NSW Trustee & Guardian; In the Estate of Francis [2014] NSWSC 123

Supreme Court New South Wales

Medium Neutral Citation: NSW Trustee & Guardian; In the Estate of Francis [2014] NSWSC 123 Hearing dates: 14 February 2014 Decision date: 14 February 2014 Jurisdiction: Equity Division Before: Kunc J Decision: Application to distribute estate granted Catchwords: WILLS PROBATE AND ADMINISTRATION - Intestate succession - Administrator unable to ascertain identity of deceased's parent - Administrator seeks order giving liberty to distribute estate on particular basis - Benjamin order Legislation Cited: Probate and Administration Act (1898) NSW, s 61B Cases Cited: Re Benjamin; Neville v Benjamin [1902] 1 Ch 723 NSW Trustee and Guardian (Estate of Peter Urso) [2013] NSWSC 903 Category: Principal judgment Parties: NSW Trustee and Guardian (Plaintiff) Representation: Counsel: G.J. Smith (Plaintiff) Solicitors: R.L.J. Pollard, NSW Trustee and Guardian (Plaintiff) File Number(s): 2014/16110 Publication restriction: No

EX TEMPORE Judgment 1HIS HONOUR: By an Amended Summons which I granted leave to the plaintiff to file in court today, the plaintiff ("NSWTG") seeks an order that: 1. In the absence of any evidence: (a) That the unknown father of Mervyn Joseph Francis ("the deceased") late of Five Dock, Pensioner who died on 29 October 2009, survived the deceased; and (b) That the unknown father of the deceased had any issue (other than the deceased and possibly Kevin James Francis) who survived the deceased or who predeceased leaving any issue of their own who survived the deceased; the plaintiff the NSW Trustee & Guardian be at liberty to distribute the estate of the deceased to Kevin James Francis upon the footing that the father of the deceased did not survive the deceased and that the father of the deceased did not have issue (excepting possibly Kevin James Francis) who survived the deceased or who predeceased leaving any issue of their own who survived the deceased. 2That form of order is known as a "Benjamin Order" after the decision in Re Benjamin; Neville v Benjamin [1902] 1 Ch 723. The principles surrounding the making of such an order are discussed by Hallen J in NSW Trustee and Guardian (Estate of Peter Urso) [2013] NSWSC 903. It is unnecessary for me to discuss those principles, which are well established, and I gratefully adopt his Honour's treatment of them. 3These proceedings concern the estate of the late Mervyn Joseph Francis (the "deceased") who died on 29 October 2009 at the age of 74. The deceased died intestate. Letters of administration of the estate of the deceased were granted to the Public Trustee by the Court on 25 March 2010. By operation of subsequent legislation the Office of the Public Trustee was abolished and NSWTG took over the existing functions and responsibilities of the Public Trustee. 4As the deceased died intestate on 29 October 2009 entitlement to the distribution from his estate is governed by Division 2A of the Probate and Administration Act (1898) NSW, in particular s 61B of that Act. 5The present proceedings arise by reference to s 61B(5) of the Act which provided: "(5) If the intestate leaves no spouse and no issue but one or both of the intestate's parents, the estate shall be held: (a) where both parents survive the intestate, in trust for those parents in equal shares, or (b) where only one parent survives the intestate, in trust for that parent absolutely." 6If that subsection is inapplicable, then s 61B(6) goes on to provide that if the intestate leaves no spouse, no issue and no parents then the estate shall be held for any brothers and sisters of the whole blood or, if not, of the half blood of the intestate living at the date of the intestate's death. 7The deceased's mother was Mary Francis, nee Mary Ellen Robinson, also known as Mary Helen Francis, who predeceased the deceased on 9 December 1984. 8The question of the deceased's father is more problematic. There is no father recorded on the deceased's birth certificate. However the extensive enquiries undertaken by NSWTG and placed in evidence before me through the affidavit of Sandra Malouf, the solicitor with the carriage of the matter, demonstrate that there is some evidence, and it is possible that, the father of the deceased was Herbert James Francis, also known as Herbert James Snook, Herbert James Snook Francis or Albert Francis. There is otherwise no evidence or information which the NSWTG has been able to locate to suggest, or to conclude, that any other person was the father of the deceased. 9Herbert James Francis married the deceased's mother on 16 June 1936 (when the deceased was 14 months old) using the pseudonym Albert Francis. He was, on 30 July 1937, convicted of the offence of bigamy and sentenced to 6 months hard labour to date from 22 July 1937. Herbert James Francis, if in fact he was the deceased's father, predeceased the deceased on 26 July 1980. 10The evidence discloses that the deceased had a brother or half brother, Kevin James Francis, who was born on 2 January 1938. With no disrespect I shall refer to him as "Kevin". The deceased's mother is recorded as the mother of Kevin, but, as with the deceased's birth certificate, no father is recorded in Kevin's birth certificate. While there appears to be no doubt that the deceased's mother was also Kevin's mother, there remains some doubt as to who Kevin's father was. At the very least, there is no doubt that Kevin is the deceased's brother of the half blood through their mother. 11There is in evidence before me a declaration of kinship by Kevin in which he confirms that, so far as he (Kevin) is concerned, the deceased was his brother, the deceased's mother was their mother and that Herbert James Francis was his and the deceased's father. 12I am satisfied that on the basis of the extensive searches undertaken by NSWTG either that Herbert James Francis was the deceased's father or, if he was not, there is no other person who can be identified as the father of the deceased. Insofar as Herbert James Francis is concerned, it is clear that he predeceased the deceased. Furthermore, with the possible exception of Kevin, I am satisfied on the evidence that if Herbert James Francis was the deceased's father, either he did not leave any issue who survived the deceased or, if he did, such person or persons are unable to be located. 13In those circumstances, I am satisfied that NSWTG is entitled to distribute the deceased's estate not in accordance with s 61B(5) but, rather, in accordance with s 61B(6)(a) or (b). On the facts as I have found them, the application of either of those subsections will have the same result, namely that the estate is to be distributed to Kevin. 14The Court makes orders in accordance with paragraphs 1 and 2 of the Amended Summons. 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: 25 February 2014