Supreme Court New South Wales Medium Neutral Citation: Application by Peter John Clark (Estate of John Andrew Wardell) [2022] NSWSC 798 Hearing dates: In Chambers and on the papers Date of orders: 16 June 2022 Decision date: 16 June 2022 Jurisdiction: Equity Before: Hallen J Decision: Orders set out in [44] Catchwords: SUCCESSION – Administration of estates – The deceased died intestate in 2020 – The first Plaintiff, the uncle of the deceased, seeks letters of administration – First necessary to determine the persons entitled on intestacy in order to ascertain whether he has a beneficial interest in the deceased's estate – First Plaintiff seeks order giving liberty to distribute the estate on particular basis – Searches do not reveal identity of deceased's father – Whether any further searches would reveal identity – Benjamin Order made – Determination of matters in doubt to enable entitlement to distribution and then administration of deceased's estate – First Plaintiff justified in distributing the estate to himself as uncle of the deceased – Order also made that the Plaintiffs' costs of the proceedings, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate of the deceased Legislation Cited: Succession Act 2006 (NSW) ch 4, ss 102, 111, 127(1), 128, 129, 130, 131 Cases Cited: Application by NSW Trustee & Guardian (Estate of the late Marko Sijakovic) [2012] NSWSC 1532 Application by NSW Trustee and Guardian (Estate of the late Frederick John Vermaak) [2016] NSWSC 1436 Application of Harnett and Cutts [2016] NSWSC 427 Application of NSW Trustee & Guardian (2014) 14 ASTLR 436; [2014] NSWSC 1857 Application of NSW Trustee & Guardian; Estate of Dudley Keith Vaughn [2019] NSWSC 850 In re Lowe's Will Trusts [1973] 1 WLR 882 In the Estate of Chave (1930) 30 SR (NSW) 180 In the Estate of Stanley George Mizon (deceased) [2021] ACTSC 240 NSW Trustee & Guardian; In the Estate of Francis [2014] NSWSC 123 NSW Trustee & Guardian; In the Estate of Rex [2015] NSWSC 841 NSW Trustee and Guardian (Estate of Peter Urso) [2013] NSWSC 903 Public Trustee v Kehagias [2009] NSWSC 972 Re Benjamin; Neville v Benjamin [1902] 1 Ch 723 Re Gess; Gess v Royal Exchange Assurance [1942] Ch 37 Re McCormack (1902) 2 SR (NSW) B&P 48 Reidy as Court appointed Trustee [2021] NSWSC 836 Texts Cited: Alexander Learmonth, Charlotte Ford, Julia Clark and John Ross Martyn, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (21st ed, 2018, Sweet & Maxwell) Category: Principal judgment Parties: Peter John Clark (first Plaintiff) Peter Dean Steele (second Plaintiff) Representation: Counsel: Dr S Chapple (Plaintiffs) Solicitors: Tonkin Drysdale Partners (Plaintiffs) File Number(s): 2020/185344 Publication restriction: Nil Judgment The Proceedings 1. These proceedings concern the estate of John Andrew Wardell (the deceased), who died, intestate, on 4 June 2020. The first Plaintiff, Peter John Clark, who is the uncle of the deceased, on 15 April 2022, filed a Summons for Administration, appropriate in an uncontested application, seeking a general grant of letters of administration to him, and an order that the administration bond be dispensed with together with some affidavits in support. 2. On 7 May 2021, a deputy Registrar in Probate, on the basis of the evidence then filed, issued a requisition that pointed out that the first Plaintiff appeared to have no beneficial interest in the estate, and, accordingly, that unless special circumstances were shown to exist as would justify the Court exercising its discretion to make a grant, "the application in its present form will be rejected". The learned Registrar made reference to the proposition that, in the absence of special circumstances, the Court will refuse to grant letters of administration to a stranger in interest and even the consent of the next-of-kin cannot be treated as a sufficient ground to support the application: In the Estate of Chave (1930) 30 SR (NSW) 180. (Also see, Re McCormack (1902) 2 SR (NSW) B&P 48.) 3. The deputy Registrar, no doubt, in order to assist the Plaintiff's legal representatives, also pointed out that "each class of persons in Chapter 4 of the Succession Act who would have a higher priority must be shown not to exist, or to have predeceased the [intestate] before the next class can be considered…". Presumably, she was of the opinion, then, that insufficient inquiries had been made. 4. (Although I digress, there is little doubt that the Court, in some applications, may require an applicant to furnish more information, or material, in support of the application. For the benefit of the profession, it is important to highlight that, by reason of the ex parte nature of the type of application initially made, the applicant and those advising him, or her, owe a duty of full and frank disclosure to the court. They also have a duty to exercise due diligence in ensuring that the relevant information is provided to the court. Thus, the court expects a legal practitioner acting for an applicant for a grant, to have carried out all necessary investigations pertaining to the application (including investigation on matters relevant to the issue of priority and entitlement to the grant). If proper investigation is made, the application should be supported with the relevant evidence and once this is done, the process of application for grant should not be a difficult one. Otherwise, the unfortunate consequences are delay and costs being added to the application.) 