Whithorne v Harris [2009] NSWSC 206 | Case summary

2772 of 2007 Application of ALLAN GORDON MARAIS JUDGMENT 1 HIS HONOUR: By summons filed on 17 May 2007 Allan Gordon Marais seeks the opinion, advice or direction of the Court upon the facts and questions contained in a statement of facts, pursuant to section 63 of the Trustee Act 1925. Subsequently, an amended statement of facts was filed on 13 February 2009. 2 The plaintiff is the executor of the estate of the late Charles Francis Peterman (to whom I shall refer as "the deceased"). The deceased died on 20 February 2004, leaving a will dated 9 July 2003. Probate of that will was on 15 August 2005 granted to the plaintiff, who was the executor named therein. The will, which is handwritten on a printed will form, provides in clause 3 as follows, "I give one half of my estate to my remaining relatives and one half to Allan Gordon Marais." 3 The inventory of property discloses assets totalling slightly in excess of $731,000. The one half of the estate which was by will given to the plaintiff has been distributed. However, the remaining one half remains undistributed. 4 Several problems are thrown up by the provision of the will giving one half of the estate to "my remaining relatives". One problem is the construction of that phrase. Another problem is the identification of the person or persons who may be encompassed by that phrase. A further problem is the interest in the estate, either in proportion or in monetary terms, to which such persons might be entitled. 5 I have had the benefit of receiving a written outline of submissions from Counsel for the plaintiff, filed on 10 February 2009. That document will be retained in the Court file. 6 The deceased originally came from America, but resided in Australia for many years to the time of his death. The plaintiff, who was the deceased's financial planner, had been acquainted with the deceased for about six years preceding his death. The plaintiff is not related to the deceased in any way. During his lifetime the deceased informed the plaintiff that he had never married and had had no children. He also informed the plaintiff that his parents had died before him, his mother Alice Peterman having died on 22 April 1951 and his father Julius Peterman having died on 12 August 1967. 7 The plaintiff has undertaken various searches, inquiries and investigations in respect to kinsfolk and relations of the deceased. A search in the New South Wales Births, Deaths and Marriages Registry discloses no marriages of the deceased and no children of the deceased for the period from 1974 to 2004. The plaintiff has engaged the services of an entity, International Detection Services, to conduct inquiries and investigations in the United States of America. Those inquiries and investigations reveal that the deceased had siblings, being two sisters, Florence Delphine Deignan and Alice Marie Thompson. I shall for convenience refer to those siblings and to various other persons related to the deceased by their respective given names. 8 Florence was born on 28 February 1924 and died on 11 August 1969. Of her marriage Florence had two children, Michael Robert (who was born on 20 November 1944 and died on 9 September 1985) and Francis Leo (who was born in September 1947 and is still living). Michael Robert himself had two children, being Michael (who was born in December 1966 and is still living) and Jacqueline (who was born on 25 July 1969 and died on 12 October 1980). That is, of the issue of Florence there are living one son, Francis, and one grandchild, Michael. 9 The other sibling of the deceased was Alice Marie Thompson, who was born on 30 December 1922 and died on 15 October 1957. She married and had three children, being Linda, Marguerite and Robert (known also as Robin or Robby). No information concerning Linda, Marguerite or Robert has been able to be obtained, despite various searches, inquiries and newspaper advertisements. It is not known whether any of those persons are still alive or whether, if deceased, any of those persons left issue. 10 I have referred to the first problem in this matter, which is one of construction of the phrase "my remaining relatives" used in the will. I have been taken by Counsel for the plaintiff to a number of decided cases in which a phrase including the word "relatives" or "my relatives" or similar words has been used. There have been a number of judicial decisions in which such a phrase has been considered. Those decisions include in Re Knox (Deceased) (1910) 29 NZLR 1179, in Re Griffiths [1926] VLR 212, Smith v Campbell (1815) 19 Ves.400; 34 ER 566, Whithorne v Harris (1754) 2 Ves.Sen. 527; 28 ER 337 and Re Fox [1997] 1 Qd R 43. In addition, I have been taken to Theobald on Wills, 15th ed (1993) and Tristram & Coote's Probate Practice 29th ed (2002). 11 The effect of those various authorities appears to be that, when confronted with a choice between holding a gift in the terms of the present gift to "my remaining relatives" or some similar phrase as being void for uncertainty and giving some meaning to that phrase, the phrase should be given some effect and should be construed as having the same effect as a gift to the persons entitled to take upon intestacy. 12 In the instant case I do not consider the subject provision in the will to be void for uncertainty. I consider that the foregoing construction (being to the same effect as a gift to the persons entitled to take upon intestacy) is the appropriate construction which should be given to the phrase in clause 3 of the will of the deceased. 13 The next question to be considered is the identity of the persons coming within the description "my remaining relatives". As I have stated, they are the persons who are entitled to take one half of the estate as if it were being administered upon intestacy. 14 The relevant statutory provisions which here have application are those set forth in section 61B(6) of the Probate and Administration Act 1898. That section provides, relevantly: If the intestate leaves no husband or wife, 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. 15 The phrase "statutory trust" is described in section 61C of the Act. The effect of subsection (3) of that section is to substitute, in the circumstances of the instant case, the words "brother or sister" for the word "child" and the words "brothers or sisters" for the word "children" appearing in paragraph (a) of subsection (1) of section 61C, and the words "brother or sister" for the word "child" in paragraph (b) of that subsection. In this regard I would refer to the decision of Young J (as he then was) in Re Boyd (No 2) (Supreme Court of New South Wales, 19 July 1995 unreported) and also to the decision of Master Macready (as he then was) in Public Trustee v Solah [1999] NSWSC 660 (2 July 1999). 16 The effect, therefore, of the foregoing provisions of section 61B(6)(a), as qualified by section 61C(1) and (3), is that the persons who would be entitled upon intestacy to the one half share of the estate of the deceased left to "my remaining relatives" are the presently surviving issue of the two siblings of the deceased - that is, the issue respectively of Florence and of Alice. 17 In the case of the issue of Florence, the identity of those persons has been established. They are Francis Leo, who is a son of Florence; and Michael, who is the surviving child of the other child of Florence. 18 It has not been possible to establish the identity of the issue of Alice. It is not known whether any of Alice's three children are still alive or if deceased, whether such deceased child or children left issue, or, if so, the identity of such issue. 19 The various authorities to which I have earlier referred concerning the distribution among persons coming within the description in a phrase such as "my remaining relatives" reveals that the distribution amongst such persons when identified should be a distribution per capita. That is, that each such person should take equally. A distribution in such manner is in contradistinction to the distribution which would take place if there were here to have been an intestacy. Were there here an intestacy, then the manner of distribution is governed by the provisions of subsection (2) of section 61C of the Probate and Administration Act. That subsection provides: The issue referred to in subsection (1)(b) shall take through all degrees, according to their stocks, in equal shares if more than one, the share which their parents would have taken if living at the death of the intestate.

