Judgment - EX TEMPORE
Revised and reissued 3 July 2018
These proceedings concern the estate of the late Henry Lewis Cooper who died in May 1996 at the age of 79. The plaintiff, the NSW Trustee and Guardian ("the Trustee"), is the administrator of his estate, having been appointed as such by order of the Court in July 1996. The deceased died without apparently having any close relatives. Searches in evidence show no record of his ever marrying or having any children. Affidavit evidence shows that he had no de facto wife. A notice of intended distribution of the estate was published in accordance with the then s 92 of the Wills, Probate and Administration Act 1898 (NSW) in August 1996, and no claim has been made to the Trustee by any person making any claim as next of kin. The gross value of the deceased's estate was approximately $47,000, and the amount now held following realisation of the deceased's assets and payment of liabilities is approximately $54,000.
In these proceedings the Trustee as plaintiff applies for what is known as a "Benjamin order" (after Re Benjamin [1902] 1 Ch 723) which would permit the Trustee to distribute the estate on the basis that there was no person entitled on the deceased's intestacy and the estate should, therefore, pass to the Crown as bona vacantia. Apparently a cousin of the deceased has foreshadowed a claim pursuant to the Probate and Administration Act 1898 (NSW), s 61B, should that happen.
The principles upon which a court acts in an application for a Benjamin order were set out by Brereton J in Application of NSW Trustee & Guardian [2014] NSWSC 1857. In that case, like this one, the deceased had died intestate before the commencement of the amendments to the then Wills, Probate and Administration Act made by the Succession Act 2006 (NSW); and the former provisions of s 61A to 61F therefore applied to define the order of distribution of a deceased's intestate estate amongst next of kin.
In summary, the order of distribution is, first, to the deceased's spouse or de facto spouse. Next, to the deceased's issue. Next, to the deceased's parents. Next, to the deceased's brothers and sisters of whole or half blood. Next, to the deceased's grandparents. And, next, to the deceased's uncles or aunts (that is, siblings of the deceased's parents).
As Brereton J explained at [4] - [5], a Benjamin order does not vary or destroy beneficial interests but merely authorises the distribution of the estate in accordance with the circumstances as they are revealed by the evidence. Accordingly, it is legitimate to make such an order even in cases where it is not absolutely clear that all potential claimants have been identified, so long as that possibility can fairly be described as a remote contingency.
The deceased's death certificate contained details for his parents, apparently supplied by a cousin as informant. Those details are fragmentary and, so far as the other evidence shows, incorrect.
The Trustee has identified or has located the deceased's birth certificate. The certificate shows the deceased under the name Lewis Cooper. It shows that the deceased was born in Katoomba, New South Wales, in September 1917. It shows his father as Gilbert Cooper, described as a labourer, and then aged 42 years. Gilbert Cooper is shown as born in the Megalong Valley, New South Wales. The certificate shows the deceased's mother as Alice Cox, then aged 44 years, and born in Glasgow, Scotland. Their date and place of marriage is shown as October 1914 in Katoomba, and they are described as having no previous issue.
The informant for the certificate was Gilbert Cooper, the father, who was shown as living at an address in Wells Street in Katoomba.
The Trustee has been unable to find a marriage certificate which coincides precisely with the details shown on the deceased's birth certificate. The certificate that has been identified is dated September 1914, not October. It shows the husband as Gilbert Cooper, labourer, then aged 40 years, which is relatively consistent with the birth certificate. But it shows the wife as Jessie Cox, not Alice Cox, and describes her as having been born in Edinburgh, not Glasgow, and being aged 39 (which is not consistent with an age of 44 three years later).
Searches have been made by the Trustee for any other children of Gilbert Cooper or Jessie Cox. Three birth certificates have been identified as showing children of Jessie Cox. They are Josiah George Cox, born in July 1903, at Paddington in Sydney; Phillip William Cox, born in May 1909 at Newtown in Sydney, and shown as subsequently having the name Phillip William Cooper; and Cyril Edward Roy Cox, born in June 1913 at Katoomba.