5. On 20 April 2022, the Plaintiffs' solicitors responded to the requisition, and sent to the Probate Registry an amended Summons and additional affidavits. In the amended Summons, the first Plaintiff added his solicitor, Paul Damian Tonkin, as a second Plaintiff, and sought, by way of interim relief, a special grant of administration ad colligenda bona defuncti, as well as a final grant of letters of administration to the second Plaintiff only. 6. In addition to the application for administration, the Plaintiffs sought an order that "in the absence of any evidence that the father of the deceased survived the deceased, the Second Plaintiff is justified in distributing the intestate estate of the deceased upon the footing that the father of the deceased did not survive the deceased such that the whole of the deceased's estate will be distributed to the First Plaintiff, but without prejudice to the rights of the deceased's father, or those claiming through him, to trace his or their share into the hands of the First Plaintiff if it were ever established that the deceased's father survived the deceased". The Plaintiffs also sought an order for costs. 7. The proceedings were listed in the Succession List on 16 May 2022, and on that date, Dr S Chapple of counsel appeared for the Plaintiffs. There was no appearance by, or on behalf of, any other person. The Court made directions and stood the proceedings over until 14 June 2022. 8. In partial compliance with the directions, on 3 June 2022, the Plaintiffs provided the Court with a proposed further amended Summons (removing Mr Tonkin as the second Plaintiff, and substituting another solicitor, at his firm, Peter Dean Steele, as the second Plaintiff, removing the claim for the special grant of letters of administration, and seeking a grant of letters of administration to Mr Steele, alone). Counsel also provided comprehensive written submissions (for which I am grateful). 9. On 7 June 2022, having considered the documents in the Court file, I formed the view that the Court should provide written reasons. In an email sent to the legal practitioners of the Plaintiffs, they were informed that unless there was a reason for oral submissions to be made, the Court would administratively vacate the hearing on 14 June 2022, and provide written reasons as soon as reasonably possible. 10. Shortly after sending the email, counsel for the Plaintiffs, by email, responded that no oral submissions were required to be made, and that the Plaintiffs consented to the course proposed. Background Facts 1. I have taken what follows from the affidavits that have been filed in the proceedings. 2. The deceased was 57 years old at the time of his death, having been born on 5 January 1963. 3. His estate is said to consist of a property located at Revesby, a suburb of Sydney, NSW ("the Revesby property") ($1,200,000), money in bank ($2,358); three motor vehicles (of negligible value), collectible army miniatures (of negligible value) and a credit with Sydney Water ($2,345). 4. Since the death of the deceased, the first Plaintiff has paid debts, funeral and testamentary expenses totalling $10,082. 5. The first Plaintiff, on several occasions, searched the Revesby property for any document that was, or purported to be, testamentary. He found a will template, headed "This is the last Will and Testament of Me", that had not been completed, but no other documents of a testamentary nature. 6. The first Plaintiff also instructed his solicitor to contact the NSW Trustee and Guardian, the Supreme Court of New South Wales, Westpac Banking Corporation and St George Bank Limited, as well as solicitors practising in the Revesby area, to ascertain whether any testamentary document was held. No testamentary document was located. 7. The first Plaintiff gave evidence that: 1. He had known the deceased for almost his whole life, and, more closely, after he returned to Australia, and that he had a close relationship with him. 2. The deceased was never married. The first Plaintiff did not know of any person who was a party to a domestic partnership with the deceased immediately before the deceased's death and the deceased had no known issue. 3. The deceased's mother was Margaret Anne Chiotis (Anne). She was born in April 1939 and died in September 2016. The first Plaintiff is her brother. 4. The deceased's Birth Certificate does not reveal the name of the deceased's father. 5. The deceased had no siblings. Because the identity of his father is not known, the deceased's siblings of the half-blood, if any, are also unknown and cannot be located. 6. The first Plaintiff was 10 years younger than his sister, Anne. However, he knew Anne for the whole of his life. She had been married twice. Her first marriage, in 1977, was to Donald White, but it ended in divorce. Her second husband was Hugh McAdam, to whom she was married from 1982 until his death in about 2001. Neither of these marriages produced any child or children. 7. Anne had two siblings, the first Plaintiff, who was born in December 1949, and Colleen Mary Chiotis, who was born in June 1947, and who died in May 1982, leaving no issue. 