Matthews v Williams

The Brief Background - Formal Matters

1. The deceased died intestate on about 16 January 1992, aged 81 years, leaving property in New South Wales.
2. This court granted Letters of Administration to the Public Trustee, on intestacy, on 3 June 1992.
3. (The NSW Trustee and Guardian Act 2009 (NSW) commenced on 1 July 2009. Section 4 repealed the Public Trustee Act 1913 (NSW). Section 5 constituted the corporation called the NSW Trustee and Guardian. Under clause 3(1)(d) of Schedule 1 to the NSW Trustee and Guardian Act, any reference in a previous Act to the Public Trustee is to be read as a reference to the NSW Trustee. Under clause 11 of Schedule 1, the NSW Trustee and Guardian is taken, for all purposes, to be a continuation of the former Public Trustee.)
4. The gross value of the deceased's estate, at the date of death, was estimated to be $146,719.44. In the Inventory of Property attached to, and placed inside, the Letters of Administration, the estate was said to include real estate at Fairfield ($100,000), cash in a current account ($4,665.61), and moneys in bank ($42,053.83).
5. As at 25 May 2015, the ledger balance relating to the estate, revealed that the amount held by the Plaintiff was $267,313. Currently, the deceased's estate consists of cash, held by the Plaintiff, in the amount of $264,075.23, and interest of $1,053.18, which has accrued, but has not yet been added to the ledger account.
6. A notice of intended distribution of the estate, pursuant to s 92 of the Wills Probate & Administration Act 1898 (NSW) (as it applied at the time) was published on 13 June 1992 in the Sydney Morning Herald, a newspaper then circulating in the district in which the deceased resided at the time of his death.
7. The solicitor for the Plaintiff swore that he had been unable to locate a copy of the Notice but that the Plaintiff's records suggested that such a Notice had been published. No response to the Notice was received by the Plaintiff and the estate was paid to the Treasury as unclaimed funds.
8. For reasons to which I shall next come, those funds have been returned to the Plaintiff.
9. On 24 April 2003, the Plaintiff received an email from Mr V Radzievsky, Attorney at Law, Honorary President of the Ukranian Law Associates, stating that he had been "retained by Mr Pavlo Mychajlovych Szczudlik, born in 1929, and residing at the village of Rykhtychy, District of Drogobych, Region of Lviv, Ukraine, to render him legal assistance in tracing the estate of his brother, Jan Szczudlik, who may [have died] in Australia."
10. This email alerted the Plaintiff to the possibility that the deceased may have been survived by next of kin overseas to whom the estate of the deceased should be distributed. Thereafter, the Plaintiff has been carrying out searches, and seeking information, concerning the manner in which, and to whom, the deceased's estate should be distributed. These searches have now been completed, as far as they can be, and the Plaintiff wishes to proceed to complete the administration of the deceased's estate.
11. On 28 October 2010, the Plaintiff received a letter from Mr A Zilinksas, a solicitor of Lukaitis Partners, a Victorian legal firm, referring to the estate of the deceased, and stating he had been instructed to act on behalf of "Mykhailo Pawlovych Szczuldik, Ihor Pawlovych Szczuldik (the children of Pavlo Szczuldik) and Svitlana Yaroslavivna Vaschuk (the daughter of Jaroslaw Szczuldik), the nephews and niece of the… deceased". He appeared to have received instructions from the Ukranian Law Associates, to which he referred as "our clients' lawyers".
12. Since then, the Plaintiff has received a number of documents from Ukranian Law Associates and/or Mr Zilinksas on behalf of persons said to be the next of kin of the deceased.
13. A family tree has been provided which forms part of Ex. A. (The Plaintiff's counsel, at the hearing, provided the court with a summarised diagrammatic Family Tree, which was not tendered, but which was provided as an aide memoire.)
14. On 10 February 2012, the Plaintiff gave further notice of intended distribution by advertisement placed in the Sydney Morning Herald.
15. The Plaintiff commenced the proceedings by Summons filed on 28 May 2015 seeking, relevantly, the following relief: "1. An order that the Plaintiff be at liberty to distribute the estate of the late Jan Szczudlik to the following persons in the following shares: (i) Ihor Szczudlyk - 1/4 share of the net estate; (ii) Svitlana Szczudlyk - 1/4 share of the net estate; (iii) Ryszard Szczudlik - 1/8 share of the net estate (iv) Irena Sala - 1/8 share of the net estate; (v) Mariya Lucyk - 1/4 share of the net estate; But without prejudice to the rights of any next of kin of the deceased or those claiming through them to trace his and/or her share or their shares into the hands of the recipient, if it were ever established that they survived the deceased or otherwise as the case may be. 2. An order that the plaintiff's cost of the application be paid out of the estate on an indemnity basis. 3. Such further or other order as the court thinks fit."
16. The application proceeded ex parte, there being no appearance by, or on behalf of, any of the persons to whom reference shall be made. However, I was informed, and observed, that a person identified as Mr Zilinksas was present in court. Following the evidence being read, I stated that I would be prepared to make orders to the general effect of those sought in the Summons and would publish reasons and the precise orders made in due course. These are the reasons and the orders.
17. To provide a basis for the orders I shall make, it is next necessary to set out, firstly, the operation of the relevant intestacy rules, and then the background facts, which are based upon the evidence that the Plaintiff has been able to assemble and adduce in these proceedings. The question that faces the Plaintiff, namely the identity of the persons to whom the deceased's estate should now be distributed, should be able to be resolved in this way.

