Gonzales v Claridades

The Will

1. The deceased's will provides that, after payment of estate liabilities, the deceased's property is to be divided into enough equal parts to pay the gifts set out in the will. It also provides that no parts are to be set aside for any gifts which do not take effect.
2. The gifts set out in the will are to be made in twenty-three parts to various people, including a gift as to four parts to Maureen and Karin.
3. At the time of making the will, the deceased completed a "Will Information Form" which suggests that Maureen and Karin are mother and daughter and lived in or were from Rylstone, NSW.
4. The value of the deceased's estate at the time of his death was estimated to be $665,809.15.
5. Other than the gift of four parts to Maureen and Karin, all of the gifts under the will have been distributed by the NSW Trustee & Guardian to the other beneficiaries, who are all members of the deceased's extended family, including his ex-wife.
6. The current gross value of Maureen and Karin's shares under the will is $136,750.28, which comprises funds held in the trust account of the NSW Trustee & Guardian.

Legal principles

1. A "Benjamin order" (In re Benjamin; Neville v Benjamin [1902] 1 Ch 723), is an order made by the Court that permits an executor to distribute the deceased's estate on a particular factual basis notwithstanding there is some uncertainty about a factual matter relevant to the distribution, such as the existence of particular beneficiaries. The order protects the executor from liability if a person who has an entitlement subsequently appears, who will not be able to claim against the executor but may claim against beneficiaries who have been incorrectly paid out pursuant to the order: Application of NSW Trustee & Guardian [2014] NSWSC 1857 at [4] - [5]; see also generally, Gonzales v Claridades [2003] NSWSC 508 at [75]; NSW Trustee and Guardian (Estate of Peter Urso) [2013] NSWSC 903 at [39]; Application by NSW Trustee and Guardian (Estate of the late Marco Sijakovic) [2012] NSWSC 1532 at [23] - [25].
2. A Benjamin order does not amount to a positive declaration of rights but enables the trust property to be distributed by an executor in accordance with the "practical probabilities" reflecting inferences from the proved facts: Hansell v Spink [1943] Ch 396; Re Green's Will Trusts [1985] 3 All ER 355 at 462; Application of NSW Trustee & Guardian [2014] NSWSC 1857 at [5].
3. Certainty of the factual position is not required before a Benjamin order is made. An order for a proposed distribution may be made where there is a measure of uncertainty, such as where inquiries have proved inconclusive or suitable advertisements for a missing beneficiary produces no responses. As Hallen J said in NSW Trustee and Guardian (Estate of Peter Urso) [2013] NSWSC 903 at [39]: "Thus, in a case where a trustee is faced with a practical difficulty in establishing the existence of possible beneficiaries or other claimants, the Court will give a direction to the trustee enabling it to distribute the trust property on an assumption of fact that there is no such beneficiary or claimant. In the case where a beneficiary has disappeared in circumstances where the absence leads to an inference of death, an order may be made that the trust estate be distributed on the basis that the beneficiary is dead".
4. In West v Weston [1998] NSWSC 419, Young J, as he then was, took the view that even for a Benjamin order, all that is required is that the Court should be satisfied that it is probable that the persons entitled on intestacy have been ascertained and that no further reasonable inquiries should be made which would improve the state of the evidence.
5. The view of Young J in West v Weston [1998] NSWSC 419 has been supported and applied in subsequent cases: Re Meyerstein [2009] VSC 564; Application by NSW Trustee & Guardian (Estate of the late Marko Sijakovic) [2012] NSWSC 1532 and NSW Trustee & Guardian; Estate of the late Jan Szczudlik [2015] NSWSC 1529.
6. Where there is any doubt about the proposed distribution, it is appropriate for an executor to seek advice under s 63 of the Trustee Act, which enables an executor as trustee to apply to Court for advice or a direction on a question regarding the management or administration of trust property, or under r 54.3(2) of the Uniform Civil Procedure Rules 2005 (NSW), which provides for proceedings to be brought for the determination of a question arising in the administration of an estate: Gonzales v Claridades [2003] NSWSC 508 at [57].

Determination

1. In order to establish the factual basis for the orders sought, the NSW Trustee & Guardian has undertaken a variety of enquiries and searches to identify Maureen and Karin, the results of which are contained in and exhibited to the affidavit of Kelvin Kwan, a legal officer at the NSW Trustee & Guardian, sworn on 10 April 2019. Those enquiries and searches comprised: 1. speaking to the deceased's niece, who advised that she and the rest of the deceased's family are not aware of any persons known to the deceased's family by the names of Maureen Paebslo and Karin Paebslo; 2. undertaking a search of an application called "Person Locator Search" on the digital database platform Infotrack, which has access to over 130 million Australian records from approximately ten different data sources, which did not identify anyone living or dead with the names Maureen Paebslo and Karin Paebslo; 3. arranging for the NSW Trustee & Guardian Genealogy Unit to undertake searches of the electoral rolls for the years 1992 and 1999 for the surname "Paebslo", the results of which were negative, and further searches of the roll for similar surnames, which had no direct matches; 4. sending correspondence to three women identified from the Electoral Roll searches with the surname "Passlow", which did not lead to any positive identifications; 5. travelling to Rylstone and making enquiries with a range of people at eight different locations, including at the Mid-West Regional Council office, all of whom informed Mr Kwan that they had not heard of a Maureen or Karin with a surname similar to Paebslo; 6. reviewing a book "A History of Rylstone' published in 1999, which did not identify anyone with a surname like Paebslo; and 7. placing "Public Notices" referring to Maureen and Karin and the deceased in the Sydney Morning Herald and the Central Coast Express Advocate (being the paper published in the local area of the last known residence of the deceased) in November 2018. No responses have been received to either of those notices.
2. I am satisfied that the NSW Trustee & Guardian has carried out the necessary and proper investigations to locate Maureen and Karin and that there are no further reasonable enquiries that should be made and would be likely, in any event, to identify either of Maureen or Karin. The absence of any positive identification or response leads to the inference that they have died and will not be identified.
3. The outcomes of the investigations undertaken to date do not completely exclude the possibility that Maureen and Karin survive the deceased or that the deceased provided the incorrect spelling for their names. Orders of the type proposed may be made despite a degree of uncertainty where the proposed basis of distribution is justified by facts as a "matter of practical certainty" or where the possibility that those facts might ultimately be false is a "remote contingency": Application of NSW Trustee and Guardian [2014] NSWSC 1857 per Brereton J at [7]. In my view, this is such a case. The prospect that either Maureen or Karin are alive or will be identified as a beneficiary appears to be very remote.
4. It is, therefore, appropriate to make the order sought that the NSW Trustee & Guardian be at liberty to distribute the estate of the deceased as if Maureen Paebslo and Karin Paebslo had predeceased the deceased. This will result in the other beneficiaries under the will sharing in Maureen and Karin's gift in accordance with the allocations made to those other beneficiaries.
5. Accordingly, I make the orders claimed in the summons in the terms of the short minutes of order handed up to the Court and initialled by me and dated today in the following terms: 1. The plaintiff be at liberty to distribute the estate of the late Dudley Keith Vaughan as if Maureen Paebslo and Karin Paebslo had predeceased Dudley Keith Vaughan. 2. The plaintiff's costs be paid out of the estate of Dudley Keith Vaughan on an indemnity basis.

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: 08 July 2019