8. The deceased's paternal aunts and uncles, if any, are unknown, and cannot be located due to the fact that the identity of the deceased's father is unknown. 9. The deceased's maternal grandparents were Eric Francis Chiotis and Irene Chiotis. Eric died in February 1961 and Irene died in October 1999. 10. Because the identity of his father is not known, the deceased's paternal grandparents are unknown and cannot be located. 1. The first Plaintiff also provided evidence of the searches carried out to discover the identity of the deceased's father. The searches revealed that: 1. The deceased's maternal grandmother, Irene, was very religious. In about mid-1962, the deceased's mother announced that she was going to New Zealand for a working holiday. The deceased was born in New Zealand in January 1963. It was known, at least within the family, that the trip to New Zealand was instigated in order to avoid any criticism that might have been made of the deceased's mother having given birth to a child outside marriage. The deceased's grandmother insisted that the family tell people that her daughter had married in New Zealand and that, following the birth of the deceased, her husband had run off. 2. The deceased never told the first Plaintiff that he knew the name of his father. 3. The deceased and his mother, lived with the first Plaintiff for a period of time. During this time, the name of the deceased's father was not revealed to the first Plaintiff by his sister, Anne. However, the first Plaintiff recalls overhearing a conversation between his sister and his grandmother in which the name "John" was used in reference to the deceased's father. 4. There is no suggestion that the deceased's mother took any steps to establish the paternity of the deceased, for example, by way of parentage testing order or by means of procuring a maintenance order during the deceased's infancy. 5. Following the deceased's death, the Plaintiff conducted searches to obtain information relating to the deceased's father. He found a diary, which belonged to the deceased's mother, reviewed it, and identified a reference to "John", whom she met in April 1962. He searched for a man named "John Burns", who, the first Plaintiff recalled, was a friend of the deceased's mother in the early 1960s. He was informed that Mr Burns had died. 6. When clearing the Revesby property, the first Plaintiff also located newspaper clippings kept by the deceased's mother, which referred to one "John Waddell". The name "John", and the similarity of the last name to the deceased's last name "Wardell", led the first Plaintiff to investigate further. He identified this man as John Bryson Waddell, who was born on 28 September 1933 and who died on 23 April 2011. (Of course, it was not known whether he was the father of the deceased.) 7. To complete his searches, the first Plaintiff published advertisements seeking information going to the whereabouts of the travelling companions of the deceased's mother, from her time in New Zealand, and also information as to the whereabouts of the deceased's father. The advertisements did not result in any additional information being revealed. 8. No evidence has emerged that either John Burns, or John Bryson Waddell, admitted, during his lifetime, that the deceased was his son. 1. I am satisfied that the first Plaintiff has made bona fide, and determined, attempts to identify, and locate, the deceased's father. Whilst it may be that either John Burns, or John Bryson Waddell, was the deceased's father, the information available is largely speculative. It is not possible, on the balance of probabilities, to conclude that either person was the father of the deceased. 2. Without being able to identify, or locate, the deceased's father, it is also impossible to identify whether the deceased had any siblings of the half-blood, the identity of his paternal grandparents, or the deceased's paternal aunts and uncles. 3. There are three questions which require determination. The first relates to the persons entitled to share the deceased's estate under the operation of the rules of intestacy. The second relates to what is described as a "Benjamin order". The third relates to whether there should be a grant of administration to the first Plaintiff (which answer will depend upon the answers to the first and second question). The Law 1. Since the deceased was 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 scheme of distribution on intestacy, as at the date of the deceased's death, is revealed by Chapter 4 of the Succession Act 2006 (NSW). 3. Relevantly, s 102 provides that an intestate is a person who dies, and either does not leave a will, or leaves a will, but does not dispose, effectively, by will, of all, or part, of his, or her, property. As stated, in this case, the deceased died not leaving a will. 4. Section 111 provides that if an intestate leaves a spouse, but no issue, the spouse is entitled to the whole of the intestate estate. In this case, the deceased left no spouse. 5. Section 127(1) provides that if an intestate leaves no spouse but leaves issue, the intestate's children are entitled to the whole of the intestate estate. In this case, the deceased left no issue. 