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[2009] VSC 564
plaintiff. Application granted: the court authorised distribution of the net estate to the named first cousins once removed (the fifth degree next of kin identified in the schedule), ordered the costs of the...
State Trustees, as administrator of Mr Meyerstein's intestate estate, sought permission to distribute the residuary estate to identified first cousins once removed after extensive genealogical searches found no nearer relatives. The court applied the modified West v Weston test, was satisfied on the balance of probabilities that the substantial majority of beneficiaries had been identified and that no reasonable further inquiries would help, and authorised distribution to the named beneficiaries, with costs to be paid from the estate.
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1,802 words · generated 17/06/2026
Werner Ludwigk Meyerstein died in Melbourne on 21 February 2001, having been born in Germany in 1912. His will had effectively failed to dispose of the residuary estate because the sole named beneficiary (his wife) predeceased him. Letters of administration were granted to State Trustees Limited on 4 June 2001 and the estate has a current value recorded in the judgment of $2,334,798.53 [1]–[3], [24].
1 cited instrument linked from this judgment.
State Trustees undertook extensive genealogical enquiries (from 2003) to identify the deceased's next of kin. Mr William Corbett, a genealogical researcher engaged by State Trustees, and external researchers in Italy, Germany and Poland searched archives in Hanover, Poland and Berlin. Those searches were made more difficult because the deceased's family was Jewish and a number of family members perished during the Holocaust [4]. The investigations established there were no surviving spouse, issue (descendants), siblings, nephews or nieces, great-uncles or aunts, or nearer cousins; the closest identified next of kin were fifth degree relatives, namely first cousins once removed, twelve persons identified and charted in the Corbett affidavit annexure [12], [23].
State Trustees applied under the court's practice regime (Rule 54.02) for an order justifying distribution of the residuary estate to those identified fifth degree relatives. In the alternative the administrator sought an order that monies be paid into court and it be discharged from further responsibility [1]. Ross J heard the application and ordered that the estate be distributed to the named first cousins once removed and that the costs of the application be paid or retained out of the estate [25], [26].
Three legal axes determined the outcome.
Statutory framework. Section 52(1)(f) of the Administration and Probate Act 1958 prescribes that where there are no nearer relatives such as spouse, children or issue, the residuary estate shall be distributed among the next of kin who are in equal degree [9]. In this case the relevant class comprised fifth degree relatives who were alive on the date of death [12], [23].
The practical problem of ascertaining a widely dispersed class. Where the class of beneficiaries is large and dispersed, the administrator faces the question of certainty: must every member be identified and located before distribution? The court drew on authority establishing mechanisms to cope with missing or unlocatable beneficiaries. Ross J examined West v Weston and related authorities and adopted the modified formulation endorsed by Young J in West v Weston. That formulation permits distribution where, within a reasonable time after the gift arises, the court is satisfied on the balance of probabilities that the substantial majority of beneficiaries have been ascertained and that no reasonable enquiries would improve the situation [20].
Application of the rule to the specific evidence. The administrator presented detailed genealogical investigations showing the absence of nearer kin and locating twelve fifth degree relatives. Ross J accepted that further global advertisement would be impractical and unlikely to locate additional beneficiaries given the historical dispersion and record destruction, and concluded that on the balance of probabilities the substantial majority had been ascertained and no reasonable additional enquiries would be likely to identify further beneficiaries [4], [15], [22]. For these reasons Ross J considered a next-of-kin inquiry by advertisement to be an 'empty charade' in the circumstances and authorised distribution, effectively the grant of a Benjamin-style order, and directed costs be borne by the estate [15], [16], [21], [25], [26].
The judgment thus combines statutory interpretation (s 52(1)(f)) with the court's equitable and pragmatic powers to permit distribution where further searching would be futile or disproportionate.
Before the pivotal authorities discussed, the classical common-law and equitable approach emphasised a need for certainty of beneficiaries for the operation of a trust or for accurate distribution under an intestacy. English authorities had recognised that absolute completeness in identifying a class may be unattainable in practice, and mechanisms such as inquiries and Benjamin orders had long been used to address missing beneficiaries (Re Benjamin and subsequent cases) [16]–[17].
West v Weston (1998) addressed both the extent of required certainty for beneficiary classes and practical procedures for finding beneficiaries. Young J formulated a pragmatic, modified rule permitting distribution when the court is satisfied that the substantial majority have been ascertained and no reasonable inquiries would help [20]. Ross J expressly adopted and applied that modified rule in Re Meyerstein as the appropriate standard for Australian conditions [21].
