Bickford v Benson

Determination

Since the deceased was domiciled in New South Wales at the time of his death, it is the law of New South Wales that determines the succession to his intestate estate: Public Trustee v Kehagias [2009] NSWSC 972 at [11] (McLaughlin AsJ); Application by NSW Trustee and Guardian (Estate of the late Peter Czmil) (2013) 12 ASTLR 148 at 150; [2013] NSWSC 1683 at [4] (Black J).
The scheme of distribution on intestacy as at the date of the deceased's death, in 2012, is as set out in Ch 4 of the Succession Act 2006 (NSW) (the Act).
Section 103 of the Act provides that "[a] reference in this Chapter to an entitlement to the whole of the intestate estate is a reference to so much of the estate as remains after payment of all such funeral and administration expenses, debts and other liabilities as are properly payable out of the estate".
Section 128 of the Act provides that "[t]he parents of an intestate are entitled to the whole of the intestate estate if the intestate leaves (a) no spouse, and (b) no issue" and "[i]f there is only one surviving parent, the entitlement vests in the parent and, if both survive, it vests in equal shares".
Section 130 of the Act provides: (1) The grandparents of an intestate are entitled to the whole of an intestate estate if the intestate leaves: (a) no spouse, and (b) no issue, and (c) no parent, and (d) no brother or sister, or issue of a deceased brother or sister. (2) If there is only one surviving grandparent, the entitlement vests in the grandparent and, if 2 or more survive, it vests in them in equal shares.
Section 131 of the Act provides: (1) The brothers and sisters of each of an intestate's parents are entitled to the whole of the intestate estate if the intestate leaves: (a) no spouse, and (b) no issue, and (c) no parent, and (d) no brother or sister, or issue of a deceased brother or sister, and (e) no grandparent. (2) If no brother or sister of a parent of the intestate predeceased the intestate leaving a child who survived the intestate, then: (a) if only one survives - the entitlement vests in the surviving brother or sister, or (b) if 2 or more survive - the entitlement vests in them in equal shares. (3) If a brother or sister of a parent of the intestate predeceased the intestate leaving a child who survived the intestate, the child is entitled to the deceased parent's presumptive share and, if there are 2 or more children, they share equally.
In Alexander Learmonth, Charlotte Ford, Julia Clark and John Ross Martyn, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (21st ed, 2018, Sweet & Maxwell) at [65-18], the learned editors state: "Distribution may be held up because the representatives cannot be sure who is entitled. Thus a person's right to share in the estate may turn on the question whether another predeceased the testator, or predeceased him without issue, and it may be uncertain on the facts whether this happened. In these circumstances, the representatives may apply to the court for a 'Benjamin' order, that is, an order permitting them to distribute the estate on the footing that certain events have or have not happened. This relieves the representatives of liability in their capacity as representatives should the hypothesis on which they are to be permitted to distribute turn out to be wrong. Thus, where a beneficiary who was thought to have predeceased a testator subsequently appears, he will not be entitled to bring a claim against the representatives for his share of the estate. He may, however, be entitled to claim in equity against the beneficiaries who have been wrongly paid or perhaps bring a tracing action against the recipients of the share." (citations omitted)
In Application by NSW Trustee & Guardian (Estate of the late Marko Sijakovic) [2012] NSWSC 1532 at [23]-[25], and in NSW Trustee and Guardian (Estate of Peter Urso) [2013] NSWSC 903 at [38]-[40], I discussed Benjamin orders in some detail. It is not necessary to repeat what I wrote in those cases.
(I note that what I wrote was followed by Kunc J in NSW Trustee & Guardian; In the Estate of Francis [2014] NSWSC 123 at [2] and in NSW Trustee & Guardian; In the Estate of Rex [2015] NSWSC 841 at [8]; by Pembroke J in Application of Harnett and Cutts [2016] NSWSC 427 at [2]-[3]; by Slattery J in Application by NSW Trustee and Guardian (Estate of the late Frederick John Vermaak) [2016] NSWSC 1436 at [8]-[9]; and by Henry J in Application by NSW Trustee and Guardian; Estate of Esme Veronica Hennessy [2019] NSWSC 340 at [11] and in Application of NSW Trustee & Guardian; Estate of Dudley Keith Vaughn [2019] NSWSC 850 at [11].)
