephews and nieces by affinity may be included in such a description.[25]
[25]David M Haines, Construction of Wills in Australia (LexisNexis Butterworths, 2007) 171 [16.28].
This approach was taken in Re Cozens; Miles v Wilson, where Swinfen Eady J construed ‘my own nephews and nieces’ to include lawful nephews and nieces of the deceased, who were of ‘whole or half-blood’ and to exclude ‘great-nephews or great-nieces… nephews or nieces of [the deceased’s] husband … and all other persons…’ despite some of those persons having been inaccurately referred to as ‘my niece’ or ‘my nephew’ in other sections of the deceased’s will.[26] In making this determination, he stated as follows:
The true rule is to determine by the language and context of each will, including the consideration of the whole instrument and any evidence properly admissible, the meaning of the expressions contained in it, and the persons who are entitled to share in the benefits thereby conferred.[27]
[26]Re Cozens; Miles v Wilson [1903] 1 Ch 138, 144.
[27]Ibid 143.
In Parry v Haisma, White J conducted an extensive review of the authorities governing the construction of ‘nephews and nieces’, commenting that:
Courts have consistently construed gifts to relatives as meaning relatives by blood, except where there is a clear contrary indication. This reflects a judicial assessment that when people leave gifts to relatives in their will, they usually intend to benefit their relations by blood. This is not just a now discarded literalist approach to interpretation that applies an artificial rule. It is based on a presumption of what testators intend. The presumption must give way to a contrary intention. [28]
[28]Parry v Haisma [2012] NSWSC 290 (30 March 2012) [31].
In Attorney-General v The Commonwealth, a case regarding the legitimacy of a child from a void marriage, Dixon CJ stated:
We are all familiar with the rule that in any disposition of property whether testamentary or inter vivos a reference to son, daughter, nephew, niece, sister or any ordinary descriptive term implying blood relationship is to be construed as confined to those filling the description by legitimate blood relationship: only a very strong context or a context aided by extrinsic circumstances leaving no logical escape will authorize any other interpretation. The rule when it became settled was not considered artificial but to accord with the intention expressed in the words.[29]
[29]A-G v Commonwealth (1962) 107 CLR 529, 545, cited in Parry v Haisma [2012] NSWSC 290 (30 March 2012) [47].
The above cases canvass the literal and intentionalist approaches to construction of a will. While the outcomes vary, there is common ground in the focus on the ordinary meaning of the language in the will, on the context in which the language resides, and on the surrounding circumstances.
A further option for determining the ordinary meaning of a word or expression used in a will is to consult dictionaries published during the relevant time period.
The Macquarie Dictionary, published shortly before the deceased made his will, defines ‘nephew’ and ‘niece’ as:
nephew
1. a son of one’s brother or sister.
2. a son of one’s husband’s or wife’s brother or sister.
3. …[30][30]Macquarie Dictionary (Macquarie Dictionary Publishers, 6th ed, 2013) 986.
niece
1. a daughter of one’s brother or sister.
2. a daughter of one’s husband’s or wife’s brother or sister.
3. …[31]
[31]Ibid 992.
The Shorter Oxford English Dictionary on Historical Principles contains the following definitions for ‘nephew’ and ‘niece’:
nephew
1. A son of a person’s brother or sister; a son of a brother- or sister-in-law. … [32]
niece
1. Orig., a granddaughter; a remote female descendant. Later, a daughter of a person’s brother or sister; a daughter of a brother- or sister-in-law. …
2. A female relative. …[33]
[32]Shorter Oxford English Dictionary on Historical Principles—Volume 2: N–Z (Oxford University Press, 6th ed, 2007) 1910.
[33]Ibid 1925.
In Re Daoust; Dobell v Dobell, Vaisey J comments on the meaning of ‘nephew’ and ‘niece’ as follows:
I have, in the first place, to consider what is in contemporary English the proper meaning of the word ‘nephew’ and of the word ‘niece’. There seems no doubt at all that the strict and proper meaning of the word ‘nephew’ is ‘son of a brother or sister’; and, similarly, ‘niece’ means, in the strict sense, ‘daughter of a brother or sister.’ But the meaning of each of these words is, in my judgment, susceptible of extension, having regard to the context and circumstances of the case, in two directions. First of all, the word may describe the child of a brother-in-law or of a sister-in-law; and, in the second place, I think that ‘nephew’ is often used to indicate a niece’s husband and ‘niece’ is often used to describe the wife of a nephew. … Unless compelled by context or circumstances, the court will always construe a class gift to nephews and nieces as a gift confined to children of a brother or sister, and the mere fact that the testator or testatrix has chosen elsewhere in the will erroneously to describe as a nephew or a niece some person not strictly and properly so related to him or her will not affect the general rule by admitting that person into the class. [34]
[34]Re Daoust; Dobell v Dobell [1944] 1 All ER 443, 444.
