Estate of Cheesman

[2025] NZHC 2199

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-000893

[2025] NZHC 2199

UNDER

Section 136 of the Trusts Act 2019

IN THE MATTER

of the estate of CHRISTOPHER VAUGHAN CHEESMAN

BETWEEN

BRYCE VAUGHAN CHEESMAN and BRETT VIVIAN ABRAHAM, as

administrators in the estate of CHRISTOPHER VAUGHAN CHEESMAN

Applicants

Hearing:	On the papers
Appearances:	W M Patterson and L Dixon for Applicants
Judgment:	6 August 2025

JUDGMENT OF ANDERSON J

This judgment was delivered by me on 6 August 2025 at 4.00 pm pursuant to r 11.5 of the High Court Rules 2016.

………………………………

Registrar/Deputy Registrar

Solicitors:
Patterson Hopkins, Auckland

RE ESTATE OF CHRISTOPHER VAUGHAN CHEESMAN [2025] NZHC 2199 [6 August 2025]

[1]    Christopher Vaughan Cheesman died intestate in 2017 with no immediate family.

[2]    Under the statutory trusts that apply on intestacy, the deceased’s estate fell to be distributed among his maternal and paternal cousins (or, if they had died before the deceased, their children and more distant issue).1

[3]    One of the deceased’s cousins, Lance Cooke, cannot be located. He is not believed to have had any children. The net value of Mr Cheesman’s estate was around

$1.5 million. This has now been fully distributed for those entitled by the statutory trusts  except  for  Mr  Cooke’s  share,  which  is  currently  worth  approximately

$376,337.87 with accrued interest.

[4]    The administrators of the estate are two of the  deceased’s  first  cousins. They apply without notice under s 136 of the Trusts Act 2019 for orders authorising them to distribute Mr Cheesman’s estate as if Mr Cooke died before the deceased.

The law

[5]    Under section 136 of the Trusts Act 2019 the court may, on application by a trustee, make an order authorising the trustee to distribute trust property as if a potential beneficiary died before a date or an event specified, here the death of the testator.

[6]The court may make an order under s 136(1) only if it is satisfied that:2

(a)reasonable measures have been taken to bring to the notice of the potential beneficiary their potential beneficial interest;

(b)at least 60 days have passed since the last of those measures was taken; and

1      Administration Act 1969, ss 77 and 78.

2      Trusts Act 2019, s 136(2).

(c)no potential beneficiary with respect to whom an order is sought has come to the attention of the trustee as a result of those measures, or the claim of any such beneficiary may be disregarded in the circumstances.

[7]    In substance, s 136 is a codification of the Benjamin order jurisdiction under which the Court has broad powers to approve distributions by trustees where beneficiaries cannot be traced.3 It replaces s 76 of the Trustee Act 1956, which was considerably more prescriptive as to what steps were required to be taken to find a potential beneficiary.

[8]    The key issue under s 136(2) is whether the trustees have taken reasonable measures to bring the interest of the beneficiary to their attention.4 What constitutes “reasonable measures” is a factual issue. An aspect of the factual context, as to what are reasonable measures, is the size of the estate or share in question.

Background

[9]    Lance Cooke, born in 1953, was the only child of Mr Cheesman’s maternal aunt.

[10]   The administrators have little first-hand knowledge of Mr Cooke. The material provided to the Court in the form of prior affidavits identifies that in August 1983, Mr Cooke’s father (now deceased) made an application for leave to swear to his son’s death after the latter disappeared at Christmas 1975. That application was declined by the Registrar, who was not satisfied there were no other reasons which  explained  Mr Cooke’s lack of contact with his family. Information at the time suggested that Mr Cooke had spent some time in Australia.

[11]   The solicitor acting on the application for Mr Cooke’s father, David Asbury, deposes in an affidavit filed in support of the present application that Mr Cooke’s father had intended to appeal the decision, but told Mr Asbury that he did not pursue this because Mr Cooke reappeared. That apparent contact, in or about 1983, is the last

3      Re Benjamin [1902] 1 Ch 723.

4      Case law under s 136 includes Hodgson v Hodgson [2021] NZHC 906, (2021) 5 NZTR 31-010; and Tyson v Beaver [2024] NZHC 278.

known appearance of Mr Cooke. Wayne Hewitt, one of the administrators, deposes that to the best of his knowledge and belief Mr Cooke has not been heard from by any family member since the early 1990s at the latest.

[12]   The material provided to the Court also shows that Lance Cooke previously owned two properties in Avondale and East Coast Bays. These were sold in 1977 and 1994 respectively. The first was sold at a mortgagee sale after the mortgage went into default. The second was sold for non-payment of rates.

[13]   To try to bring Mr Cooke’s potential share of the estate to his attention, the administrators advertised in the New Zealand Herald and Sydney Morning Herald on three occasions. These advertisements have produced no response.

[14]   The administrators have also established that there is no evidence from the Births, Deaths and Marriages registry suggesting that Mr Cooke has died, nor of any record of him having children.

[15]   In response to a minute from the Court that further steps would need to be taken to locate Mr Cooke, the administrator’s solicitors obtained a further report from a private investigation firm. The investigators report that they undertook advanced internet and media coverage searches, including Facebook searches. They also undertook searches of Australian Electoral Commission records, Australian property records (other than Australian Capital Territory and Northern Territory), Australian rental records, ABN public number databases, the Australian Business Register, ASIC directorship listings, e-Court records, occupational licences and public death record searches. None of these searches resulted in locating Mr Cooke

[16]   The investigator’s responsive searches of Facebook identified two Facebook profiles in Australia for a Lance Cooke but neither of them matched someone born in around 1953. The investigator also carried out searches of Facebook profiles in America. However, the name “Lance Cooke” is so common there that the investigator reported that in his opinion it would be challenging and potentially futile to pursue that avenue of investigation.

Decision

[17]   I am satisfied on the evidence in support of the application as summarised above that the steps taken by the administrators are “reasonable measures” commensurate with the size of the estate to locate Mr Cooke and hence to bring to Mr Cooke’s notice his potential interest in the deceased’s estate.

[18]   It has been many years since the administrators or anyone else in the deceased’s family has heard from Mr Cooke. The previous forced sale of his property in East Coast Bays in 1994 did not prompt Mr Cooke to re-emerge.

[19]   The other two elements of s 136 are satisfied. At least 60 days have now passed since the last of the measures taken to find Mr Cooke were undertaken. Mr Cooke has not come to the attention of the trustee as a result of the measures taken.

[20]   Accordingly, it is appropriate that an order be  made under s 136 of the  Trusts Act.

Result and orders

[21]   I am satisfied that orders can be made as sought under s 136 of the Trusts Act 2019.

[22]I make orders:

(a)authorising the applicants to distribute that share of the deceased’s estate which would otherwise be distributed to Lance Cooke as if he had died before the death of the deceased; and

(b)authorising the applicants to deduct the costs of and incidental to the application from Mr Cooke’s share of the estate before distributing it to those properly entitled.

Anderson J