Application by NSW Trustee and Guardian (Estate of the late Peter Czmil) [2013] NSWSC 1683

Supreme Court New South Wales

Medium Neutral Citation: Application by NSW Trustee and Guardian (Estate of the late Peter Czmil) [2013] NSWSC 1683 Hearing dates: 24 September 2013 Decision date: 14 November 2013 Jurisdiction: Equity Division Before: Black J Decision: Orders that the plaintiff be at liberty to distribute the intestate estate of the deceased on a specified basis. Orders made for the plaintiff's costs to be paid out of the deceased's estate. Catchwords: SUCCESSION - wills, probate and administration - where deceased died intestate - "Benjamin order" sought by trustee. Legislation Cited: - Uniform Civil Procedure Rules 2005 (NSW) r 54.3 - Wills, Probate and Administration Act (NSW) 1898 ss 61A-61F, 61B(1) Cases Cited: - Application by NSW Trustee and Guardian (Estate of the late Marco Sijakovic) [2012] NSWSC 1532 - Public Trustee v Kehagias [2009] NSWSC 972 - Re Benjamin [1902] 1 Ch 723 Category: Principal judgment Parties: NSW Trustee and Guardian (Plaintiff) Estate of the late Peter Czmil (additional information) Representation: Counsel: M. Gorrick (Plaintiff) Solicitors: NSW Trustee and Guardian (Plaintiff) File Number(s): 2013/30362