The Operation of the Intestacy Rules

1. It is one of the primary duties of a legal personal representative to distribute the estate of the deceased to the persons entitled to it. Since the deceased appears to have been 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, per McLaughlin AsJ, at [11].
2. The aim of the provisions dealing with intestacy is to provide a scheme of distribution for a deceased's residuary estate where the deceased dies without leaving a valid will, or where the will does not effectively dispose of all of that residuary estate.
3. The scheme of distribution on intestacy, as at the date of the deceased's death, in January 1992, was set out in s 61A - s 61F of the Wills Probate and Administration Act 1898 (NSW). The relevant sections which apply in this case are sections 61B(1), (6) and (7). Those sections provide: "(1) Where a person dies wholly intestate, the real and personal estate of that person shall, subject to the payment of all such funeral and administration expenses, debts and other liabilities as are properly payable out of the estate, be distributed or held in trust in the manner specified in this section, and the real estate of that person shall be held as if it had been devised to the persons for whom it is held in trust under this section. ... (6) If the intestate leaves no spouse, no issue and no parents, the estate shall be held for the following persons living at the death of the intestate and in the following order and manner: (a) firstly, in statutory trust for the brothers and sisters of the whole blood of the intestate; but if there are no such brothers or sisters, then (b) secondly, in statutory trust for the brothers and sisters of the half blood of the intestate; but if there are no such brothers or sisters, then (c) thirdly, in trust for the grandparents of the intestate and, if more than one of them survive the intestate, in equal shares; but if there are no such grandparents, then (d) fourthly, in trust for the uncles and aunts of the intestate (being brothers or sisters of the whole blood of a parent of the intestate) and, if more than one of them survive the intestate, in equal shares; but if there are no such uncles or aunts, then (e) fifthly, in trust for the uncles and aunts of the intestate (being brothers or sisters of the half blood of a parent of the intestate) and, if more than one of them survive the intestate, in equal shares."
4. Subsection (7) provides that where the intestate is survived by no successor falling within sub-sections (2) to (6) of s 61B, the intestate estate belongs to the Crown as bona vacantia and in place of any right to escheat.
5. The word "issue" as used in sub-section (6), whilst including the child, or children, of the deceased, has been interpreted as including lineal descendants or descendants of all degrees: Matthews v Williams [1941] HCA 32; (1941) 65 CLR 639, at 650.
6. Where the estate, or any part of the estate, is directed to be held "on statutory trust" for any class of relatives other than issue of the intestate, "that estate or part shall be held in trust corresponding to the statutory trust for the issue of the intestate as if that trust were repeated with the substitution of references to the members, or member of that class for references to the children or child of the intestate": s 61C(3) of the Wills Probate and Administration Act. No issue whose parent was living at the date of death of the intestate and capable of taking, can otherwise take: s 61C(1)(b) of the Wills Probate and Administration Act.
7. A division of the property that is the subject of the trust, per stirpes (and not per capita) ensues. Thus, for example, the property is divided into shares equal in number to the number of siblings of the deceased who either survived him, or predeceased him leaving issue who survived. Any surviving sibling of the deceased would, thus, be entitled to one of the shares, whereas in the case of a sibling of the deceased who predeceased him leaving issue who survived, the issue would be entitled to share equally one of the shares amongst themselves.

