Estate of Ian Roderick Douglas; Cummins & Anor v Wu [2014] NSWSC 478

Supreme Court New South Wales

Medium Neutral Citation: Estate of Ian Roderick Douglas; Cummins & Anor v Wu [2014] NSWSC 478 Hearing dates: 5 December 2013; and subsequent directions and affidavits in chambers Decision date: 29 April 2014 Jurisdiction: Equity Division Before: White J Decision: Refer to para [17] of judgment. Catchwords: WILLS, PROBATE AND ADMINISTRATION - whether the executors are justified in distributing the assets of the deceased's estate to the defendant despite the uncertainty of whether another beneficiary is alive - whether a beneficiary under the will can be identified and located - whether reasonable attempts have been made to locate beneficiary - whether a Benjamin Order is appropriate - plaintiffs justified in distributing the estate to defendant Cases Cited: Re Benjamin [1902] 1 Ch 723 Category: Principal judgment Parties: Barry Miller and David James Cummins (as executors of the Estate of the late Ian Roderick Douglas) (1st and 2nd Plaintiffs) Darcelle Francis Maree Wu (Defendant) Representation: Counsel: M Gorrick (Plaintiff) K Telford, solicitor (Defendant) Solicitors: Wilkinson Throsby & Edwards (Plaintiff) RMB Lawyers (Defendant) File Number(s): 2013/237400

