Solicitors:
NSW Trustee and Guardian
File Number(s): 2014/309993
[2]
Judgment
HIS HONOUR: The plaintiff in these proceedings is the NSW Trustee and Guardian. On 7 November 2007 the Public Trustee was granted letters of administration of the estate of a person who died on 20 August 2007 to whom I will refer as "the deceased". Because two of the persons involved in the application are, or may have been, incapable persons, the privacy of the various individuals concerned will be protected in these reasons by the use of initials.
The deceased died intestate. She had no spouse and no issue. Her parents, if alive at her death, were entitled to her estate on intestacy.
The NSW Trustee filed a summons on 22 October 2014 seeking an order for the determination by inquiry of the identity of the next of kin of the deceased. The deceased's mother was readily identified and half of the net distributable estate has been distributed to her. Further costs have been incurred in seeking to ascertain whether the deceased's father survived the deceased, and if so, to identify him. The costs of those inquiries are properly charged on the deceased's father's share of her estate.
The deceased was born on 28 April 1959. Her mother is known. The birth certificate did not disclose the identity of her father. The deceased's mother has sworn to the deceased's father's name. She advised an officer of the Public Trustee that to the best of her knowledge the father had died in a truck accident at Iluka on the New South Wales north coast some time between 1965 and 1975. It appears that the father had little or nothing to do with the deceased and his relationship with the mother was of only short duration.
The NSW Trustee was unable to obtain any corroboration that the father had died. No death was registered in New South Wales, Victoria or Queensland. Attempts to locate what was said to have been a newspaper report of the alleged accident causing death were unavailing.
The mother informed an officer of the Public Trustee that she knew the father's mother's name only as Mrs [B] and she understood that Mrs [B] lived in Yarra Bay in 1958 when she briefly met her.
The NSW Trustee has ascertained that a man bearing the name given by the mother had changed his name to [W]. The change of name was registered on his birth certificate as taking place on 26 September 1973 (though it appears it was registered on 30 July 1973 in Queensland). The birth certificate of Mr [W] records his parents as being Mr and Mrs [B] of Yarra Bay. The birth date of Mr [W] is consistent with information provided by the mother as to the age of her father.
The plaintiff has ascertained that Mr [W] resides in a nursing home in Queensland. He married on 15 December 1973. His wife holds his power of attorney.
In 2011 and 2012 the plaintiff wrote to the aged care centre where Mr [W] was believed to reside and also wrote to Mr [W] and to his wife. There was no response to that correspondence.
The delay in pursuing these inquiries between 2008 and 2014 has not been explained, but is not relevant to the present application. The plaintiff's initial position was that the identity of the deceased's father could not be confirmed and his death or survival could not be proven. The plaintiff initially submitted that as notice of its intention to distribute the estate had been duly published and the correspondence to Mr [W] and his wife was unanswered, the remaining balance of the estate should be distributed to the deceased's mother.
When the matter came before me in the applications list I was not prepared to make that order. I directed that further attempts to communicate with Mr [W] or the nursing home or his wife be made by someone attempting to speak either to Mr [W], if he had capacity, or to his wife. That has now been done. The information obtained is that Mr [W] suffers from advanced dementia and is not capable. His wife advised an officer of the plaintiff of the date of birth of her husband. The date given coincides with the birth date on the birth certificate that has been tendered in this case. Mrs [W] confirms that Mr [W] had changed his name through a solicitor in about 1972 or 1973 and was formerly called [B]. She did not know of the deceased and her husband had not discussed his past with her. She has provided a copy of the power of attorney whereby Mr [W] has appointed her as his attorney.
It is clear with reasonable certainty that Mr [W] is the father of the deceased. All the information provided to the plaintiff by the deceased's mother points to the father as being the man now known as Mr [W].
The deceased's mother had foreshadowed that if the father were alive she would wish to make a claim on the estate for "back maintenance" for the deceased. She has submitted a claim for "back pay for maintenance which had never been paid for [the deceased], who was a special needs child … Not one cent was ever paid by [B]."
In a letter dated 12 March 2015 the NSW Trustee had written to Mrs [W] explaining the nature of these proceedings and requesting confirmation by 27 March 2015 that:
[W] was formerly known as [B];
she holds a power of attorney for [W]; and
in the event [W] was formerly known as [B] whether he makes any claim on the estate.
On 19 March 2015 the NSW Trustee returned a telephone call to Mrs [W], during which Mrs [W] provided information about Mr [W] which corroborated that he was the same person as [B].
On 27 March 2015 an officer of the NSW Trustee (not the officer handling this matter) received a telephone call from a woman who identified herself as Mrs [W] who said that she was calling in response to a letter from the NSW Trustee dated 20 March 2015 regarding the estate. According to the file note of the officer from the NSW Trustee who took the phone call on 27 March, "She said do not want to proceed for share in the estate."
