The Estate of Denise Daughne Kelpe

[2019] NSWSC 1226

Supreme Court

New South Wales

Medium Neutral Citation:	The Estate of Denise Daughne Kelpe [2019] NSWSC 1226
Hearing dates:	16 September 2019
Date of orders:	16 September 2019
Decision date:	16 September 2019
Jurisdiction:	Equity
Before:	Parker J
Decision:	The plaintiff is justified in distributing the estate of the late Denise Daughne Kelpe who died on 11 November 2017 and whose estate is the subject of the grant of letters of administration with the will annexed issued by the Court on 14 November 2018, so far as concerns the shares of residue given under Clause 3(e)(ii) of the said will to “Catherine G W McLenalan” and “Arthur H H Tyrer”, to the Crown as bona vacantia.
Catchwords:	TRUSTS AND TRUSTEES – judicial advice – Re Benjamin application for directions as to the distribution of the estate – whether four-person residuary bequest a class gift – where four persons named in bequest have no identifying characteristic – will created prior to operation of Succession Act 2006 (NSW)– whether Crown entitled to two shares falling into intestacy – sufficiency of administrator’s investigations.
Legislation Cited:	Succession Act 2006 (NSW), s 42
Cases Cited:	Re Benjamin [1902] 1 Ch 723 Estate of Meyerfeld [2019] NSWSC 156 The Estate of the Late Bernard Sullivan Smith [2018] NSWSC 97
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Vera Antonia Konsuo (Administrator)
Representation:	Counsel: J Gatland   Solicitors: Jonathan Abbott & Associates (Administrator)
File Number(s):	2017/378290
Publication restriction:	Nil

Judgment – EX TEMPORE

Revised and reissued 19 September 2019

1. This is an application concerning the estate of the late Denise Daughne Kelpe, who died in November 2017 at the age of 93. The application is for directions as to the distribution of the estate of a type often known as a Re Benjamin application (Re Benjamin [1902] 1 Ch 723). The applicant is Vera Antonia Konsuo. She was appointed as Administrator of the estate, with the deceased's will annexed, by order of the Court in November 2018.

2. The deceased was born in New Zealand in September 1924 but lived in New South Wales from 1948 onwards. She apparently never married, legally or de facto, or had children. The will which was the subject of the administration order was made in February 1996, when the deceased was 71 years old.

3. The application arises out of one of the gifts of residue. The will relevantly provided:

As to the remaining sixty per cent (60%) I give [SIC] to CATHERINE G W McLENALAN of [Honolulu, Hawaii], ANN RUPRECHT of [Kirribilli, New South Wales], ARTHUR H H TYRER of [Cammeray, New South Wales] and VERA A KONSUO [of Monterey, New South Wales] in equal shares.

4. I will refer to this as the four-person residuary bequest.

5. Ms Konsuo and Ms Ruprecht are available to receive the gifts in their favour. Mr Tyrer is dead. The administratrix's legal representatives were not able to locate a person by the precise name "Catherine G W McLenalan" but evidence showed the intended reference was to Catherine Winx McLenahan, who died in Hawaii in July 2010.

6. The first question is whether the four-person residuary bequest was a "class gift" so that the two survivors receive the shares of the two decedents. A situation similar to that in this case arose in The Estate of the Late Bernard Sullivan Smith [2018] NSWSC 97, a decision of Slattery J. In that case the gift was in the following terms:

I leave all my real estate and personal property to be divided in equal shares between my brothers and sister, namely [three names] and my wife's brother and sister, namely [two names].

7. At [13] to [17] Slattery J reviewed the principles of construction applicable to such a gift. Ordinarily, a gift in such terms is not construed as a gift to a class. His Honour said at [18]:

Nothing in the will rebuts the prima facie rule of construction in this case. Indeed, obstacles exist to inferring that the five persons named in the will constitute a single class. Three of the five are siblings of the testator. Two of the five have no blood relationship to the testator but were his in-laws. This composite set of relationships does not readily indicate a single class was intended to benefit.

8. His Honour considered potential application of the Succession Act 2006 (NSW), s 42, which provides as follows:

Construction of residuary dispositions

(1)   A disposition of all, or the residue, of the estate of a testator that refers only to the real estate of the testator, or only to the personal estate of the testator, is to be construed to include both the real and personal estate of the testator.

(2)   If a part of a disposition in fractional parts of all, or the residue, of the testator’s estate fails, the part that fails passes to the part that does not fail, and, if there is more than one part that does not fail, to all those parts proportionally.

(3)   This section does not apply if a contrary intention appears in the will.

9. But his Honour observed that the provision is only applicable to wills which are made after the commencement date of the relevant provision, which was 1 March 2008. He concluded (at [22]) that although the court generally leads against a construction resulting in intestacy, the result on the facts was clear. The testator in that case did not make a class gift.

10. The same reasoning applies here. In particular, the four persons named in the bequest have no identifying characteristic apart (one assumes) from the testator's desire to benefit them. As in Smith, the will was made before March 2008 and s 42 of the Succession Act is not applicable.

11. Two shares under the four-person residuary gift therefore fall into intestacy. This leads to the next question, which is who is to inherit those two shares as a result of the intestacy. As I have mentioned, the evidence indicates that the deceased never married and had no children. The evidence shows that searches have been done for those who would be entitled to receive the gift, in accordance with the relevant provisions of the Succession Act, upon intestacy.

12. Not surprisingly, given the deceased's age when she died, she was predeceased by her parents and grandparents. She had no siblings. Searches have been done for any uncles, aunts or first cousins of the deceased. Although the deceased's father was one of nine children and the deceased's mother was one of three children, the evidence shows that all of the deceased's parents’ siblings and all of their children predeceased the deceased. The result is that, on the evidence before the court, the Crown is entitled to the two shares under the four-person residuary legacy which fell into intestacy.

13. In Estate of Meyerfeld [2019] NSWSC 156, I said that in a Re Benjamin application the Court is simply giving directions to the Trustee so as to sanction a distribution of property proposed by the Trustee in the light of the Trustee's inquiries. Strictly speaking, the Court is not finally determining the identity and entitlement of the beneficiaries, and the Court's decision would not be determinative if further property of the deceased came to light and needed to be distributed. There is always the possibility that the information before the Court is incomplete and there may be persons who have an interest in the estate who have not been identified.

14. But in the present case there is no reason to think that the information before the Court is incomplete, and I am satisfied that the Administrator's investigations are sufficient in the circumstances.

15. The Court orders:

1.   An order that in the events which have happened the plaintiff is justified in distributing the estate of the late Denise Daughne Kelpe who died on 11 November 2017 and whose estate is the subject of the grant of letters of administration with the will annexed issued by the Court on 14 November 2018, so far as concerns the shares of residue given under Clause 3(e)(ii) of the said will to “Catherine G W McLenalan” and “Arthur H H Tyrer”, to the Crown as bona vacantia.

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Decision last updated: 19 September 2019