Gilbert Cooper died in May 1920. His death certificate is in evidence. It shows him living at Farnells Road, Katoomba, which is the same road shown on the birth certificate of Cyril Edward Roy Cox. It shows his place of marriage as being Katoomba, his age of marriage as being 39 and his widow's maiden name as being Jessie Cox, all of which are consistent with the marriage certificate. It shows only one child of the marriage, namely Lewis, then aged two, which is consistent with the deceased's birth certificate.
Searches which have been undertaken show that Gilbert Cooper was not married before his marriage to Jessie Cox in 1914, and he is shown as a bachelor on the marriage certificate. On the evidence which has been presented before me, I can be confident he had no children apart from those from his relationship with Jessie Cox.
Having been widowed in May 1920, Jessie Cox married again in 1934. The marriage certificate shows her then as being aged 60. She died in September 1949. Her death certificate puts her age at death as 75 years. It refers to two marriages, first the marriage to Gilbert Cooper and, second, the marriage to her second husband in 1934. His name was George Kearney.
Her death certificate shows three children, Philip W, Cyril ER and Henry L. Their ages are given at 40, 37 and 30, which are not completely consistent with their dates of birth as demonstrated by their birth certificates, but are relatively close. The death certificate shows her as having no other issue although, as I have stated, there is a birth certificate for Josiah George Cox.
The evidence shows that Josiah George Cox was fostered into a family by the name of Carter in around October 1905. His name was changed to Cecil George Carter. It is reasonable to suppose he was born out of wedlock and that is the reason for his being fostered. The fostering records show his father as Harry Forde, of whom nothing is apparently known.
Cecil George Carter, as he now was, married Olive Joyce Benfer in February 1943. He is described in the marriage certificate as a soldier. He died in June 1944 without issue. Cyril Edward Roy Cox, described on his death certificate as Cyril Edward Roy Cooper, died at the age of 58 in April 1969. He never married and left no children.
Philip William Cooper (born Philip William Cox) died at the age of 69 in April 1979. He also did not marry and had no children. A major asset in the deceased's estate was a share in Philip William Cooper's estate.
From the evidence there is a possibility that the deceased's father, Gilbert Cooper, was also the father of Philip William Cox, later Cooper, and of Cyril Edward Roy Cox, later known as Cooper. Whether that is so or not does not matter for present purposes. As I have stated, the evidence establishes with a high degree of probability that Gilbert Cooper had no other children and that Jessie Cox had no other children.
As I have mentioned, there are some inconsistencies in age shown on the various births and marriage certificates. The Trustee has obtained a birth certificate for a Jessie Cox born in Glasgow in 1877. That date of birth is inconsistent by a few years with the age of Alice Cox which appears in the deceased's birth certificate, and is also inconsistent by a few years with the age of Jessie Cox as appears in the marriage certificate. There is also the circumstance that the birth certificate records the mother as Alice Cox rather than Jessie Cox. Nonetheless, I think I can be satisfied with an appropriate degree of confidence that the Jessie Cox who was the mother of Josiah George Cox, Philip William Cox and Cyril Edward Roy Cox was also the mother of the deceased. The most likely explanation for the reference to Alice Cox in the birth certificate is that it was a mistake made by Gilbert Cooper, who was the informant. In fact, his mother's name was Alice.
I think that the details of other children shown in Jessie Cox's death certificate, combined with the fact the deceased inherited money from Philip William Cox, is enough to establish that they were indeed brothers.
The evidence thus satisfies me that both the deceased's parents and all of his siblings predeceased him. The remaining question is whether he was survived by any grandparents or siblings of his parents. The mere fact he was 79 years old when he died itself renders this extraordinarily unlikely. As it happens, there is evidence before me which affirmatively establishes that the parents of Jessie Cox and her siblings all died before the deceased.
So far as the deceased's paternal relations are concerned, Gilbert Cooper's mother is identified with first name Alice on his death certificate. Gilbert Cooper's father is shown as being unknown.
Alice Cooper's death certificate is in evidence. She died in April 1924. She was shown as being survived by five children (Gilbert Cooper, the deceased's father, had of course predeceased her). The evidence shows that all five of those children predeceased the deceased.
Alice Cooper's death certificate shows she was married to William Cooper. His death certificate does not appear to be in evidence, but the affidavit in support of this application says it did not show any issue. He may have been the father of one or more of the children of Alice Cooper, but there is no evidence that he was the father of any other sibling of the deceased's father, Gilbert Cooper.