The Facts going to Distribution

1. There were two affidavits by a legal officer of the Plaintiff, Mr S G Wilson, and an exhibit to the first affidavit (Ex. A) that was relied upon by the Plaintiff. At the hearing, the Plaintiff tendered an additional document (Ex. B), being an English translation of a Declaration of Kinship dated 12 September 2015 of Svitlana Yaroslavivna Vaschuk, the daughter of one of the siblings of the deceased (to whom reference will be made later in these reasons).
2. Whilst there are some limited questions about whether the documents to which I shall refer identify the deceased, or others, because of the different spelling of family names, and different dates of birth, or death, overall, I am satisfied, on the balance of probabilities, that it is the deceased and the next of kin to whom reference is made and that what I shall set out hereunder is to be found in the searches carried out, and the information received, by the Plaintiff.
3. (In this regard, I note the statement made in the letter dated 28 October 2010, from Mr Zilinskas that "families belonging to the Orthodox Church (the religion of Ukraine) follow the Julian Calendar whereas non-Orthdox countries use the Gregorian Calendar. There is a difference of about 10 to 14 or more days between the two calendars. This may explain the difference in the dates of birth.")
4. I am also satisfied that the Plaintiff has carried out the necessary, and proper, investigations to determine the persons who are, or who may be, entitled on intestacy to the deceased's estate.
5. I should mention that in order to carry out searches overseas, the Plaintiff engaged an international genealogical researcher, Muggenthaler Research, to perform searches in Poland, Naples and Germany. The Plaintiff also provided the researcher with a copy of documents that had been provided by Ukranian Law Associates.
6. In an email dated 7 April 2010, to the Plaintiff, the Researcher indicated it had ordered the birth record of the deceased and it was similar to the one which the Plaintiff had received from the "heirs or the Ukranian law office". It also informed the Plaintiff that "all the documents you sent us, that the heirs, or the Ukranian Law office, have provided, look correct..."
7. I am 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.

The Deceased, Spouse and Issue

1. The deceased was born in Stroze Wielkie, Poland on 2 September 1910. A copy of a "birth record" confirms the date and place of birth.
2. The deceased arrived in Australia, as a refugee, in 1949. According to an International Refugee Organisation Nominal Roll of Emigrants he had sailed to Naples, from Germany, in about February 1949. (There is other evidence that shows the deceased arrived in Germany from Poland in April 1944.) Although it appears that the deceased was named as a passenger, his date of birth was stated to be 10 October 1910 ("10.10.10"). The country, and place, of birth, however, accorded with the information on the birth record relating to the deceased.
3. An Incoming Passenger Card of the Commonwealth of Australia provides that the deceased, who is described as a farmworker, states that he was born on 10 October 1910 in Stroze Wielkie, Poland and that his country of last permanent residence was Germany. He is described as a single male who was "resettling" in Australia. His port of disembarkation, on or about 19 March 1949, was Melbourne, Victoria.
4. In an International Refugee Organisation Resettlement Medical Examination Form, which appears to have been signed by the deceased, he stated he had no children. His age is given as 38 years, which appears to accord with him having been born in about 1910.
5. When the deceased travelled from Victoria, to New South Wales, is not precisely known although it is likely that he had arrived in New South Wales by about 1958.
6. Ms V Belluomo, a neighbour of the deceased (she lived at the property No 2, and the deceased lived at No 9, in the same street) in an affidavit sworn on 28 April 1992, stated that she had known the deceased, for 34 years, and that she did not believe that the deceased was married at the date of his death; that he left any de facto spouse at the time of his death; and that he was the parent of any child.
7. The Plaintiff conducted a Marriage search of the NSW Registry of Births, Deaths and Marriages, which disclosed no record of a marriage for the deceased between 1945 and 1992.
8. The Plaintiff also conducted a search of the NSW Registry of Births, Deaths and Marriages, which disclosed no record of the deceased as the parent of any child, between 1945 and January 1992, or as the adoptive parent of a child, during that period.
9. The Researcher carried out searches for a record of a marriage in the deceased's birth place but found no record that the deceased was married there. If the deceased had any illegitimate child, or children, the Researcher could not conduct a search because the child, or children, would have been registered under the mother's name.
10. The Researcher also carried out searches in Naples and Germany but found no record that the deceased was married in either place or that he was recorded as the parent of any child.
11. The deceased's Death Certificate does not provide any reference to the deceased having been married, or having been the parent of any child, or children.
12. On the balance of probabilities, therefore, I am satisfied the deceased died without a spouse, and with no issue, at the date of his death.