Consideration
At the time the testator executed his will, he had no nephews or nieces by consanguinity, but did have nephews and nieces by affinity, through his wife. They constitute a recognised class, albeit a secondary one, which is finite in nature and has been established through a genealogical investigation. In the absence of the nephews and nieces of the deceased’s wife being construed as the ‘nieces and nephews’ referred to in the deceased’s will, there are no other claimants to this class.
Although nephews and nieces by affinity are clearly afforded a secondary status, the expression ‘nieces and nephews’ is considered in terms of its ordinary meaning and this does not prevent them from attaining the status of a beneficiary in a will providing for the class of ‘nephews and nieces’ in general terms.
In the testator’s will, it is clear that the nephews and nieces of the deceased’s wife form a class that, while secondary in nature to nephews and nieces by consanguinity, are not precluded from being the target beneficiaries of the deceased’s residuary estate. In addition, the testator’s will appoints the defendant as an executor and trustee of his estate and describes him as ‘my nephew’. Although not always persuasive, it is clear that where the testator has chosen elsewhere in the will to refer to a nephew or niece by affinity as ‘my nephew’ or ‘my niece’, then this may translate into that nephew or niece, or the class of nephews and nieces by affinity, being admitted into the class proper for the purposes of the administration and distribution of the estate. A determination on this point would likely depend upon the purpose of the will and on the circumstances surrounding the will when the testator executed it. In this instance, the reference to the defendant as ‘my nephew’ elsewhere in the deceased’s will supports an inference that the deceased considered his wife’s nephews and nieces as his own, particularly when considered against the fact that he had no nephews or nieces by consanguinity.
A further consideration is the circumstance that the testator executed his will on 19 June 2014, some two months before his death on 15 August 2014. There is no suggestion of any testamentary incapacity on the part of the deceased and his will is accepted as a statement of intent regarding the disposition of his estate on his death. In this context, it may be inferred that he intended to distribute his estate in a particular manner on the basis that he went to the effort of making and executing his will a few months before his death.
As the deceased had no nephews or nieces by consanguinity, this is not a case in which it will be necessary to consider direct evidence of his intention as no equivocation has arisen on the language of the will. While the will contains the expression ‘nieces and nephews’, which is theoretically capable of being applied to both nieces and nephews by consanguinity and nieces and nephews by affinity, the absence of the former resolves any equivocation.
The absence of alternative aspirants making a claim upon the will, whether in relation to the class under consideration or otherwise, raises the undesirable spectre of an intestacy. In this instance, there is a readily definable class to which the expression ‘nieces and nephews’ applies, that is, to the nephews and nieces of the deceased’s wife. The inclination against intestacy provides strong support for construing the will in favour of the deceased’s nephews and nieces by affinity.
Conclusion
Having regard to context of the testator’s will and the circumstances surrounding the testator at the time of executing his will, the Court is satisfied that the use of the expression ‘my nieces and nephews’ by the testator in his will means the nieces and nephews of his wife.
Accordingly, the answers to the questions in the plaintiff’s originating motion relevant to the construction of clause 3(b) of the testator’s will are answered as follows:
Question (a): Does the expression ‘my nieces and nephews’ in the will of the late Lenin Martin Mas made 19 June 2014, mean the nieces and nephews of his wife, Helen.
Answer:Yes.
Question (b): If the answer to the question (a) is ‘yes’, should the gift contained in paragraph 3(b) of the will of the abovementioned deceased take effect in favour of the nieces and nephews of his wife, Helen.
Answer:Yes.
Benjamin order
A Benjamin order takes its name from the decision in Re Benjamin; Neville v Benjamin.[35] In that case, following enquiries made to ascertain his whereabouts, Philip David Benjamin was presumed dead, with the result that the benefits accruing to him under the deceased’s estate were redistributed to the other beneficiaries. Thus, where it is uncertain that a beneficiary to a deceased estate is alive, or available, then a court can order that the benefits accruing to that individual under the estate be distributed amongst the other beneficiaries.[36] Such an order is made in the absence of any evidence that the missing beneficiary survived the testator and protects an executor in the event that the date of the missing beneficiary’s death is later determined and it is found that the estate has been distributed incorrectly.[37]
[35][1902] 1 Ch 723.
[36]LexisNexis, Halsbury’s Laws of Australia (at 1 August 2013) Succession, ‘(G) Doctrine of Lapse on Gifts’ [395-1178]. See, eg, Re Dolling [1956] VLR 535 (Herring CJ).