20 The phrase "according to their stocks" in the foregoing subsection is more frequently replaced in the cases and in the textbooks by the phrase "per stirpes", a Latin phrase, which is used in contradistinction to the other Latin phrase "per capita". It follows therefore that, if there was to be a distribution of half the estate upon intestacy, the proportion to be taken by each of Francis and Michael would be known, since each of those persons would be entitled per stirpes to share the interest of, in the case of Francis, his mother; and, in the case of Michael, his grandmother. That is, each of those persons would share equally the interest of Florence. Since Florence, if living, would upon intestacy take half of the half share of the estate, therefore Francis and Michael would share that one half and each take one quarter of that half share. The remaining one half of the half share of the estate would then be held for the issue of Alice when such issue could be located or identified. 21 The present problem, however, is that in the circumstances of the instant case the half share with which the Court is presently concerned is not a half share to be distributed upon intestacy. It is a half share to be distributed amongst a class identified in the will itself as "my remaining relatives", the members of which class are the persons entitled to take upon intestacy. But the authorities, as I have already observed, make it clear that each member of that class is entitled to take equally. That is, each member will take per capita. The problem then is apparent. Until the number of members of the class is established it cannot be known what share, even what minimum share, each of Francis and Michael is entitled to take. 22 The courts have managed to overcome a problem such as this by making an order which in the cases is now referred to as a Benjamin order. That description arises from the decision of Joyce J in Re Benjamin [1902] 1 Ch 723. In that case His Lordship made an order the effect of which was to allow the distribution of the estate to persons who fell within the class entitled to share the estate but the proportion to which each of those members of that class would be entitled could not then be ascertained. His Lordship made an order in terms that the order should be without prejudice to the entitlement of any other members of the class who subsequently might be located or identified, then to make a claim and be entitled to trace the funds which had been distributed to the already identified members of the class. 23 It seems to me that it is appropriate in the circumstances of the instant case that I should make an order in the nature of the Benjamin order. An order along similar lines was made in such cases as In the Will of Walker [1943] 43 SR (NSW) 305, Re Eleanor Taylor's Estate and Will Trusts [1969] 2 Ch 245 and Re Plato [1989] 2 NZLR 360. In this regard I would also refer to what was said by Master Macready (as he then was) in Public Trustee v Solah especially at paragraphs 2 and 15 and also to the discussion of the nature and purpose of Benjamin orders by Campbell J (as he then was) in Gonzales v Claridades [2003] NSWSC 508; (2003) 58 NSWLR 188, and to the various authorities referred to therein by His Honour. 24 Accordingly, I propose to make an order which will enable the one half share of the estate given to "my remaining relatives" to be distributed between Francis and Michael, but without prejudice to the right of any of the issue of Alice, if and when identified or located, to claim a share in the estate and to trace distributed assets in the hand of Francis and Michael. 25 The orders which I make are as follows: 1. The Court gives its opinion, advice and direction upon the question posed in paragraph 14 in the amended statement of facts filed on 13 February 2009 as follows: (a) No; (b) Yes; (c) Yes; (d) No; (e) No other steps should be taken by the Plaintiff executor in relation to the gift; (f) No other person need presently be joined as a Defendant to the proceedings.

Whithorne v Harris

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Judgment (13 paragraphs)

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