Judgment 1By Summons filed on 31 January 2013, the NSW Trustee and Guardian ("NSWTG") sought, initially, an order that an inquiry be held as to the persons entitled to succeed to the estate of the late Peter Czmil ("the deceased") as his next of kin on intestacy who were living at his death, whether any of them have since died and, if so, who are their legal personal representatives. Alternatively, NSWTG sought an order that it be at liberty to distribute the deceased's intestate estate on the basis that, at the time of his death, the deceased was a bachelor and not in a de facto relationship with any person; he was not survived by children or other issue; his parents had pre-deceased him and his only sibling was a sister, Maria Czmil, who died on 28 November 2002 leaving four children, such a distribution to be made: "without prejudice to the rights of any children of the deceased or those claiming through them or of any siblings of the deceased or those claiming through them to trace his or her or their share into the hands of the recipients if it were ever established that they survived the deceased or otherwise as the case may be." 2With the benefit of the evidence on which NSWTG relies, the submissions of Mr Gorrick, who appeared for the NSWTG and the outline of the relevant principles provided by Hallen J in Application by NSW Trustee and Guardian (Estate of the late Marco Sijakovic) [2012] NSWSC 1532, I was satisfied that I should make the orders sought by NSWTG at the conclusion of the hearing. I delivered a short ex tempore judgment indicating the reasons that I did so, but indicated that I would provide a more detailed judgment setting out the basis for my judgment. I set out the basis for my judgment in more detail below. 3Mr Gorrick, who appears for NSWTG, points out these proceedings are in the nature of an administration suit. Rule 54.3 of the Uniform Civil Procedure Rules 2005 (NSW) provides, inter alia, that proceedings may be brought for the determination of any question that would be determined in administration proceedings, including any question as to the composition of any class of persons having a beneficial interest in an estate. The orders sought by the trustee are in the nature of a "Benjamin order", of the kind referred to in Re Benjamin [1902] 1 Ch 723. The function of such an order was summarised by Hallen J in Sijakovic above at [23]-[25] and I gratefully adopt that description without repeating it. Broadly, such an order permits the Court, where there is uncertainty about a factual matter relevant to the distribution of a deceased's estate, to order that the executor or administrator is at liberty to distribute the estate on a particular factual basis. 4NSWTG is the administrator of the intestate estate of the deceased. Letters of Administration were granted to NSWTG on 15 May 2006 and the deceased's estate at that time had a value of $149,618.87 (Ex MB1 pp1-2). Succession to the deceased's intestate estate is to be determined by the law of New South Wales: Public Trustee v Kehagias [2009] NSWSC 972 at [11]. Section 61A-61F of the Wills, Probate and Administration Act (NSW) 1898 apply in this case since the deceased died intestate before the Succession Act commenced and set out the applicable scheme of distribution on intestacy. Broadly, s 61B(1) provided that, where a person died 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. Section 61B(6) provided that, if the deceased left no spouse, no issue and no parents, then the estate shall be, first, in statutory trust for the brothers and sisters of the whole blood of the intestate, namely siblings who share both parents with the deceased. Section 61C(3) in turn provides that, where the estate or part of it was directed to be held on statutory trust for any class of relatives other than issue of the deceased: "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". 5NSWTG relied, in support of the application, on a comprehensive affidavit of Ms Maria Boitano reporting the results of information held by and searches conducted by the NSWTG, together with a folder of documentary material. In particular, Ms Boitano's affidavit sets out the inquiries made by NSWTG in respect of the next of kin of the deceased. Notwithstanding the searches made by NSWTG in Australia and overseas, it has been unable to conclusively determine the next of kin of the deceased entitled to take his intestate estate. 6NSWTG's investigations indicate that the deceased was born in Poland on 31 July 1921 and died intestate in New South Wales on 21 December 2005 aged 84 (Ex MB1 p4). The deceased arrived in Australia in June 1949 as a political refugee, when he was aged about 28 years. The deceased's application for certificate of identity dated 27 June 1962 (Ex MB1 p6) identified his parents as Mickal Czmil and Donka Czmil (nee Dacko), and that is consistent with the genealogical investigation commissioned by the NSWTG to which I will refer below. NSWTG has been unable to obtain death certificates for the deceased's parents. However, the evidence of the birth dates of his parents suggest that they were each born in the 1890s and I accept NSWTG's submission that it can be presumed that they are deceased. 7NSWTG conducted a search of the NSW Registry of Births, Deaths and Marriages, which does not disclose that the deceased was married to any person, and the deceased disclosed in his residency application in 1962 that he had no wife and children (Ex MB1 p6). An affidavit of non-de facto was sworn in the probate proceedings on 23 April 2006 by Ms Luciano, who was Mr Czmil's carer from 30 July 2003 until his death on 21 December 2005. The NSW Registry of Births, Deaths and Marriages also does not record any children born to the deceased; although, as Hallen J noted in Sijakovic above at [28], to which Mr Gorrick draws attention, such a matter cannot be conclusively established. 8The NSWTG has been unable to obtain copies of the deceased's birth certificate, the death certificate of the deceased's parents or the birth certificates of persons who may be full-blooded siblings of the deceased, by reason of the difficulties arising from the destruction of archives and registers in that part of Poland where the deceased was born, which is now part of the Ukraine. NSWTG retained a genealogical researcher to make further inquiries in respect of the position of the deceased and his report dated 15 September 2011, and amended in 2013, is in evidence. NSWTG accepts that the information obtained by the genealogical researchers was, to a large degree, anecdotal. 9The genealogical research that NSWTG commissioned and declarations of kinship provided to it suggest that the deceased had a full-blood sister, Maria (also known as Marie) Czmil (or Chmiel or Chmil) (to whom I will refer, without disrespect, as "Maria"), born of the union between Mickal Czmil and Donka Czmil. The different surnames by which Maria was known reflects issues arising in transliteration to Latin characters. The information recorded in a certificate of marriage for Marie records her birthplace as being the town in Poland in which the genealogical investigations indicate that the deceased was likely to have been born, and The information as to her parents recorded in her death certificate is consistent with the identification of the deceased's parents. Ms Boitano recognises in her affidavit that that sibling relationship has not been conclusively established where NSWTG has been unable to obtain birth certificates for the deceased and Marie. The genealogical report suggests that the deceased may also have had siblings of the half blood; however siblings of the full-blood would take in priority to such other siblings under the relevant provisions of the Probate and Administration Act to which I referred above. 10Ms Boitano's affidavit indicates that Maria was survived by three daughters and a son, namely Josephine Szczesniak, Krystyna Maria Kisting, Herbert John Ciesla and Elizabeth Georgina Ciesla-Arquilla (Boitano [39]-[40]). Each of those persons has provided declarations of kinship to the NSWTG confirming their relationship with Marie, and that Marie's parents were the persons identified as the parents of the deceased, and also confirming that Marie and the deceased were the children of the deceased's father. The fact that Maria is the deceased's sister and that Josephine Szczesniak is his niece is also supported by a personal summary and "authority to manage" provided to the office of the Protective Commissioner in July 1997, which disclosed Maria as a sister to the deceased and also referred to Josephine. Josephine had also written to the Office of the Protective Commissioner in July 1999 making inquiries as to the deceased's welfare in behalf of Marie. 11NSWTG has formed the view, which seems to me likely to be correct, that the deceased was not survived by a de jure or de facto spouse or by any issue or by his parents at the time of his death; that he had only one sibling, Marie, who predeceased him, and was survived by Marie's issue, namely Josephine, Krystyna, Herbert and Elizabeth. It seems to me that the investigations made by the NSWTG establish that, although there may be residual uncertainties including as to the question whether the deceased had any children, the most likely position on the evidence presently available and likely to be available, is that Maria, and on her death her four children, are entitled to the intestate estate of the deceased. The proviso to the order sought by the NSWTG protects against the position if ultimately it is established that the deceased had children whose identity has not been disclosed by its investigations. 12Accordingly, I made orders when the application was heard before me that: 1. The Plaintiff be at liberty to distribute the intestate estate of Peter Czmil upon the basis that the deceased's estate will be shared equally between the issue of the deceased's sister, Maria Czmil (also known as Marie Czmil) namely Josephine Szczesniak, Krystyna Maria Kisting, Herbert John Ciesla and Elizabeth Georgina Ciesla-Arquilla but, in each case, without prejudice to the rights of any children of the deceased or full blooded siblings of the deceased or those claiming through them to trace his, her or their, share into the hands of the recipients if it were ever established that they survived the deceased or otherwise as the case may be. 2. The Plaintiff's costs of the proceedings, calculated on an indemnity basis, be paid out of the deceased's estate. I also now order that the exhibits be returned.