[37]LexisNexis, Wills Probate and Administration Victoria (at 23 June 2018) Wills Commentary, ‘Survivorship’ [19,362].
In Lempens v Reid, Gray J summarised the nature of a Benjamin order as follows:
The effect of a Re Benjamin order is to enable the executor to distribute the estate to those members of the class that have been ascertained at the time of distribution, whilst ensuring protection of the executor if a person entitled to a portion of the estate subsequently appears. If such a person does appear, he or she is not entitled to make a claim against the executor for that portion but may claim against beneficiaries who have been paid incorrectly. If a Re Benjamin type order were considered appropriate in the circumstances of these proceedings, it may be necessary for the Court to order that further enquiries be undertaken, to ascertain whether members of the class can be located, prior to any distribution of the gift contained in the subject clause.[38]
[38]Lempens v Reid [2009] SASC 179 (2 July 2009) [32] (citations omitted).
In Gonzales v Claridades, Campbell J referred to Clark’s Parry & Clark on the Law of Succession, where it states:
The particular footing set out in the order is, of course, based on probable inferences from the proved facts, but the order does not constitute a positive declaration of rights (Hansell v Spink; Re Green’s Will Trusts 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, according, it does not prevent any missing beneficiary (if he subsequently appears) from pursuing his remedy against a recipient of the deceased’s assets. Sometimes a Benjamin Order is made after an inquiry by the court has proved inconclusive, but such an order may be made without any prior inquiry by the court if suitable advertisements for a missing beneficiary produce no claims, or even without any advertisements if the inference from the proved facts is irresistible (as in Re Green's Will Trusts …).[39]
[39]JB Clark (ed), Parry & Clark: The Law of Succession (Sweet & Maxwell, 10th ed, 1996) 471–2, quoted in Gonzales v Claridades (2003) 58 NSWLR 188, 208 [75] (citations omitted).
The evidence
On or about 15 October 2015, the plaintiff’s solicitors engaged the services of Worthington Clark Pty Ltd, a professional genealogy and asset research firm, to locate the contact details of the nieces and nephews of the deceased’s wife. The report by Worthington Clark is dated 5 October 2017 and was prepared by Charlotte Schaefer, a legal genealogist with Worthington Clark.
Ms Schaefer was able to establish the whereabouts of all but one of the nieces and nephews of the deceased’s wife. The missing nephew is Robert Donald Weston. The plaintiff took the following steps to ascertain his whereabouts:
(a) in letters dated 23 June 2017, 29 July 2017, and 23 August 2017 to the Department of Human Services, the plaintiff’s solicitor requested information relating to him;
(b) by letter dated 18 December 2017, a copy of orders in this proceeding made on 5 December 2017 was served on the Department of Immigration and Border Protection, in response to which the Department of Immigration and Border Protection advised by letter dated 15 January 2018 that they had undertaken a thorough search of their records, but were unable to find any records relating to Robert Donald Weston born 20 September 1964;
(c) following the action taken in (a) above, the plaintiff’s solicitor also served a copy of the orders dated 5 December 2017 on the Department of Human Services, under cover of a letter dated 18 December 2017, and accompanied by a request for information relating to Robert Donald Weston. No response has been received from the Department of Human Services; and
(d) follow up communications were subsequently sent to the Department of Human Services on 2 March 2018, 8 March 2018 and 6 April 2018. No response to this correspondence has been received.
In her report, Ms Schaefer notes that the whereabouts of Robert Donald Weston’s father, Alec Donald Weston, are unknown, however, she refers to ‘indications’ that Mr Alec Weston is still alive. Ms Schaefer states that ‘our client’s instructions were that Alec Weston is not prepared to assist in the search for Robert Donald Weston’. It is unclear how the plaintiff’s solicitors were able to give those instructions in circumstances where Ms Schaefer refers only to indications that that Mr Alec Weston may be alive.
There is also a suggestion in Ms Schaefer’s report that Robert Donald Weston might have been adopted, although the report does not indicate by whom. It is likely that he was adopted by Mr Alec Weston, as the birth certificate of Robert Donald Weston lists Mr Alec Weston as his father. In her report, Ms Schaefer states that she contacted family members regarding the whereabouts of Robert Donald Weston and that Kane Weston, his nephew, advised the plaintiff’s solicitors that Robert Donald Weston was adopted and may have changed his name back to his birth name. According to the report, there was an unsuccessful attempt to obtain the original birth certificate of Robert Donald Weston that would have issued prior to his adoption. Ms Schaefer contacted the Victorian Adoptions Registry for information, but it was unable to assist as only family members may make an application for adoption records. Ms Schaefer’s report also includes her efforts to obtain information regarding Robert Donald Weston from the family members, however, either the information was unverifiable or family members did not respond to her correspondence.
