Supreme Court New South Wales Medium Neutral Citation: Application by NSW Trustee and Guardian (Estate of the late Frederick John Vermaak) [2016] NSWSC 1436 Hearing dates: 7 October 2016 Date of orders: 07 October 2016 Decision date: 07 October 2016 Jurisdiction: Equity Before: Slattery J Decision: Adjourn the proceedings for further hearing on 1 November 2016 or such other date as may be arranged. Catchwords: SUCCESSION – intestacy – male deceased has 3 children – deceased divorced from the children's mother – not known if deceased married again or had other children – whether in the circumstances searches should be undertaken for further children before distribution of the estate to the 3 children pursuant to Succession Act, s 127(1) – whether a Benjamin order should be made. Legislation Cited: Succession Act 2006 (NSW), s 127 Trustee Act 1925 (NSW), s 63 Cases Cited: Application by NSW Trustee & Guardian (Estate of the late Marko Sijakovic) [2012] NSWSC 1532 Application by NSW Trustee & Guardian (Estate of Peter Urso) [2013] NSWSC 903 Re Benjamin; Neville v Benjamin [1902] 1 Ch 723 Category: Procedural and other rulings Parties: Plaintiff: NSW Trustee and Guardian (The Estate of the late Frederick John Vermaak) Representation: Counsel Plaintiff: A. Hill Solicitor Plaintiffs: Ruth Pollard, NSW Trustee and Guardian Defendants: n/a File Number(s): 2016/233709 Publication restriction: No Judgment 1. Frederick John Vermaak was born in South Africa on 23 October 1939. He moved to Australia in 1978 and became an Australian citizen on 29 April 1982. He died in New South Wales on 27 February 2012. The Court granted letters of administration of his estate to the plaintiff, the NSW Trustee and Guardian, on 13 March 2015. 2. The deceased married Colleen Mary Voges in Port Elizabeth, South Africa on 2 November 1963. They had three children, Aloys (born January 1967), Salvio (born September 1968) and Zebbion (born June 1979). Aloys and Salvio were born in South Africa. Zebbion was born in Victoria, Australia. The deceased and Colleen Voges were divorced on 21 October 1993. She appears to have returned to South Africa after Zebbion's birth as they were divorced in that country. 3. Searches of the Registries of Births, Deaths and Marriages in New South Wales and Victoria disclose no records in Australia of the deceased ever having married or having fathered or adopted any other children. Similar searches have not been undertaken in South Africa. 4. The deceased died intestate. His estate is valued at $773,026.00. Following his death, searches were performed to ascertain who would was entitled to his estate on the deceased's intestacy. As a result of these searches Aloys, Salvio and Zebbion were located. But the question now arises whether in the circumstances that have occurred whether further next–of-kin searches should be undertaken before the deceased's estate is distributed to Aloys, Salvio and Zebbion. Upon an intestacy where there is no spouse the deceased's children are equally entitled to the whole of the intestate estate under Succession Act 2006 (NSW), s 127(1). 5. Aloys says in affidavit that the deceased lived with him in the last 13 months of the deceased's life and Aloys saw no evidence in that period of the deceased having had after his divorce any personal relationships or having had other children. 6. The question is how practicable and useful further searches are likely to be. Christina Nicola, a solicitor employed by the plaintiff, the NSW Trustee and Guardian, deposes by affidavit sworn on 1 August 2016 that to trace a marriage in South Africa it is necessary first to apply for an unabridged birth certificate. This in turn is said to require an applicant to provide the date of the marriage, place of marriage, and both marriage partners' particulars. Such details are presently unknown. They may not even exist if the deceased did not marry again. The plaintiff contends that attaining such a certificate is now impracticable. 7. The plaintiff filed a Summons dated 29 July 2016 on 3 August 2016. The Summons seeks the following: 1. A determination of the Court as to whether the plaintiff should continue next-of-kin searches of the deceased. 2. If the answer to i) is no, the plaintiff then seeks an order that the plaintiff should be allowed to distribute the estate of the deceased to the deceased's children Aloys Bartholomew Vermaak, Salvio Vermaak and Zebbion Vermaak in equal shares pursuant to s 127 of the Succession Act 2006 (NSW). 