//
[2025] NSWSC 529
General information, not legal advice.
Supreme Court of NSW
2025-05-26
Slattery J
Original judgment source is linked above.
Zoe will write a short plain-English summary of this judgment and email it to you for free: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: The Estate of Arlene Veronica De Leon [2025] NSWSC 529
Hearing dates: 18 February 2025
Date of orders: 12 May 2025
Decision date: 26 May 2025
Jurisdiction: Equity – Probate and Family Provision List – Probate
Before: Slattery J
Decision: Letters of Administration granted to the plaintiff. Declaration that eldest sibling of the deceased was the child of the deceased’s parents. Plaintiff’s costs to be paid out of the estate on an indemnity basis.
Catchwords: SUCCESSION — Intestacy — distribution of estate – deceased dies with no spouse, no children and predeceased by her parents – whether the children of a person treated one of the deceased’s siblings are entitled to a distribution of a share of her estate under Succession Act 2005 s 129 – destruction of records in war – use of reputational evidence to find the person treated as a sibling was a sibling allowing distribution estate – application of the Status of Children Act s 9 – whether a Benjamin order is appropriate to allow distribution of the estate.
EVIDENCE — Hearsay — Exceptions — Reputation of public or general right – business records – contents of State issued death certificate – Evidence Act 1995 s 69 and s 73.
Legislation Cited: Births, Deaths and Marriages Registration Act 1995, s 57
Evidence Act 1995 (NSW) ss 69 & 73
Probate and Administration Act 1898 (NSW) s 63
Status of Children Act 1996 (NSW) s 9(1)
Succession Act 2006 (NSW) Pt 4.3 & s 129
Cases Cited: Application of NSW Trustee & Guardian (Estate of the late Betty Kathleen Foster) [2014] NSWSC 1857
Banbury Peerage Case (1811) 1 Sim & St 153
Gozales v Claridades [2003] NSWSC 508
Re Benjamin [1902] 1 Ch 723
Re Wingrave (dec’d) [1969] VR 120
Trustee and Guardian (Estate of Peter Urso) [2013] NSWSC 903
Wilcox v Poole [1974] 2 NSWLR 693
Texts Cited: J.D. Heydon, Cross on Evidence, Butterworths, Sydney, 2023, 14th ed, Ch 21.
Category: Principal judgment
Parties: Plaintiff: Grace Fatima Pinto
Representation: Counsel:
Plaintiff: C Wilson
Solicitors: Prospect Property & Estate Lawyers
File Number(s): 2024/163376
Publication restriction: Nil.
The blight of war endures for generations. The issues in this case arise from the destruction of records in the devastating World War II battles in the Bataan peninsula of the Central Luzon Region of the Philippines.
Arlene Veronica De Leon (“the deceased”) died intestate in Sydney on 13 January 2024, aged 73. She left no spouse or issue, and her parents are both deceased. She was, however, survived by her sister the plaintiff, Grace Fatima Pinto and by three of her other siblings, Lilian De Leon Pena (“Lilian”), Evelyn De Leon Nofuente (“Evelyn”), and Ernane Fausto Del Rosario De Leon (“Ernane”). These siblings are her next of kin.
But the family all recognise and accept that they had a fifth sibling, the eldest of the family. He was Nestor Del Rosario De Leon (“Nestor”), who family members believe was born in 1938, just before World War II ravaged the Philippines. Nestor died in January 2005. Yet no birth certificate for Nestor can be found in the Philippines to establish that he too is a child of the same parents. The massive destruction of the battles of Bataan explains its absence.
The plaintiff has applied for administration of the deceased’s small estate, which consists only of a refundable accommodation bond of $108,000 from an aged care facility.
As one of the deceased’s next of kin, the plaintiff is entitled to a grant of administration of her estate under Probate and Administration Act 1898 s 63. An applicant for administration of the estate of an intestate must establish that notice of the application has been given to all other living next of kin with an equal right to make a claim for administration of the estate.
The plaintiff has done that and is entitled to a grant of administration. Orders for a grant of administration of the estate to the plaintiff were made in chambers on 12 May 2025, following the Court’s review of requisitions from the Registry.
An issue has arisen about the distribution of the estate. The plaintiff has applied by motion for a Benjamin order, to allow the estate to be distributed by passing over Nestor’s entitlement, as the family have no birth records to prove that he is a sibling of the deceased.
These reasons dismiss the plaintiff’s motion for a Benjamin order and find that the available evidence is sufficient for the Court to declare that Nestor was a sibling of the deceased and that Nestor’s equal presumptive share of the deceased’s estate with the other siblings, the plaintiff, Lilian, Evelyn and Ernane, can be distributed to Nestor’s four children in satisfaction of their entitlements under Succession Act 2005, s 129(3).
The written and oral submissions on behalf of the plaintiff referred to family members by their first names. Without intending any disrespect, the Court will for convenience adopt the same practice.
The deceased was born on 2 February 1950 in Manila. Evidence established that she was the fifth of six children born to her parents, Marino and Miguela.
