STATE TRUSTEES LIMITED (as trustee of the estate of THOMAS MILLER)

[2011] VSC 225

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
PRACTICE COURT

No. 2223 of 2011

IN THE MATTER of an application by STATE TRUSTEES LIMITED (as trustee of the estate of THOMAS MILLER) Plaintiff

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JUDGE:	Hollingworth J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 May 2011
DATE OF JUDGMENT:	26 May 2011
MEDIUM NEUTRAL CITATION:	[2011] VSC 225

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Estates – Application pursuant to rule 54.02 for the determination of questions arising in the administration of an estate – “Benjamin” order – Administration and Probate Act 1958 (Vic) s52(1)(f)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R B Phillips	State Trustees Limited, Legal Services

HER HONOUR:

1. This is an application by State Trustees Limited (“State Trustees”), the administrator of the estate of Thomas Miller, for orders that:

(a)       In the absence of any evidence that the father of the deceased survived him or, having pre-deceased him, died with any other issue, it is justified in distributing the estate of the deceased on that basis; and

(b)      In the events that have happened, State Trustees is justified in distributing the net residuary estate equally between the estates of two half-sisters of the deceased, in the absence of evidence of any nearer next of kin surviving the deceased.   

1. The deceased was born in 1889 in Exeter, Devon, England and died in Melbourne on 10 April 1978, at the age of 88.

1. His last will was dated 11 November 1968.  It left the residuary estate to his son, Gilbert Frederick Thomas Miller, who predeceased him, and there was no gift over.  Letters of administration were granted to State Trustees on 25 January 1995, the executors named in the will having survived the deceased, but having died without proving the will.

1. The current value of the estate is approximately $416,000.

1. Karen Stewart, a Senior Genealogical Researcher employed by State Trustees, has been engaged in establishing the deceased’s next of kin.  The deceased was widowed at the time of his death.  He did not have any other children in Victoria between 1901 and 1978, apart from his son, Gilbert Frederick Thomas Miller.   

1. The Administration and Probate Act 1958 (“the Act”) provides a scheme of distribution for a deceased’s residuary estate, where the deceased dies without leaving a valid will or (as is the case here) where the will does not effectively dispose of all of the residuary estate.

1. Where a person dies intestate, and is not survived by a spouse or domestic partner, parents, children or more remote issue, then s 52(1)(f) of the Act directs that the estate be distributed amongst the next of kin who are in equal degree.

1. Ms Stewart’s investigations have established that there was no mother, spouse, child or more remote issue, alive at the time of the deceased’s death. 

1. I am satisfied on the balance of probabilities that the deceased’s mother, Louisa Alice Luscombe (nee Oatway), was unmarried when the deceased was born.  The identity of the deceased’s father has not been able to be established, despite thorough investigations; this means it has not been possible to identify any other children or more remote issue of the deceased’s father.  Given that the deceased was 88 years old when he died, his father would have had to be in the order of 110 years old or more, to have survived the deceased; that seems highly improbable.

1. However, the deceased was survived by two half-sisters, Gladys Elsie Luscombe and Zena Ivy Vera Hext (nee Luscombe); they have both since died.

1. State Trustees seeks what is known as a Benjamin order, named after the case of In Re Benjamin.[1]  In that case, the testator had 13 children, of whom 12 survived him.  One son was missing, having disappeared nine months before the testator died.  After an inquiry, the Master was unable to certify whether the son was living or dead.  The trustees sought and obtained permission to distribute the estate on the basis that the son must be presumed to have predeceased the testator.  As Ross J noted in Re Meyerstein[2], such orders are regularly made in such circumstances.[3]

   [1][1902] 1 Ch 723.

   [2][2009] VSC 564.

   [3]His Honour referred to Re Aldersley [1905] 2 Ch 181, Re Hickey [1925] VLR 270, Re Dolling [1956] VLR 535, and Re Albert [1967] VR 875.

1. I am satisfied on the evidence before me that the deceased’s father must be presumed to have died before the deceased, and that he died without leaving any issue other than the deceased.

1. I find that the next of kin entitled under s 52(1)(f) of the Act to participate in the distribution of the residuary estate were Gladys Elsie Luscombe and Zena Ivy Vera Hext (nee Luscombe). I am satisfied that it would be appropriate to distribute the estate of the deceased to the estates of those half-sisters.

1. The costs of this application are to be paid or retained out of the estate.

1. The estate of the deceased has been administered, in that all of the assets have been collected and realised, and all debts and liabilities have been paid and discharged.  Subject to providing for the costs of this proceeding, and paying any current income tax payable by the estate, all that remains to be done to complete the administration is to distribute the net funds to the recipients.

1. State Trustees has been the administrator of this estate since 1995.  Even allowing for the fact that genealogical research can be time-consuming, no real explanation has been given to the court as to why it has taken more than 15 years to make this application.  That is not a satisfactory position.  The court expects that State Trustees will now act promptly and take all reasonable steps necessary to identify the persons entitled to the estates of the two half-sisters, and to distribute the estate, forthwith.

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