The Deceased's Parents

1. The deceased's mother was Eufrozina (Yefrosynia) Wasylivna Oklijewicz. His father was Michal (Mykhailo) Jurkowycz Szczudlyk.
2. There are different dates shown as the birth date of the deceased's father (1844 or 1884) and no direct information about the birth date of the deceased's mother. (It seems to be accepted that there is a typographical error in the father's birth date and that it should be 1884.) According to the Marriage Certificate dated 17 October 1908, the deceased's father was shown as having been born on 14 November 1884 and the deceased's mother was shown to have been born on 26 August 1887, in Stroze Wielkie, Poland.
3. The deceased's father died on 27 June 1947, in the village of Rykhtyczy, district of Drogobycz, region of Lwiw, Ukraine. The deceased's mother died on 6 August 1953, in the village of Rykhtyczy, district of Drogobycz, region of Lwiw, Ukraine.
4. (Even without this information, bearing in mind the deceased's age at his death (about 81 years), I am satisfied on the balance of probabilities that both of his parents are likely to have predeceased him. If the deceased's father was born in 1884, he would have been about 108 years old at the date of the deceased's death. If the deceased's mother was born in 1887, she would have been about 105 years old at the date of the deceased's death.)

Brothers and Sisters of the whole blood

1. The Plaintiff has been unable to obtain a children, or issue, search for the parents of the deceased. The following information has been gathered by the Plaintiff, from other documents including declarations of kinship and other historical family archives that have been provided.
2. The deceased's parents appear to have had 8 children: (i) The deceased; (ii) Vasyl Szczudlik (male) who was born 6 August 1912 in Stroze Wielkie, Poland; (iii) Teodor Szczudlik (male) who was born on 13 March 1919, or on 23 March 1919, in Stroze Wielkie, Poland; (iv) Piotr Szczudlik (male) who was born on 15 May 1921, or on 22 May 1921, in Stroze Wielkie, Poland; (v) Anton Szczudlik (male) who was born on 10 February 1923, or on 23 February 1923, in Stroze Wielkie, Poland; (vi) Anna Michajliwna Szczudlik (female) who was born on 25 November 1925, or on 25 August 1926, in Stroze Wielkie, Poland; (vii) Pavlo Szczudlik (male) who was born on 6 February 1929, or on 6 January 1929, in Stroze Wielkie, Poland; and (viii) Jaroslaw Szczudlik (male) who was born on 30 April 1932 in Stroze Wielkie, Poland.
3. There is evidence that Vasyl died on 3 April 1945 and that Piotr died on 28 August 1944. Teodor also died during World War II, on a date not known, but believed to be, between 1939 and 1942. There is no evidence that any of these three siblings of the deceased died with any issue surviving him.
4. Antoni (also referred to as Anton) married Zofia Rau on 12 December 1953. He died on 1 November 1983, in Poland, having predeceased the deceased. However, there is evidence that he was survived by a son, Ryszard Szczudlik, who was born on 27 February 1955, and a daughter, Irena Szczudlik, who was born on 27 November 1966.
5. The Plaintiff has been provided with a Declaration of Kinship, dated 5 May 2006, by Ryszard, which confirms that he is the son of Anton and is a nephew of the deceased. He has provided a Birth Record, which confirms his date of birth, and identifies his father as Antoni Szczudlyk and his mother as Zofia Rau.
6. Irena has provided a Declaration of Kinship, also dated 5 May 2006, which confirms that she is the daughter of Antoni Szczudlik and a niece of the deceased. Antoni Szczudlyk and Zofia Rau are recorded as her parents as disclosed on her Marriage Record. She has also provided a Declaration of Identity.
7. It follows that Ryszard and Irena are the two persons to whom the share of Antoni may be distributed.
8. Anna married Omelian Petrowycz Lucyk on 26 May 1955 in Ukraine. The Plaintiff has no record of a divorce from her first husband, but there is evidence that Anna married Wasyl Iwanowycz Dziadus on 2 September 1972 in Ukraine.
9. Anna died in Ukraine on 14 August 1986 having predeceased the deceased.
10. There is evidence that Anna had 3 children from her first marriage, being Petro, who was born on 9 August 1958 and who died on 29 October 2002; Wolodymyr, who was born on 2 August 1959 and who died on 7 April 1984; and Mariya Omelianiwna Lucyk, who was born on 17 June 1962.
