Supreme Court New South Wales Medium Neutral Citation: Application of NSW Trustee & Guardian [2014] NSWSC 1857 Hearing dates: 14 November, 11 December 2014 Decision date: 22 December 2014 Jurisdiction: Equity Division Before: Brereton J Decision: Benjamin order made Catchwords: EQUITY - trusts and trustees - applications to the court for advice and authority - Benjamin order Legislation Cited: (NSW) NSW Trustee and Guardian Act 2009, Schedule 1, par 10(1), par 11 (NSW) Public Trustee Act 1913, s 7 (NSW) Succession Act 2006 (NSW) Wills, Probate & Administration Act 1898, s 61A, 61B, 61C, 61D, 61E, 61F, 92 Cases Cited: In re Benjamin. Neville v Benjamin [1902] 1 Ch 723 Gonzales v Claridades [2003] NSWSC 508; (2003) 58 NSWLR 188 Re Green's Will Trusts [1985] 3 All ER 455 Hansell v Spink [1943] Ch 396 Lempens v Reid [2009] SASC 179 Application by NSW Trustee and Guardian (Estate of the late Marco Sijakovic) [2012] NSWSC 1532 Public Trustee v Kehagias [2009] NSWSC 972 Wilcox v Poole [1974] 2 NSWLR 693 Texts Cited: D H Parry & J B Clark, The Law of Succession, (10th ed 1996, Sweet & Maxwell) E R Daniell, Chancery Practice, (8th ed 1914, Stevens) Category: Principal judgment Parties: NSW Trustee and Guardian (plaintiff) Representation: Counsel: R Kako (plaintiff) Solicitors: Ruth Pollard (plaintiff) File Number(s): 2014/287679 Judgment 1HIS HONOUR: The late Betty Kathleen Foster died at Cessnock, intestate, on 28 August 2008 aged 83 years. Letters of Administration of her estate were granted on 12 January 2009 to the Public Trustee. The office of the Public Trustee, which was established as a corporation sole by the now repealed (NSW) Public Trustee Act 1913, s 7, has been abolished and the corporation sole dissolved, and the plaintiff NSW Trustee & Guardian is taken, for all purposes, to be a continuation of, and the same legal entity as, the Public Trustee [(NSW) Trustee and Guardian Act 2009, Schedule 1, paras 10(1), 11]. The net estate is $171,991.49, before provision for the costs of these proceedings. A notice of intended distribution of the estate, pursuant to (NSW) Wills, Probate & Administration Act 1898, s 92, as it applied at the time, was published in the Sydney Morning Herald on 27 January 2009. The plaintiff has not been able to establish that there are any beneficiaries entitled to the estate, but has not been able completely to exclude the possibility that there is a beneficiary. In those circumstances, the plaintiff proposes to distribute the estate to the Crown as bona vacantia, subject to the court making a "Benjamin order", which it seeks by summons filed on 1 October 2014. 2Succession to the deceased's intestate estate is governed by the law of NSW as at the date of death [Public Trustee v Kehagias [2009] NSWSC 972, [11]]. As the deceased died intestate before the commencement of the (NSW) Succession Act 2006, Wills, Probate and Administration Act , ss 61A-61F apply. Section 61B(1) provided that the real and personal estate of a person who died wholly intestate 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. Subsections 61B(2)-(6) set out the successive classes of next of kin, and subs 61B(7) provides that in default of any person taking an interest under ss (2)-(6), the estate shall belong to the Crown as bona vacantia, and in place of any right to escheat. 3The plaintiff is of the view that the deceased left no spouse or de facto spouse, no issue, no parents, and no brothers or sisters of the whole or half blood, but is concerned that it cannot conclusively establish that she was not survived by her maternal grandfather, or (perhaps more probably) children of her maternal grandfather who would be uncles or aunts of the half-blood of the deceased. Thus the plaintiff wishes to proceed to complete the administration of the deceased's estate upon the basis that (a) that the maternal grandfather of the deceased did not survive the deceased; (b) that the maternal grandfather of the deceased did not leave any issue who survived the deceased who can be regarded as uncles or aunts of the half-blood of the deceased; and (c) that the deceased was not survived by any next of kin and her estate therefore belongs to the Crown as bona vacantia, without prejudice to the rights of any person to trace his, her or their share into the hands of the recipient if it were established that they had survived the deceased or otherwise as the case may be. Benjamin order 4A "Benjamin order" [In re Benjamin. Neville v Benjamin [1902] 1 Ch 723] 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)]. 5A 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]. In Wilcox v Poole [1974] 2 NSWLR 693, Mahoney J (as he then was) referred (at 697) to the following passage from E R Daniell, Chancery Practice, (8th ed 1914, Stevens) at 1539-40: There are some cases in which, although the interest of a party in the fund is not absolute, but subject to a contingency, it has been ordered to be paid out at once, the contingency being remote; and formerly the parties receiving the money entered into a recognizance or undertaking to refund it, in the event of the happening of the contingency; but it is no longer the practice, on making orders presuming death, to require security to refund. This has been done when the right of the parties for subject to the contingency of a female who is past the age of child-bearing, having children, or where a person has been presumed to be dead. 6His Honour described the principle as "a beneficial one which may enable parties to have the early enjoyment of property to which they will, as a matter of practical certainty, ultimately become entitled". 