After this decision, within the confines of the Re Meyerstein judgment, the law is applied in the following way: where an administrator can show on the balance of probabilities that the substantial majority of a class have been identified, and that further reasonable enquiries would not improve identification, the court may authorise distribution to those identified beneficiaries without requiring global advertisements or complete lists. The judgment thus confirms and applies the West v Weston approach to difficulties of class ascertainment in intestacies under s 52(1)(f) of the AAPA 1958.
Note: the present judgment itself does not record subsequent appellate treatment or further developments after 2009; the before-and-after description above is confined to the authorities expressly discussed in the judgment.
Statutory direction for distribution: the text of s 52(1)(f) is quoted in the judgment and establishes the default rule that, absent nearer relatives, the estate is shared equally among the next of kin of equal degree [9].
Plain English: If there are no closer relatives (spouse, children, parents, etc.), the residuary estate is to be split equally among the nearest surviving relatives in the same degree of relationship.
Young J's modified rule (quoted at [20]):
"The rule will be satisfied if, within a reasonable time after the gift comes into effect, the court can be satisfied on the balance of probabilities that the substantial majority of the beneficiaries have been ascertained and that no reasonable inquiries could be made which would improve the situation."
Plain English: The court does not demand a perfect list. If, after reasonable searching, the court believes it has identified most of the people entitled to share and thinks that any further searches would not help, the court can allow the estate to be distributed.
Ross J's application of that rule (quoted at [22]):
"I am satisfied that the evidence shows that, on the balance of probabilities ... (a) if not all, then at least the substantial majority of the beneficiaries have been ascertained; and (b) there [are] no further reasonable inquiries which should be made..."
Plain English: The court accepted the genealogical evidence and found it more likely than not that most of the eligible relatives had been found, and that further reasonable efforts would not locate additional people who should share.
Dispositive order (quoted at [25]):
"I am satisfied that it would be appropriate to distribute the estate of the Deceased to his first cousins once removed who are named in the schedule..."
Plain English: The court authorised the administrator to pay the estate to the identified first cousins once removed.
This decision is instructive for administrators and practitioners when the following features are present:
An intestacy where no nearer relatives exist (no spouse, issue, parents, siblings, nephews/nieces, closer cousins) and the statutory class falls at a distant degree (here fifth degree) [9], [12].
Extensive genealogical and archival searches have been undertaken, including overseas research where appropriate, and the administrator can produce evidence of those enquiries (affidavits, charts, annexures identifying persons) [4], [23].
Practical obstacles to locating further beneficiaries exist such as geographical dispersion, historical events (for example wartime destruction of records), or absence of any realistic means to notify large numbers of dispersed potential beneficiaries by advertisement [4], [15].
The administrator seeks an order under the court's practice rules to permit distribution rather than paying the funds into court or remaining indefinitely liable [1].
Where those features are present, the court is likely to apply the West v Weston modified test and may authorise distribution to those identified, provided the 'substantial majority' threshold on the balance of probabilities is met and further reasonable enquiries are unlikely to help.
The Re Meyerstein judgment itself applies and explains existing authorities (West v Weston, Re Benjamin, Re Saxone etc.). The judgment does not record any subsequent appellate treatment or decisions that have applied or distinguished Re Meyerstein after 2009. Consequently, from the text of this judgment alone one cannot assert how later courts have treated this decision. Practitioners should therefore check more recent case law and practice notes for any developments or refinements post-2009 when applying this decision.
The judgment points to several areas where practice and law may continue to raise questions:
What precisely constitutes the 'substantial majority' of beneficiaries? The modified rule is qualitative rather than a specified quantitative threshold. Ross J applied the concept factually to the evidence before him [20], [22], but did not fix a numerical percentage. Administrators must assess factually whether they have identified the substantial majority, but uncertainty remains as to how courts will measure 'substantial majority' in other contexts.
What enquiries are 'reasonable'? The judgment accepts extensive genealogical and overseas archival searches in these circumstances [4], but does not catalogue a checklist of mandatory enquiries. The scope of reasonable effort will depend on facts: availability of records, likely locations of relatives, cost and proportionality.
When is global advertising futile? Ross J concluded that worldwide advertisement would be an 'empty charade' in this case where relatives were widely dispersed and records were likely destroyed [15]. That finding is fact-dependent. There will be close cases where courts may still require some form of public notice or inquiry, particularly where beneficiaries are more plausibly locatable.