Judgment 1HIS HONOUR: Ian Roderick Douglas died at Goulburn on 2 February 2013 aged 72. He made a will on 27 May 2010 by which he appointed David James Cummins and Barry Miller as his executors. Probate of the will was granted to them on 24 May 2013. He left an estate whose estimated value for probate purposes is approximately $1,250,000. He was unmarried. The bulk of his estate was dealt with by the following clause: "12. MY executors shall hold the residue of my estate ON TRUST as follows: As to one half of the residue: for my daughter DARCEL WU of [xx xxxxx xxxxxx, yyyyyyyy]. As to the other half of the residue: for my other daughter whom I have yet to find and whose name and whereabouts are unknown to me at the time of my Will but who is believed to live in Victoria ('my Victorian daughter'). If it can be established that she died before me leaving children then those children then her children [sic] shall take the share which their mother would otherwise have taken. If my Victorian daughter cannot be found or is proved not to have survived me and to have died without children then the share she would have taken shall pass to my daughter DARCEL WU." 2The Victorian daughter referred to in clause 12 of the will has not been identified or found. The executors seek directions that they would be justified in distributing the whole of the estate to the deceased's daughter, Darcelle Wu without prejudice to the rights of the Victorian daughter, if it be ever established that she existed and survived the deceased, or to the rights of that daughter's children, if it is established that such a daughter existed but did not survive the deceased, to claim her or their share of the residuary estate from Ms Wu. 3The application first came before me on 5 December 2013. I directed that there be further advertisement in Victorian newspapers, including regional newspapers, for any person having knowledge of any daughter or grandchild of Mr Douglas. Those advertisements have been placed, but no response has been received. 4It emerged from evidence given by Ms Wu on 5 December 2013 that her maternal uncle, a Mr Kenneth Ross, might be able to provide further information concerning the existence of a Victorian daughter. I gave directions for the executors to contact Mr Ross to find out if he could provide any such information. 5Neither the executors nor the persons who were given pecuniary legacies by the will, nor Mr Douglas' daughter, Darcelle Wu, had any knowledge of the deceased's having another daughter. Ms Wu was born in 1964. It was not until she was 17 that she learned that her mother's husband was not her father, and that she had a father called Ian Douglas. It was not until about 1990 that she met her father. They met infrequently. Mr Douglas was a private man. In 2012 he told Ms Wu that he had been told that he had a daughter, and that she had a sister in Victoria. He said to Ms Wu: "When and if I find her will you come along with me to meet her? I don't have any more information at this time, but I am going to look into it. If I find out more I will let you know and we can book some tickets to go down to Victoria." He told Ms Wu that he did not know the name of his daughter or anything about her, but only that she might exist. He did not make any further disclosure about the information he had received. Mr Douglas did not tell Ms Wu who had told him that he had another daughter. She did not ask. 6Subsequently, Ms Wu's maternal uncle, Mr Kenneth Ross, provided an affidavit. He had known Mr Douglas when they both attended North Annandale Public School after the Second World War. His sister is Ms Wu's mother. Mr Douglas and Ms Wu's mother never lived together. No explicit mention was made of Mr Douglas being Ms Wu's father. Mr Ross recalls that Mr Douglas left Annandale in about 1964 at about the time his relationship with Mr Ross' sister ended. It was Mr Ross who, at Ms Wu's request, arranged for Ms Wu to meet her father in about 1990. Mr Ross deposed that in early 2012 Ms Wu told him that her father had told her that he had a half-sister who may be living in Victoria. She asked him if he knew anything about that. He did not at that time and told Ms Wu so. Some weeks later he visited a family friend, Kathleen Stuchbury, who had lived in Trafalgar Street, Annandale next door to Mr Ross' family home. During his meeting with Kathleen Stuchbury he told her what Ms Wu had told him about Mr Douglas' having another daughter. Kathleen Stuchbury told Mr Ross that she knew about that and that the mother of Mr Douglas' other daughter was called Lily. She said that Lily used to visit Norma down the road. Norma was Norma Mohan who also lived in Trafalgar Street, Annandale in the late 1950s and early 1960s. 7Mr Ross recalls a Lily who lived in Annandale in the late 1950s and early 1960s, but does not know her surname or her address and does not recall ever speaking to her other than in passing. No-one other than Kathleen Stuchbury has ever mentioned to Mr Ross anything about Mr Douglas and Lily having had a child together. Lily's whereabouts are unknown. 8Kathleen Stuchbury died in September 2012. Mr Ross has made enquiries of her youngest daughter who vaguely remembered a Lily in Annandale, but did not know anything about her having a child with Mr Douglas. Norma died two or three years ago. The whereabouts of her children are unknown. 9After being provided with Mr Ross' affidavit, I directed the executors to provide a copy of his affidavit to Ms Wu's mother (if they had not already done so) and if possible to obtain an affidavit from her as to her recollection of a woman called Lily, including whether she could recall a surname for Lily or provide any other assistance in tracing the woman who might have been the mother of another daughter of Mr Douglas. That affidavit has now been provided. She does not recall any person having the name Lily or any similar name living in Annandale or visiting Annandale, and can provide no further information to assist in tracing the woman who might have been the mother of another daughter of Mr Douglas. 10I am satisfied that all reasonable attempts have been made by the executors to attempt to locate the beneficiary as to half of the residuary estate described by Mr Douglas as his Victorian daughter. 11Ms Wu was joined as a defendant to the executors' summons. She appeared in the proceedings. She did not seek a declaration that she was beneficially entitled to the whole of the residuary estate. She does not oppose the directions sought by the executors. 12Having regard to Mr Ross' evidence, it does seem probable that Mr Douglas had another daughter who was probably born in the late 1950s or early 1960s. The daughter would probably only be about 50 years old, give or take a few years. If she did not survive Mr Douglas, there is a reasonable chance she might have had children who did survive Mr Douglas. 13The order sought by the executors is known as a "Benjamin order" after Re Benjamin [1902] 1 Ch 723. There, a beneficiary was presumed dead having not been heard of for seven years. The testator had died less than a year after the beneficiary was last heard of. The onus was on the administrator of the beneficiary's estate to show that he had survived the testator. That onus could not be discharged. Joyce J said that in those circumstances the trustees were at liberty to distribute, but so as not to prevent the representative of the beneficiary from later adducing evidence as to the time of his death should such evidence subsequently be forthcoming (or presumably so as not to prevent the beneficiary from claiming his share if he turned up alive) it was declared that the trustees of the will were at liberty to divide the share of the testator's estate given to that beneficiary on the footing that he was unmarried and did not survive the testator. 14The effect of such an order is to relieve the representative of the estate from liability if it should prove that the estate or part of it was distributed to the wrong person. If the right person appears then he or she would be entitled to claim against the beneficiaries who are wrongly paid, but could not sue the executor. 15A Benjamin order can be made on conditions, including the provision of security by the beneficiary or beneficiaries to whom the putative share of another beneficiary is to be distributed. 16In this case I do not think that security is appropriate. Mr Douglas provided in his will that if the Victorian daughter could not be found then her share should pass to his daughter, Darcelle. No time limit was fixed for determining whether the daughter could be found. I express no view on the question whether the Victorian daughter's half share of the residue might in any event have passed to Ms Wu because she has not yet been found. That is not in issue before me. But it does appear that the testator intended that Ms Wu should receive the whole of the residuary estate if the Victorian daughter could not be found. To require security to be given for the delivery up of a half share of the residue would effectively stifle Ms Wu's enjoyment of it. It may well be that if the Victorian daughter is found that Ms Wu would be under a personal liability to account for the half share. But whether that is so or not, it is appropriate now that the further advertisements have been placed and all reasonable inquiries have been made, that the executors be free to distribute the estate without personal risk. 17Accordingly, I make the following orders: 1. Order that the plaintiffs would be justified in distributing the residuary estate of the late Ian Roderick Douglas to the defendant. 2. Order 1 is made without prejudice to the rights of any daughter of the deceased other than the defendant, or any issue of any daughter of the deceased other than the defendant, or those claiming through them, to claim her or his share of the residuary estate of the deceased from the defendant, if it be ever established that she, he or they existed and survived the deceased, or otherwise as the case may be. 3. Order that the plaintiffs' costs of these proceedings as agreed or assessed on the indemnity basis be paid out of the deceased's estate. 4. Order that the defendant's costs of the proceedings as agreed or assessed on the ordinary basis be paid out of the deceased's estate. 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: 29 April 2014