Family history passed down to the siblings was that Nestor was born on or about 1 May 1938 in the Bataan district of the Philippines, where the family lived and that he was the eldest surviving child of Marino and Miguela. Nestor died on 1 January 2005 in the Philippines. It is not disputed he was survived by his four children.
The deceased’s estate is modest, largely comprising a refundable accommodation deposit and a St George Bank account, with a gross value of approximately $108,000 and with a net distributable value of approximately $91,000.
In April 2024, the plaintiff, Grace, filed her application for a grant of letters of administration of the deceased’s estate. Requisitions raised issues, including whether Nestor had a sibling relationship to the deceased.
On 4 July 2024, following an enquiry by the solicitor for the plaintiff, the Municipal Civil Registrar of Mariveles, Bataan, informed the solicitor of the plaintiff:
“The records of births during the period PRIOR to 1945 were all destroyed by WORLD WAR II. Hence, we cannot issue as requested, a true transcription from the Register of Births or true copy of the Certification of live birth of NESTOR DEL ROSARIO DE LEON…”
This communication and a suggestion from one of the Court’s Registrars led to Grace filing a Notice of Motion on 2 December 2024 seeking a Benjamin o**rder to permit distribute the estate to the surviving siblings of the deceased, passing over Nestor’s children.
There is no animosity between Nestor’s children and other family members. The present application for a Benjamin o**rder was advanced as an idea to ensure the timely administration of the estate, given the difficulties in obtaining a birth certificate for Nestor.
The point at issue here is whether the existing evidence is sufficient to permit distribution of the deceased’s estate to Nestor’s children, or whether a Benjamin order should be made, pending the estate gathering further evidence as to the entitlement of Nestor’s children to a share in the estate.
Should Nestor be established to be a sibling of the deceased, Succession Act 2006 s129(3) provides that, because Nestor predeceased the deceased, Nestor’s four children would each be entitled to an equal share of Nestor’s presumptive share of the deceased’s estate. But their entitlement hinges upon establishing that Nestor is a sibling. If that cannot presently be established, then a Benjamin order may be a way of proceeding in the short term to allow distribution of the estate.
What is known as a Benjamin order is a possible, but not very satisfying, solution to the issue that arises in this case. The Court may make a Benjamin order (originating in Re Benjamin [1902] 1 Ch 723) to the effect that executors or administrators are at liberty to distribute an estate based on some assumed facts: Gozales v Claridades [2003] NSWSC 508 [75]. Those assumed facts commonly relate to a missing beneficiary, as they did in Re Benjamin, where orders were required to allow distribution of the estate, by passing over the identified, but unlocated, beneficiaries.
Mahoney J well described the purpose of such orders in Wilcox v Poole [1974] 2 NSWLR 693, at 697, stating:
“[a Benjamin order is] a beneficial one which may enable parties to have the early enjoyment of property to which they will, as a matter of practical certainty, ultimately become entitled.”
“[w]here 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 Application of NSW Trustee & Guardian (Estate of the late Betty Kathleen Foster) [2014] NSWSC 1857, Brereton J (as his Honour then was) explained another purpose of a Benjamin order is to “[protect] the executor from liability if a person entitled to a portion of the estate subsequently appears”.
But before proceeding down the path of a Benjamin order it is necessary to examine whether the existing evidence is sufficient to infer that Nestor was a sibling the deceased.
An official birth certificate from the Philippines would be the best evidence that Nestor was a sibling of the deceased. But such evidence will never be available. Nestor’s birth certificate was probably destroyed sometime between 1942 and 1945, when fierce battles took place on the Bataan Peninsula between Japanese and Allied forces at both the beginning and the end of the conflicts of the Pacific theatre during World War II. It appears that no attempt was ever made to replace Nestor’s birth certificate. Other potentially useful evidence has become unavailable. Nestor was buried in accordance with local custom in Bataan: his passport and driver’s licence were interred with him.
The next best evidence would be testimony from someone present at Nestor’s birth. But no such person can be identified due to the passage of time. The birth of a child may be proved under exceptions to the hearsay rule relating to the declarations of deceased persons: Cross on Evidence, Ch 21, section 2. But there is no evidence of such declarations having been made.
But Grace gives important evidence of her own memories of Nestor and how both her parents treated him:
“1. At all times during my lifetime my mother, Miguela De Leon and my father, Mariano De Leon…considered Nestor as their son and treated him as a mother/father would treat their son. There was no other person that was known or acted as Nestor’s mother, father or parents other than my parents.
2. Each of my siblings and I, together with my parents, would share in all things together as a family, including Christmas, Weddings, Birthdays, holidays, and other such events. Nestor was also considered and treated as my brother and I, his sister. He would refer to my parents as “mum” and “dad” respectively.”
This evidence together other reputational evidence from which it can clearly be inferred that Marino and Miguela were married, together with the application of the Status of Children Act 1996 can be used to fill the gap left by the absence of a birth certificate for Nestor.