How should administrators weigh proportionality? The estate's size ($2.33M) and the costs of exhaustive searches will inform decision-making. The judgment supports a pragmatic balance, but leaves open how costs and proportionality informs the threshold for 'reasonable enquiries' in cases of differing estate sizes or resource constraints [24].
Effect on later claims by previously unlocated beneficiaries. The judgment authorises distribution to identified beneficiaries. It does not address in detail the position if an unlocated beneficiary later emerges and claims a share. While Benjamin orders and similar distributions often carry procedural protections, practitioners will need to consider estoppel, restitution, and the need for retained funds or undertakings in future claims; the judgment does not elaborate those remedial consequences in depth.
Practitioners should apply the modified West v Weston test carefully, documenting investigations and being prepared to justify the reasonableness and proportionality of their enquiries. When in doubt, seeking court directions remains the safer course, especially in jurisdictions where local practice may require differing approaches.
Application pursuant to Rule 54.02 for the determination of questions arising in the administration of an estate - Administration and Probate Act 1958 - s 52(i)(f) - entire estate to be divided amongst all fifth degree relatives who survived the deceased - level of certainty required that all of those relatives have been identified and located - West v Weston [1998] NSWSC 419 considered and applied - Court satisfied on the balance of probabilities that the substantial majority of the beneficiaries have been ascertained and that no reasonable inquiries could be made which would improve the situation - application granted.
1 This is an application by State Trustees Limited for an order that they are justified in distributing the estate of the deceased to first cousins once removed, in the absence of evidence of any nearer next of kin surviving the deceased. The current value of the estate is $2,334,798.53. In the alternative the plaintiff seeks an order that all monies be paid into court and the plaintiff be discharged from further responsibility.
2 The deceased was born on 29 July 1912 in Ellenburg Germany and died in Melbourne on 21 February 2001, at the age of 88.
3 He died intestate because his last will, dated 3 July 2000, appointed his wife his executrix and universal beneficiary, and she predeceased him, and there was no gift over. Letters of administration to his estate were granted to State Trustees on 4 June 2001.
4 Since 2003 Mr William Corbettt, a Genealogical Researcher employed by State Trustees Ltd, has been engaged in, among other things, establishing the deceased's next of kin. The deceased was widowed at the time of his death. He did not leave any issue in Victoria between 1924 and 2002. There is no evidence that he lived anywhere other than Victoria. Mr Corbett engaged external researchers in Italy, Germany, and Poland. They have searched the archives in Hanover, Poland and Berlin. Obtaining details about the Deceased's next of kin is difficult because his family was Jewish and a number of his family members perished during the holocaust.
5 The aim of the provisions dealing with intestacy in the Administration and Probate Act 1958 is to provide a scheme of distribution for a deceased's residuary estate (as defined in s 38(4)), where the deceased dies without leaving a valid will or where the will does not effectively dispose of all of the residuary estate.
6 The scheme of distribution in Part 1, Division 6 of the Act provides benefits (with certain priorities) to the deceased's:
8 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 of the intestate who are in equal degree.
9 Section 52(1)(f) provides, relevantly:
"(f) Subject to the above-mentioned rights such estate or the portion thereof to which these rights do not extend shall be distributed in equal shares among the children of the intestate living at his or her decease and the representatives then living of any children who predeceased the intestate or if there are no such children or representatives among the next of kin of the intestate who are in equal degree and their representatives:
10 The provisos in s 52(1)(f)(i) to (viii) are not relevant in this case.
11 If there are no relatives then the residuary estate will pass to the Crown (s 55).
12 In this case Mr Corbett's investigations have established that there are no surviving issue, siblings, nephews and nieces, great-uncles and aunts, or cousins. No next of kin closer than fifth degree relatives survived, and accordingly the entire estate is to be divided amongst all of the fifth degree relatives who survived the deceased.
13 The practical problem which commonly arises in cases such as this is: how can the person representative be sure that all of those relatives have been identified and located?
14 In some cases the problem is solved through a next of kin inquiry. In West v Weston[3], Young J gave this description of that procedure:
"Essentially, if the evidence adduced by the parties is insufficient to enable the inquiries to be satisfactorily answered, then an advertisement is placed, prepared by the parties and approved by the Master, fixing a time within which each claimant is to come in and prove his or her claim, appointing a day for adjudicating thereon. Unless otherwise ordered, all persons who do not come in and prove their claims within that time will be excluded from the benefit of the order."