7Accordingly, such an order may be made where there is a measure of uncertainty the proposed basis of distribution is justified by the proved facts as "a matter of practical certainty", or the possibility that it might ultimately be falsified is "a remote contingency". 8In order to establish the factual basis for such an order, the plaintiff undertook various enquiries and conducted various searches, the results of which are contained in or exhibited to the affidavit of Michael Walker sworn 26 September 2014, on which the findings recorded below are based. Spouse or de facto spouse 9The deceased was born in Newcastle on 29 November 1924. She married Albert Frederick Foster on 14 January 1949. Albert died on 4 January 2008 at Cessnock, aged 81. A search of the NSW Registry of Births, Deaths and Marriages, does not disclose that the deceased was married at the date of her death. An affidavit negativing de facto spouse was sworn in the probate proceedings on 12 December 2008 by Graham Crawhall, described as a nephew of the deceased. Accordingly, the deceased was not survived by a spouse or a de facto spouse. Children or issue 10There is no record in the NSW Registry of Births, Deaths and Marriages of any child born to the deceased between 1936 (when she was 12) and 1979 (when she would have been 55). Neither her death certificate, nor that of her deceased husband, refers to any children. Nor is there any other suggestion that she had, or was survived by, children. Accordingly, the deceased was not survived by any child or issue. Parents, and brothers or sisters 11The deceased's parents were William John Flynn and Vera Eileen Flynn nee Matthews. William died on 13 March 1972, and Vera died on 3 August 1993; accordingly, the deceased was not survived by any parent. 12The deceased is the only child of William and Vera recorded in the NSW Registry of Births, Deaths and Marriages, or referred to in any other documentation on which it might be expected that other children would be noted. 13When the matter came before the Court for hearing on 14 November 2014, it appeared that the informant on the deceased's death certificate was one Mr Graham Crawhall, who was described as a nephew of the deceased, and who had also sworn an affidavit negativing de facto relationship in the probate application, again describing himself as a nephew of the deceased. As his description as a nephew implied the possibility that the deceased had a brother or sister (although it might also have been founded on a relationship with the deceased's late husband), and as the evidence did not otherwise explain Mr Crawshaw's status, nor reveal that any inquiry had been made of him as to what knowledge he might have of the deceased's relations and kin, I directed that the plaintiff make inquiries of and concerning him, to ascertain his true relationship to the deceased and whether he is a child of a sibling of the deceased and generally in respect of the deceased's family history. 14Subsequently, an affidavit of Mr Crawshaw sworn on 4 December 2014 was filed, in which he deposes that his mother was the sister of the deceased's husband; that he has no blood relationship with the deceased and makes no claim to her estate under the laws of intestacy; and that he has provided to the plaintiff all information in his possession regarding her family and any possible surviving relations who might take on intestacy. 15It follows that the deceased was not survived by any brother or sister of the whole or half blood. Grandparents 16William's parents (the paternal grandparents of the deceased) were William Cumberland Flynn and Kate Flynn (nee Moffat or Moffitt). They were married on 23 September 1896. William Cumberland Flynn died on 2 July 1948. Kathleen Flynn (who I accept is the same person as Kate) died on 1 May 1948. Accordingly, the deceased was not survived by any paternal grandparent. 17Vera's parents (the deceased's maternal grandparents) were William (Joseph) Matthews and Ada Matthews (nee Patmore). 18William Matthews was born 2 April 1874, and married Ada Josephine (nee Patmore) on 9 March 1895. 