Alice Cooper was apparently of Aboriginal extraction. In evidence are some extracts from a book concerning the Aboriginal families of the Megalong Valley. The author of the book raises the possibility that William Gaudry, a stockman from Upper Burragorang, was the father of some of her children, including possibly Gilbert Cooper, the father of the deceased.
William Gaudry died in September 1903. His death certificate records him as being the father of six living children and one male deceased child. It is not necessary to consider the supposition that he was the father of Gilbert Cooper in any more detail. The youngest surviving child on his death certificate was shown as being 29 years old in 1903. The probability that he or any of his older siblings survived the deceased, when the deceased died in 1996, is too remote to require any further consideration.
For these reasons I am satisfied, on the evidence, that the possibility there were some person entitled to the deceased's estate when the deceased died intestate in 1996 is so remote that it may be disregarded, and that a Benjamin order should be made authorising the Trustee to transfer the estate to the Crown as bona vacantia.
The Trustee sought an order that its costs be paid on an indemnity basis out of the estate. In the ordinary course, the Trustee's costs would be dealt with as part of the process of it filing its accounts and seeking approval for the expenditure which it has made in the course of administering the estate. The Court has power to make an order shortcutting that process, and such orders are frequently made in proceedings such as this. But I do not consider it appropriate to make such an order in these proceedings, at least at this point. As I have already recorded, the deceased died in 1996 and the advertisement for claimants to come forward was published as long ago as August 1996. That is more than 21 years ago. The evidence before me did not explain why it is that it has taken the Trustee so long to make this application.
On the face of it, the delay has caused a serious injustice to the Crown as the party entitled to receive the moneys, since the effect of the moneys remaining locked up in the administration has been that they have accrued only interest at very small rates, far below what would be achieved through ordinary investments. There may be some explanation for this but, as I have said, it has not been provided to me.
Counsel for the Trustee submitted that the question whether the estate had been administered in a proper and timely way was conceptually distinct from the question whether the Trustee is entitled to receive an order for the costs of this application. Up to a point that is correct, but I do not think the two can be completely separated. It may be that on full information being provided to the court, the Court would consider some order other than an order that the Trustee now receive indemnity costs would be appropriate to reflect the delay. As I suggested in argument with counsel, the Court might consider that the appropriate course would be to allow costs only at the rates that would have been applicable had the application been made in 1996 or 1997. Alternatively, the Court might decline the Trustee's request for costs entirely.
The other consideration is a practical one. If the Court accedes to the application it seems very unlikely that the Trustee would have any incentive to explain or justify its conduct. Counsel submitted that in the ordinary course the Crown would receive an account from the Trustee which would show that the estate dated from 1996 and had only been wound up in 2018. That may be so, but I consider that the court might require the Trustee to be more forthcoming in dealing with the Crown, who is effectively the beneficiary.
The Court requires a high degree of integrity from the Trustee, and expects the Trustee to make full disclosure to beneficiaries who are affected by its conduct even where such disclosure might be embarrassing or lead to the potential for criticisms of the Trustee or claims being made against it. I think if I were to accede to the application at this point there would be a risk that the question about the delay could be swept under the carpet.
In saying this, I do not want to suggest that I have prejudged the Trustee's position. There may well be an explanation for what has happened. All I am saying is that I am not prepared, on the material before the Court at present, and on the submissions which have been presented to this point, to accede to the Trustee's application. I will, however, as requested by counsel for the Trustee as a fall back, grant the Trustee liberty to apply further with respect to costs should it consider that is appropriate.
The orders of the Court are:
Order that the plaintiff be justified in distributing the estate of the late Henry Lewis Cooper, hereinafter referred to as "the deceased," on the basis that the deceased was not survived by any next of kin and his estate therefore belongs to the Crown as bona vacantia, but without prejudice to the rights of any person to trace his or her share into the hands of the recipient if it be established that they survive the deceased or otherwise as the case may be;
Grant the plaintiff liberty to apply with respect to the costs of these proceedings, such liberty to be exercised within 28 days of today's date.
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Decision last updated: 03 July 2018