The Status of Children Act 1996 reenacts prior legislation for the removal of legal disabilities of ex-nuptial children and to provide for parenting presumptions and parenting testing procedures. Reenacting the common law presumption to the same effect, the Status of Children Act s 9(1) provides:
“A child born to a woman during a marriage to which she is a party is presumed to be a child of the woman and her spouse.”
(1) This Act applies in respect of a person:
(a) whether born in New South Wales or elsewhere, and
(b) whether born before or after the commencement of this section, and
(c) whether a minor or not, and
(d) whether the person or the person's father or mother is or has ever been domiciled in New South Wales or not.
As indicated at common law it is only necessary to prove that the child was born or conceived during its mother’s marriage to her husband, the couple not being proved to be impotent, and having opportunities of access to each other during the period in which a child could have been conceived to enliven the rebuttable presumption of legitimacy: Banbury Peerage Case (1811) 1 Sim & St 153. The onus of proving illegitimacy lies on those denying legitimacy: Re Wingrave (dec’d) [1969] VR 120.
All the evidence in this case supports the presumption at common law and under the Status of Children Act s 9 that Nestor was a child of Marino and Miguela and provides no contrary evidence. Once again though the wartime destruction of records has removed evidence of the marriage of Nestor’s parents. Much like Nestor’s birth certificate, any trace of the marriage certificate of Marino and Miguela has been lost in either the first or second Philippines campaigns in World War II.
But the probable date of Marino and Miguela marriage (de facto or de jure) may be inferred from available documents.
The deceased’s mother, Miguela, also migrated to Australia and died in this jurisdiction. A NSW death certificate was issued upon her death on 11 July 1998. It is unclear how long she had resided in Australia. The death certificate reports upon key information:
Miguela was 83 years old at the time of her death in 1998.
Miguela was married at 21 years of age in Mariveles, Philippines to Marino.
Miguela had six children, in the following order:
(a) Nestor; (b) Evelyn; (c) Ernani [sic]; (d) Lilian; (e) Arlene (the deceased); and (f) Grace (the plaintiff).
Miguela was therefore born in about 1915, given that she was 83 years old in 1998. She would therefore have been 21 years old in 1936 when she married Marino, the deceased’s father. Based on the death certificate information is probable to infer that Miguela and Marino were married by the time of Nestor’s birth in 1938. The Status of Children Act, s 9 can be applied to infer that Nestor is a child of Miguela and Marino, and a sibling of the deceased.
The family information in the death certificate is largely a self-reported but comes within two exceptions to the hearsay rule. The representations made in the death certificate were probably provided either directly or indirectly by persons (such as Grace or the deceased who were domiciled in Australia at the time) whom it would reasonably be supposed to have had personal knowledge of the asserted fact: Evidence Act 1995*,* s 69(2)(b). Moreover, the representations in the death certificate were evidence of reputation concerning whether Miguela was married and whether there was a family relationship of mother and son between Miguela and Nestor and father and son between Marino and Nestor: Evidence Act*,* s 73. This inference is reinforced by the penalties against individuals for making false representations in documents created in the Register of births deaths and marriages: Births, Deaths and Marriages Registration Act 1995, s 57.
The evidence of Grace and the death certificate of Miguela both enable the Court to infer that it was a clearly accepted familial position that Nestor was the eldest child of the married couple, Miguela and Marino. The Court is satisfied that it should also infer that was the fact. The Court is therefore satisfied that Nestor is a sibling of the deceased.
The Court is also satisfied that:
the deceased died intestate;
the deceased had no spouse (de facto or de jure) at the time of her death;
the deceased had no children who survived her; and
the deceased’s parents predeceased her.
Therefore, the Court is satisfied that the deceased’s siblings are entitled to her estate under Succession Act s 129(2)(b). As Nestor did not survive the deceased, Nestor’s children are entitled to Nestor’s share of the deceased’s estate: Succession Act s 129(3)(a).
The beneficiaries of the deceased estate are all known. The Court will declare that Nestor was a sibling of the deceased and that his presumptive share of the estate should be distributed to his four children. This is what Grace wanted to do. A Benjamin order is unnecessary.
The Court makes the following orders:
DECLARES pursuant to ss 9 and 21 of the Status of Children Act 1996, that Nestor Del Rosario De Leon is a child of Miguela De Leon and Marino De Leon.
NOTES that Nestor Del Rosario De Leon predeceased Arlene Veronica De Leon (“the deceased”).
DECLARES that the following persons are entitled to benefit under the intestate estate of the deceased in the following portions:
(a) Grace Fatima Pinto: 20%; (b) Lilian De Leon Pena: 20%; (c) Evelyn De Leon Nofuente: 20%; (d) Ernane Fausto Del Rosario De Leon: 20%; (e) Jose Ferdinand Tolentino De Leon: 5%; (f) James Francis Tolentino De Leon: 5%; (g) John Frederick Tolentino De Leon: 5%; and (h) Jason Fouth Tolentino De Leon: 5%.
(a) any requirement for publication of notice of intention to make this application; (b) any requirement for an administration bond or sureties; and (c) further compliance with the rules in respect of this application.
**********