11. Anna had no children from her second marriage.
12. Because Petro survived the deceased, his estate is entitled to the share of the deceased's estate to which he was entitled. The Plaintiff has no record of any marriage of, or children born to, Petro. However, the Plaintiff has been provided with a Certificate of Inheritance for Petro's estate, in which his sister, Mariya is named as his sole heir.
13. The Plaintiff has no record of any marriage of, or children born to Wolodymyr.
14. Mariya has provided a Declaration of Kinship. The Plaintiff has also received a letter from Mariya, in which she confirms that she is a niece of the deceased; that each of her brothers, Petro and Wolodymyr, never married and had no children at the date of his death; and that she had lived with Petro and Wolodymyr in the village of Rykhtyczy, Ukraine, until his death, respectively.
15. It follows that Mariya is the person to whom the Anna's share of the estate may be distributed.
16. Pavlo married Mariya Andrijvna Bigunyak on 27 September 1958 in Ukraine. He provided a Declaration of Kinship dated 15 January 2004, in which he declared he was a brother of the deceased. He died on 23 May 2004 in Ukraine having survived the deceased.
17. Because Pavlo survived the deceased, his estate is entitled to the share of the deceased's estate to which he was entitled. The Plaintiff has received a Certificate of the Right to Inherit according to the Will of Pavlo dated 26 January 2006 which names his son, Ihor Pawlovych Szczudlyk, as his heir.
18. Ihor was born on 28 September 1964. He had one brother, Mykhailo Pawlovych who was born on 28 January 1961. Mykhailo does not inherit any share of Pavlo's estate and is, therefore, not entitled to any part of the deceased's estate as his father survived the deceased.
19. It follows that Ihor is the person to whom Pavlo's share of the estate may be distributed.
20. Jaroslaw married Mariya Mykhailivna Goshko on 25 November 1961 in Ukraine. He died on 7 April 2006 in Ukraine. The Plaintiff has received a Declaration of Kinship from Jaroslaw which was dated 15 January 2004.
21. Because Jaroslaw survived the deceased, his estate is entitled to the share of the deceased's estate to which he was entitled. The Plaintiff has received a Certificate of the Right to Inherit dated 5 March 2007 according to the Will of Juroslaw and naming his daughter, Svitlana Jaroslawivna Vaschuk, as his heir.
22. Svitlana was born on 13 September 1967 in Ukraine. The Plaintiff has received a Declaration of Identity dated 1 June 2012 and a Declaration of Kinship dated 12 September 2015 from Svitlana (Ex. B). Each document confirms that she is the daughter of Jaroslaw and a niece of the deceased.
23. It follows that Svitlana is the person to whom Jaroslaw's share of the estate may be distributed.
24. Based upon the evidence, I am satisfied, in all the circumstances, that the following orders should be made:
25. That the Plaintiff be at liberty to distribute the intestate estate of the late Jan Szczudlik ("the deceased") as follows: (a) as to a one quarter share, to Pavlo Szczudlik, a brother of the deceased, who survived the deceased, but who died on 23 May 2004; (b) as to a one quarter share, to Jaroslaw Szczudlik, a brother of the deceased, who survived the deceased, but who died on 7 April 2006; (c) as to a one quarter share, to be divided equally between the issue of Antoni Szczudlik, a brother of the deceased, who predeceased the deceased leaving issue alive, namely his two children, Ryszard Szczudlik and Irena Sala; and (d) as to a one quarter share, to be divided equally between the issue of Anna Lucyk (nee Szczudlik), a sister of the deceased, who predeceased the deceased, leaving issue alive, namely her two surviving children, Mariya Lucyk and Petro Lucyk (who died after the deceased), her third child, Wolodomyr, having died without issue; but, in each case, without prejudice to the rights of any person to trace his, or her, share, or shares of the estate, into the hands of the recipient, if it were ever established that that person survived the deceased, or otherwise as the case may be.
26. That the Plaintiff's costs, calculated on the indemnity basis, of the proceedings, be paid out of the estate of the deceased.
27. The Court Book be returned.

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: 15 October 2015