Irrespective of whether the deceased's mother has a valid claim for unpaid maintenance against the share of the estate to which Mr [W] is entitled, it is perfectly understandable that Mr [W], if he were capable, or Mrs [W] as his attorney, would not wish to claim a share of the estate. He has no moral claim to it.
Provided the disclaimer of the person who described herself as Mrs [W] is genuine, the NSW Trustee is entitled to act on it. On the other hand if the disclaimer is not genuine and Mr [W], through his attorney, makes a claim on the estate, then prima facie the outstanding share of the estate (after the deduction of the NSW Trustee's costs and expenses) should be remitted to him or to Mrs [W] as his attorney. However, that is subject to any claim to which the deceased's mother might be entitled.
In Application of Valda Ann Haberfield & Anor [2014] NSWSC 1421 I considered the potential interrelationship between ss 60 and 63 of the Trustee Act 1925 (NSW) and ss 92 and 93 of the Probate and Administration Act 1898 (NSW). I consider that the NSW Trustee is entitled to the protection of judicial advice before making a distribution of the balance of the estate. The estate is small. The NSW Trustee will be entitled to be indemnified out of the estate for its costs and expenses and there is a risk that the balance of the estate might be wholly dissipated if any substantial further costs are incurred arising from litigated claims. Nonetheless, if Mrs [W] does not confirm her advice that on behalf of her husband she disclaims his share of the estate, but instead claims that share, and if the deceased's mother maintains her claim against that share of the estate, it is inevitable that the claims will have to be dealt with by the Court.
It appears to me that the NSW Trustee is entitled to proceed on the basis that the telephone advice received that Mrs [W] on behalf of her husband disclaims his share of the estate is genuine, that the disclaimer is effective, and that the NSW Trustee would be justified in distributing the balance of the estate to the deceased's mother. That, however, is subject to formal notice being given to Mrs [W] of the intended distribution of the estate and to her either confirming in writing that she has no opposition to the distribution, or her not making any application to the Court on behalf of her husband for an order or direction of the Court for payment of the balance of the estate. That procedure would be in accordance with s 63 of the Trustee Act which relevantly provides:
"63 Advice
(1) A trustee may apply to the Court for an opinion advice or direction on any question respecting the management or administration of the trust property, or respecting the interpretation of the trust instrument.
(2) If the trustee acts in accordance with the opinion advice or direction, the trustee shall be deemed, so far as regards the trustee's own responsibility, to have discharged the trustee's duty as trustee in the subject matter of the application, provided that the trustee has not been guilty of any fraud or wilful concealment or misrepresentation in obtaining the opinion advice or direction.
…
(8) Where the question is who are the beneficiaries or what are their rights as between themselves, the trustee before conveying or distributing any property in accordance with the opinion advice or direction shall, unless the Court otherwise directs, give notice to any person whose rights as beneficiary may be prejudiced by the conveyance or distribution.
(9) The notice shall state shortly the opinion advice or direction, and the intention of the trustee to convey or distribute in accordance therewith.
(10) Any person who claims that the person's rights as beneficiary will be prejudiced by the conveyance or distribution may within such time as may be prescribed by rules of court, or as may be fixed by the Court, apply to the Court for such order or directions as the circumstances may require, and during such time and while the application is pending, the trustee shall abstain from making the conveyance or distribution.
(11) Subject to subsection (10), and subject to any appeal, any person on whom notice of any application under this section is served, or to whom notice is given in accordance with subsection (8), shall be bound by any opinion advice direction or order given or made under this section as if the opinion advice direction or order had been given or made in proceedings to which the person was a party."
If any application is made by Mrs [W] to the Court for distribution of the share of the estate to Mr [W], then the NSW Trustee is required by s 63(10) to abstain from making a distribution of the estate. In that event it will be necessary for the NSW Trustee to join the deceased's mother so that her claim on the estate can be determined.
For these reasons I make the following orders:
The plaintiff be advised that it would be justified in distributing the balance of the estate of the late [SGB] ("the deceased") to the deceased's mother after deducting its proper charges, costs and expenses, unless an application is made by or on behalf of Mr [W] within the time referred to in order 3 for an order that the balance of the estate be distributed on any other basis.
Direct that the plaintiff, before distributing the balance of the estate, is to give notice to Mrs [W] as attorney for Mr [W] of this advice and is to provide a copy of these reasons to Mrs [W].
Fix the time of one calendar month after the giving of notice pursuant to order 2 as the time by which any application is to be made to the Court by Mr [W], or by Mrs [W] on behalf of Mr [W], for any order for the distribution of the estate to be made on any other basis.
Order that if any such application is made, it be served on the plaintiff within the same period of one calendar month after the giving of notice pursuant to order 2.
Advise the plaintiff that it would be justified in distributing the estate to the deceased's mother prior to the expiry of the period referred to in order 3 if it receives written confirmation from Mrs [W] that as attorney for Mr [W] she disclaims his share of the estate, or after the expiry of that period if no application of the kind referred to in order 2 has been served on it.
Order that the costs of the plaintiff on the indemnity basis be paid out of the estate.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 09 April 2015