6. Section 128 provides that if the intestate leaves no spouse, and no issue, his, or her, parents are entitled to the whole of the intestate estate. If there is only one surviving parent, the entitlement vests in the parent and, if both survive, it vests in equal shares. In this case, the mother of the deceased predeceased the deceased and the identity of the deceased's father is unknown and cannot be ascertained. 7. Section 129 provides that if the intestate leaves no spouse, and no issue, and no parents, the brothers and sisters of an intestate are entitled to the whole of the intestate estate. If no brother or sister predeceased the intestate leaving issue who survived the intestate, then if only one survives, the entitlement vests in the surviving brother or sister, or if 2 or more survive, the entitlement vests in them in equal shares. If a brother or sister predeceased the intestate leaving issue who survived the intestate, allowance must be made in the division of the estate between brothers and sisters for the presumptive share of any such deceased brother or sister, and the presumptive share of any such deceased brother or sister is to be divided between the brother's or sister's children and, if any of these children predeceased the intestate leaving issue who survived the intestate, the deceased child's presumptive share is to be divided between the child's children (again allowing for the presumptive share of a grandchild of a deceased brother or sister who predeceased the intestate leaving issue who survived the intestate), and so on until the entitlement is exhausted. 8. In this case, there are no known siblings of the deceased. 9. Section 130 of the Act provides that if the intestate leaves (a) no spouse, and (b) no issue, and (c) no parent, and (d) no brother or sister, or issue of a deceased brother or sister, the grandparents of an intestate are entitled to the whole of an intestate estate. If there is only one surviving grandparent, the entitlement vests in that grandparent and, if 2 or more survive, it vests in them in equal shares. In this case, the maternal grandparents of the deceased predeceased the deceased. His paternal grandparents are not known. 10. Section 131 provides that if the intestate left (a) no spouse, and (b) no issue, and (c) no parent, and (d) no brother or sister, or issue of a deceased brother or sister, and (e) no grandparent, the brothers and sisters of each of an intestate's parents are entitled to the whole of the intestate estate. (There is no evidence of the issue of any other brothers or sisters, or uncles or aunts, of the deceased who died before him.) 11. In Alexander Learmonth, Charlotte Ford, Julia Clark and John Ross Martyn, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (21st ed, 2018, Sweet & Maxwell) at [65-18], the learned editors state: "Distribution may be held up because the representatives cannot be sure who is entitled. Thus a person's right to share in the estate may turn on the question whether another predeceased the testator, or predeceased him without issue, and it may be uncertain on the facts whether this happened. In these circumstances, the representatives may apply to the court for a 'Benjamin' order, that is, an order permitting them to distribute the estate on the footing that certain events have or have not happened. This relieves the representatives of liability in their capacity as representatives should the hypothesis on which they are to be permitted to distribute turn out to be wrong. Thus, where a beneficiary who was thought to have predeceased a testator subsequently appears, he will not be entitled to bring a claim against the representatives for his share of the estate. He may, however, be entitled to claim in equity against the beneficiaries who have been wrongly paid or perhaps bring a tracing action against the recipients of the share." (citations omitted) 1. In a case, such as this one, there is uncertainty about a factual matter relevant to the distribution of a deceased person's estate. Thus, the Court may, in certain circumstances, make an order that the executor or administrator is at liberty to distribute on some particular factual basis. It is this type of order that is termed "a Benjamin order". It derives from the case of Re Benjamin; Neville v Benjamin [1902] 1 Ch 723. 2. The requisite basis for a Benjamin order is "evidence of practical impossibility of proof of the fact or event sought to be established": Re Gess; Gess v Royal Exchange Assurance [1942] Ch 37 (Morton J), or where every reasonable step has been taken to trace the individual in question and it is most improbable that any such individual would ever establish a claim: In re Lowe's Will Trusts [1973] 1 WLR 882 at 887. 3. As stated above, the first Plaintiff seeks a Benjamin order in respect of the distribution of the estate, which order, if made, will enable the administration of the deceased's estate to be completed. 