19There is no direct evidence of William's death: searches in New South Wales, the Australian Capital Territory, Queensland, the Northern Territory, South Australia, Tasmania, Victoria and Western Australia for a record of it have been negative. However, that he did not survive the deceased should be inferred from the following. First, Ada filed for divorce on the grounds of wilful desertion for 3 years and upwards on 28 September 1909. On 8 November 1909, she deposed, in an affidavit in support of an application for substituted service, that she had not seen her husband since 26 September 1906 when she summoned him to the Police Court at Newcastle and an order was made against him for payment of £1 per week for her support; he disappeared immediately after the making of that order; on 21 October 1906 a warrant was issued against him for non-compliance with the order, but the Police could not find him; and his parents apparently did not know of his whereabouts. A decree of divorce became absolute on 26 October 1910. Secondly, no record of any other marriage for William up to 1994 has been located in any Australian State or Territory. Thirdly, the death certificate for Williams's parents do not mention William by name; however, his father's death certificate (1927) mentions 2 deceased male children, and his mother's death certificate (1935) mentions 3 deceased male children. Fourthly, an application by William and Ada's eldest son Stanley Rupert Matthews (a brother of Vera) to enlist in the Australian Imperial Forces, dated 11 January 1916, was lacked paternal consent, but stated that the father's whereabouts were "unknown 9yrs 6months". An application to enlist by their second son Lancelot James Matthews dated 3 June 1918 stated "Father's whereabouts unknown". Fifthly, there is an application to enlist signed by "William Joseph Matthews", dated 27 September 1918. The maternal consent is signed by Ada Matthews, and the postal address given is the same as on the two aforementioned applications. While there is no evidence that William and Ada had any child by the name William Joseph Matthews, the age of the applicant corresponds with that of their third child Clarence William Matthews, and it seems that Clarence also used the name William Joseph. This application states "Father deceased". Sixthly, the marriage certificate of William Flynn and Vera Matthews on 14 May 1924 refers to the bride's father as "William Matthews, deceased". Finally, given that he was born in 1874, his survival is inconceivable. It may safely be concluded that the deceased was not survived by her maternal grandfather. 20Ada was born on 25 January 1872. She died on 27 January 1960. 21It follows that the deceased was not survived by any grandparent. Aunts and uncles 22There is evidence that the deceased's father William John Flynn had nine siblings, all of whom predeceased the deceased: Edith May (died 22 December 1963), who may have been of the half blood, being born to Kate and an unnamed father before she was married to William Cumberland Flynn; and Archie (died 23 August 1973), George Herbert (died 8 July 1919), Ada Doris (died 24 May 1985), James Author (died 31 May 1905), D'Arcy Michael Elmo (died 25 November 1963), Amy Agnes (died 13 September 1999), Kenneth Aubrey (died 2 August 1989), Eileen Maud (died 10 January 1979) and Cecil Claud (died 30 August 1918), all of the full blood. 23There is evidence that the deceased's mother Vera Eileen Flynn had four siblings, all of whom predeceased the deceased: Rupert Stanley (died 25 April 1973), Lancelot James (died 28 July 1951), Clarence William (died 5 October 1939) and Lillian May (died 26 November 1903). 24Accordingly, the deceased was not survived by any uncles or aunts of the full blood. 25The possibility that Vera had siblings of the half-blood, being children of William Matthews born other than to Ada, cannot be excluded, although none is known. An s 50 children search for any further children of William is not possible or practicable, as the absence of a death certificate means that it is difficult to trace his movements and whereabouts after his disappearance in 1906, and whether there were any children born to him, and his name is a not uncommon one. However, given that he was born in 1874, apparently disappeared in or about 1906, is not recorded as having remarried anywhere in Australia, and is recorded as deceased in documents dated 1918 and 1924, the possibility that such a claimant will now emerge seems a very remote one. 26Because the only contingency to which the distribution is subject appears to be a very remote one, I am satisfied that it is appropriate to make a Benjamin order. 27The Court orders that: (1)The Plaintiff would be justified in distributing the estate of the late Betty Kathleen Foster ("the deceased") upon the basis that: (a)the maternal grandfather of the deceased did not survive the deceased; (b)the maternal grandfather of the deceased did not leave any issue who survived the deceased that can be regarded as uncles or aunts of the half-blood of the deceased; (c)the deceased was not survived by any next of kin and her estate therefore belongs to the Crown as bona vacantia, without prejudice to the rights of any person to trace his, her or their share into the hands of the recipient if it be established that they survived the deceased or otherwise as the case may be. (2)The Plaintiff's costs of the proceedings be paid out of the estate of the deceased on the indemnity basis. (3)The exhibits may be returned. ********** 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: 22 December 2014