15 But in this case that procedure is not appropriate since it is clearly impractical to publish advertisements throughout the world which would have any realistic chance of alerting any distant relatives of the deceased to their entitlements to share in the distribution of this estate.
16 In Re Benjamin[4], the testator had 13 children of whom 12 survived him and 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. No-one responded to the advertisements. The trustees sought permission to distribute the estate on the basis that the son had predeceased the testator. Joyce J held that the son must be presumed dead, and gave that permission.
17 Such orders are now known as Benjamin Orders. They are regularly made in such circumstances including in relation to intestate estates.[5]
18 Returning to West v Weston that was a case which dealt with the requirements of certainty for will trusts (whether or not it was necessary to be able to compile a complete list of beneficiaries for the trust to be valid) as well as with the procedure to be followed where beneficiaries cannot be found. The relevant trust was to divide the residue amongst the issue living at the date of death of the testator of his four grandparents. The researches of a genealogist over two years found 1,225 persons who qualified as beneficiaries from one side of the family, and 450 from the other. It remained possible that more claimants might come to light. In relation to the problem of finding beneficiaries Young J then referred to Re Saxone Co Ltd's Trust Deed[6] where Cross J said (at p 912) that
"When the court directs an inquiry to ascertain next of kin, or distributes a fund on the master's certificate given in answer to the inquiry, it is always possible that the class will never be or has not been completely ascertained...All that is necessary is that the court should be satisfied that it is probable that the class can be or has been ascertained."
19 Young J examined the authorities including the only relevant Australian decision, Kinsela v Caldwell[7], and said at [37] that whilst they indicated he should follow the English rule,
"...it seems to me that I would be justified in slightly modifying its operation for Australian conditions of the present day."
20 Young J expressed the rule, so modified, in these words:
"The rule will be satisfied if, within a reasonable time after the gift comes into effect, the court can be satisfied on the balance of probabilities that the substantial majority of the beneficiaries have been ascertained and that no reasonable inquiries could be made which would improve the situation."
21 In my view the modified rule as formulated by Young J ought to be applied to the matter presently before me. I agree with the submissions of counsel for the plaintiff that a next of kin inquiry, and the publication of advertisements, would be nothing more than an empty charade in the circumstances of this case. A Benjamin order is required.
22 In terms of the rule suggested by Young J, I am satisfied that the evidence shows that, on the balance of probabilities
(a) if not all, then at least the substantial majority of the beneficiaries have been ascertained; and
(b) there no further reasonable inquiries which should be made and which would be likely to identify any further beneficiaries.
23 The next of kin entitled under s 52(1)(f) of the Act to participate in the distribution of the intestate estate are the next of kin in the fifth degree who were living on 21 February 2001 when the Deceased died. Annexure to "WGC-7" to Mr Corbett's affidavit is a chart showing relatives who fall into the category of fifth degree relatives. There are twelve such persons.
24 The estate of 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 the 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.
25 In the circumstances and having regard to Mr Corbett's evidence I am satisfied that it would be appropriate to distribute the estate of the Deceased to his first cousins once removed who are named in the schedule to the originating motion.
26 The costs of this application are to be paid or retained out of the estate.
[1] Matthews v Williams [1941] HCA 32; (1941) 65 CLR 639 at 650. Perpetual Trustees Co Ltd v Wilson [1995] ACL Rep 395 NSW 51.
[3] [1998] NSWSC 419 at [24].
[5] Re Aldersley, [1905] 2 Ch. 181; Re Hickey, [1925] VicLawRp 39; [1925] VLR 270; Re Dolling, [1956] VicLawRp 82; [1956] VLR 535; and Re Albert, [1967] VicRp 114; [1967] VR 875, (a case where a Benjamin order was made in relation to an intestate estate).
[7] (NSW), unrep Mahoney J, 28 June, 1973.
Application pursuant to Rule 54.02 for the determination of questions arising in the administration of an estate - Administration and Probate Act 1958 - s 52(i)(f) - entire estate to be divided amongst all fifth degree relatives who survived the deceased - level of certainty required that all of those relatives have been identified and located - West
Weston
(1941) 65 CLR 639
Application granted: the court authorised distribution of the net estate to the named first cousins once removed (the fifth degree next of kin identified in the schedule), ordered the costs of the application to be paid or retained out of the estate, and declined to require global advertisements or further inquiries which would be impractical [25], [26].