4. Brereton J in Application of NSW Trustee & Guardian (2014) 14 ASTLR 436 at 438; [2014] NSWSC 1857 at [4]-[5] wrote: "A 'Benjamin order' … permits the executor or administrator of a deceased's estate to distribute the estate on a particular factual basis notwithstanding that there is some uncertainty about a factual matter relevant to the distribution, such as the existence of particular beneficiaries, protecting the executor from liability if a person entitled to a portion of the estate subsequently appears, without affecting the legal rights of such a person who, though not entitled to make a claim against the executor for that portion, may claim against beneficiaries who have been incorrectly paid [see generally Gonzales v Claridades [2003] NSWSC 508; (2003) 58 NSWLR 188, [75] (Campbell J); Lempens v Reid [2009] SASC 179, [32] (Gray J); Application by NSW Trustee and Guardian (Estate of the late Marco Sijakovic) [2012] NSWSC 1532, [23]-[25] (Hallen J)]. A Benjamin order does not vary or destroy beneficial interests, but merely enables trust property to be distributed in accordance with the practical probabilities [Hansell v Spink [1943] Ch 396, 399; Re Green's Will Trusts; Fitzgerald-Hart and another v Attorney General and others [1985] 3 All ER 455, 462]. Although the particular basis set out in the order reflects inferences from the proved facts, the order is not a positive declaration of rights [D H Parry & J B Clark, The Law of Succession, (10th ed 1996, Sweet & Maxwell) at 471-2] …" 1. In Application by NSW Trustee & Guardian (Estate of the late Marko Sijakovic) [2012] NSWSC 1532 at [23]-[25], and in NSW Trustee and Guardian (Estate of Peter Urso) [2013] NSWSC 903 at [38]-[40], I discussed Benjamin orders in some detail. It is not necessary to repeat what I wrote in those cases. 2. I note that what I wrote was followed by Kunc J in NSW Trustee & Guardian; In the Estate of Francis [2014] NSWSC 123 at [2] and in NSW Trustee & Guardian; In the Estate of Rex [2015] NSWSC 841 at [8]; by Pembroke J in Application of Harnett and Cutts [2016] NSWSC 427 at [2]-[3]; by Slattery J in Application by NSW Trustee and Guardian (Estate of the late Frederick John Vermaak) [2016] NSWSC 1436 at [8]–[9]; by Henry J in Application by NSW Trustee and Guardian; Estate of Esme Veronica Hennessy [2019] NSWSC 340 at [11] and in Application of NSW Trustee & Guardian; Estate of Dudley Keith Vaughn [2019] NSWSC 850 at [11]; by Ward CJ in Eq in Reidy as Court appointed Trustee [2021] NSWSC 836 at [20]; and by McWilliam AsJ in In the Estate of Stanley George Mizon (deceased) [2021] ACTSC 240 at [21]. 3. Having regard to all of the evidence, I am satisfied that there is no utility in continuing any further searches concerning the identity of the deceased's father, and any of his next of kin who may have survived him. Ascertaining the identity of the deceased's father appears to have ended with the death of the deceased's mother, who went to her grave not having revealed his identity. 4. It is probable that the persons entitled on intestacy have been ascertained, so far as they can be, and that all avenues of further search have been exhausted. No further searches are likely to improve the state of the evidence. The chances of ascertaining the identity of the deceased's father now, and the identity of any remoter next of kin, may be properly characterised as remote, if not impossible. The time has come to put an end to further search. 5. Then, applying Chapter 4 of the Act, it appears that the first Plaintiff, as the brother of the deceased's mother, being the uncle of the deceased, is the only person entitled to share the estate of the deceased under the operation of the rules of intestacy. 6. In the circumstances, I am prepared to make a Benjamin order as sought by the first Plaintiff. 7. As the first Plaintiff, subject to the terms of the Benjamin order, will be entitled to the whole of the deceased's intestate estate under the operation of the rules of intestacy, he is entitled to a grant of administration alone. He has established, relevantly, a beneficial interest in the estate. There is no need to have a second administrator appointed with him. 8. The Court: 1. Orders that the first Plaintiff, on obtaining the grant of letters of administration, is justified in distributing the intestate estate of the deceased upon the footing that he is entitled to the whole of the deceased's estate, but without prejudice to the rights of the deceased's father; or the deceased's other paternal family under ss 130 and 131 of the Succession Act 2006 (NSW), or those claiming through them, to trace his, her, or their share into the hands of the first Plaintiff if the identity of the deceased's father is ever established (and it be established that he survived the deceased), or that the deceased's paternal relatives were entitled on intestacy under ss 130 and 131 of the Succession Act. 2. Orders, subject to compliance with the Probate rules of Court, that Letters of Administration of the intestate estate of John Andrew Wardell (the "deceased") be granted to the first Plaintiff. 3. Orders that the matter be remitted to the Senior Deputy Registrar in Probate to complete the grant. 4. Orders that any requirement for an administration bond or sureties be dispensed with. 5. Orders that the amended Summons otherwise be dismissed. 6. Orders that the Plaintiffs' costs of the proceedings, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate of the deceased. ********** 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: 17 June 2022