In addition, as was noted by Brereton J (as his Honour then was), in Application of NSW Trustee & Guardian (2014) 14 ASTLR 436 at 438 [4]-[5]; [2014] NSWSC 1857 at [4]-[5]: "A 'Benjamin order' … permits the executor or administrator of a deceased's estate to distribute the estate on a particular factual basis notwithstanding that there is some uncertainty about a factual matter relevant to the distribution, such as the existence of particular beneficiaries, protecting the executor from liability if a person entitled to a portion of the estate subsequently appears, without affecting the legal rights of such a person who, though not entitled to make a claim against the executor for that portion, may claim against beneficiaries who have been incorrectly paid [see generally Gonzales v Claridades [2003] NSWSC 508; (2003) 58 NSWLR 188, [75] (Campbell J); Lempens v Reid [2009] SASC 179, [32] (Gray J); Application by NSW Trustee and Guardian (Estate of the late Marco Sijakovic) [2012] NSWSC 1532, [23]-[25] (Hallen J)]. A Benjamin order does not vary or destroy beneficial interests, but merely enables trust property to be distributed in accordance with the practical probabilities [Hansell v Spink [1943] Ch 396, 399; Re Green's Will Trusts; Fitzgerald-Hart and another v Attorney General and others [1985] 3 All ER 455, 462]. Although the particular basis set out in the order reflects inferences from the proved facts, the order is not a positive declaration of rights [D H Parry & J B Clark, The Law of Succession, (10th ed 1996, Sweet & Maxwell) at 471-2] …"
Although I have considered whether the problem facing the Plaintiff could be solved by conducting a next of kin inquiry, as was suggested as an alternative in West v Weston (1998) 44 NSWLR 657 at 662 (Young J); [1998] NSWSC 419, I do not think that it would be an appropriate course to follow because of the impracticability of publishing advertisements overseas, which advertisements would have no realistic prospect of identifying any next of kin of the deceased who might be entitled to share in the distribution of the deceased's estate.
Yet, I consider it appropriate to follow Young J's view, as did Ross J in In the Will and Estate of Werner Ludwigk Meyerstein deceased [2009] VSC 564 at [20]-[21], that even for a Benjamin order, all that is necessary is that the court should be satisfied that it is probable that the persons entitled (in this case, on intestacy) have been ascertained and that no reasonable further inquiries could be made which would improve the state of the evidence. I am so satisfied. The time has come to put an end to further search.
I am satisfied that it is sufficiently likely that all reasonable searches have been carried out to ascertain the identity of the deceased's paternal grandfather and that "no reasonable further inquiries could be made which would improve the state of the evidence". If that were not enough, I am of the view, as was Kunc J in The Estate of Janet Beris Jackwitz [2018] NSWSC 515 at [31], that even if it would be theoretically possible for further inquiries to be made, given the small size of the estate "it would be an unreasonable impost on the estate to require further inquiries to be made against the possibility of finding very distant relatives".
In these proceedings I am satisfied, and therefore, order, that, without prejudice to the rights of any person to trace his, her, or their, share into the hands of the recipient if it be established that they survived the deceased or otherwise as the case may be, the Plaintiff would be justified in distributing the estate of the deceased on the following basis: 1. As to 2/12ths of the deceased's net estate to the Estate of Nona Jean Kesby; 2. As to 2/12ths of the deceased's net estate to Barry William Burton; 3. As to 2/12ths of the deceased's net estate to Bruce William Long; 4. As to 2/12ths of the deceased's net estate to Denis Harold Long; 5. As to 1/12th of the deceased's net estate to the Estate of Jean Cowie; 6. As to 1/12th of the deceased's net estate to Carol Ann Fisk; 7. As to 1/12th of the deceased's net estate to Helen Bailey; 8. As to 1/12th of the deceased's net estate to Linda Williams.
I order that the Plaintiff's costs of the proceedings, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate of the deceased.
I order that the Summons otherwise be dismissed and that the return date of 3 August 2020 be vacated.

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Judgment (6 paragraphs)

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Cases Cited (19)

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