Ms Schaefer’s report compiles outlines of the searches undertaken to locate Robert Donald Weston, which involved the following:
(a) search database tools;
(b) electoral roll research (historical and current);
(c) property ownership searches, namely a National Property Ownership Report;
(d) bankruptcy search;
(e) director search;
(f) death notices, using the Ryerson Index, which returned two results for Robert Weston but, upon examination, the notices contained names of relatives that did not correspond with those of Robert Donald Weston;
(g) searches at the Birth, Death and Marriage Registries in all states and territories;
(h) searches at the Probate Registry of the Supreme Court of Victoria;
(i) cemetery searches;
(j) adoption records; and
(k) searches of records at Centrelink and Medicare. A formal application for information was made by letter dated 29 July 2016. The Department of Human Services responded by letters dated 19 May 2017 and 1 June 2017 advising that the request had been considered, but they were unable to disclose any information.
The letter from the Department of Human Services dated 19 May 2017 which, it is noted, was sent prior to the department’s receipt of the orders dated 5 December 2017, states inter alia:
The Department is unable to disclose the personal information of an individual, to a third person except in specific circumstances.
…
The Social Security (Public Interest Certificate Guidelines) (DSS) Determination 2015 provides that relevant information about a deceased person may be disclosed if it is necessary to help a person locate a relative or beneficiary of the deceased person and there is no reasonable ground to believe that the deceased person would not have wanted the relevant information disclosed.
The Department has reviewed your request and considers that as the request is not for information about the deceased person, it does not meet the Guidelines. The Department is therefore unable to disclose any protected information held on the Department’s records.
On 23 August 2017, Ms Schaefer sent a follow up letter to the Department of Human Services, which addressed the department’s letter of 19 May 2017, and which referred to the letter from the plaintiff’s solicitor dated 23 June 2017. In her letter, Ms Schaefer referred to a similar matter in which Worthington Clark had sought information from the department, and in which the information was released. In light of the apparent inconsistency, Ms Schaefer requested a response outlining the basis for the distinction or a reconsideration of her request for information required for the purpose of administering an estate.
In her report, Ms Schaefer concludes that:
Efforts to locate or otherwise find leads, locate or even narrow the search for Robert Donald Weston or establish his death event in Australia have been extensive and exhaustive. Ultimately, we have been unable to locate him or establish his death event.
The plaintiff submits that the efforts by his solicitors and Worthington Clark to locate or even narrow the search for Robert Donald Weston or establish his death in Australia have been extensive and exhaustive and he has not been located nor has it been established that he is alive.
Consideration
The genealogical search undertaken to locate Robert Donald Weston has been thorough, however, the inference to be derived from the failure to locate Robert Donald Weston cannot be described as ‘irresistible’, particularly in light of the remedies that might be pursued against the remaining beneficiaries should Robert Donald Weston or a child of Robert Donald Weston be alive and make a claim for his or her entitlement from the estate of the deceased.
It is unfortunate that the Department of Human Services has failed to respond to the plaintiff’s letter of 18 December 2017 that attached a copy of the orders dated 5 December 2017. The response from the department suggests that further information may be available concerning Robert Donald Weston. It is also unfortunate that family members contacted by Ms Schaefer were not prepared to assist Ms Schaefer in her search for Robert Donald Weston.
There is no indication in Ms Schaefer’s report that any advertisements were placed in any newspapers or in any other news media. Although newspapers have lost some of their influence as a focal point for the dissemination of information, they still represent a traditional medium through which such inquiries might be made. It would be helpful for an advertisement to be placed in major newspapers in the capital cities of each State or Territory and online.
It is not appropriate to make a Benjamin order where the evidence reveals gaps in the search for information for the whereabouts of Robert Donald Weston. Accordingly, the plaintiff should make further enquiries and searches consistent with these reasons and, if necessary, the Court will make orders to assist the plaintiff in making such enquiries and searches.
Accordingly, the answers to the questions in the plaintiff’s originating motion relevant to the application for advice concerning the whereabouts of Robert Donald Weston are answered as follows:
Question (c): Can the executor be entitled to cease any further searches for [Robert] Donald Weston [born 20 September 1964].
Answer:No, further searches and enquiries are required as set out in these reasons.
Question (d): If the answer to the question [(c)] is ‘yes’, should the executor be at liberty to distribute or apply any share of the estate to which [Robert] Donald Weston may be entitled to the remaining ‘nieces and nephews’ of his wife Helen.
Answer: Not applicable.
The parties are to provide minutes of orders reflecting the Court’s determination of the questions arising in the administration of the deceased’s estate.
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