3. In the alternative, the plaintiff seeks the opinion, advice and direction of the Court pursuant to Trustee Act 1925 (NSW), s 63 in respect of the aforementioned facts, which are contained in the affidavit of Ms Nicola. 1. The plaintiff in substance seeks a "Benjamin order", a form of order derived from the decision of Joyce J in Re Benjamin; Neville v Benjamin [1902] 1 Ch 723. In Application by NSW Trustee & Guardian (Estate of the late Marko Sijakovic) [2012] NSWSC 1532, Hallen J collected several modern statements and observations about Benjamin orders, which I gratefully adopt: "[23] In Williams, Mortimer & Sunnucks, Executors, Administrators and Probate, 17th ed, (1993), at 938, the learned authors state: It may happen that distribution is 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, 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 — Re Benjamin[1902] 1 Ch 723, that is, an order permitting them to distribute the estate on the footing that certain events have or have not happened. The effect of such an order is to relieve 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 — Re Diplock[1951] AC 251. [25] In Lempens v Reid [2009] SASC 179, Gray J, at [32], said: The effect of a Re Benjamin order is to enable the executor to distribute the estate to those members of the class which have been ascertained at the time of distribution, whilst ensuring protection of the executor if a person entitled to a portion of the estate subsequently appears. If such a person does appear, he or she is not entitled to make a claim against the executor for that portion but may claim against beneficiaries who have been paid incorrectly. If a Re Benjamin type order were considered appropriate in the circumstances of these proceedings, it may be necessary for the Court to order that further enquiries be undertaken, to ascertain whether members of the class can be located, prior to any distribution of the gift contained in the subject clause." 1. I also gratefully adopt Hallen J's further explanation of the operation of Benjamin orders in Application by NSW Trustee & Guardian (Estate of Peter Urso) [2013] NSWSC 903: "[39] Thus, in a case where a trustee is faced with a practical difficulty in establishing the existence of possible beneficiaries or other claimants, the Court will give a direction to the trustee enabling it to distribute the trust property on an assumption of fact that there is no such beneficiary or claimant. In the case where a beneficiary has disappeared in circumstances where the absence leads to an inference of death, an order may be made that the trust estate be distributed on the basis that the beneficiary is dead: Re Reynolds Trusts (No 2)[1942] QWN 40; Nolan As Administratrix of the Estate Of Barbara Nolan, deceased v Nolan [2011] WASC 224 at [33]. [40] As Nourse J explained in Re Green's Will Trusts[1985] 3 All ER 445, at 446: The true view is that a Re Benjamin order does not vary or destroy beneficial interests. It merely enables trust property to be distributed in accordance with the practical probabilities … At 462, his Lordship added: I do not think that the question whether such an order should be made depends on whether or not there will be administrative inconveniences caused by the trustees retaining the fund. I think it depends on whether in all the circumstances the trustees ought to be allowed to distribute and the beneficiaries to enjoy their apparent interests now rather than later." 1. The need for a Benjamin order is weaker in this case than in many cases where there is some evidence to infer that someone who may qualify to benefit from the estate was once living. Here there is no evidence presently before the Court that the deceased was ever married either in South Africa or in Australia to anyone other than Colleen Vermaak (nee Voges), the mother of Aloys, Salvio and Zebbion, or that the deceased's sons may have other siblings. 2. But Aloys Vermaak's evidence only really speaks directly to the 13 months before the deceased died. There is presently before the Court no evidence as to whether the deceased is known only to have lived in the State of Victoria and the State of New South Wales. If he lived in other States then the searches of Registers of Births, Deaths and Marriages already made may need to be made a little wider. 3. Aloys Vermaak's affidavit also does not speak to the possibility that the deceased may have had a prior marital or de facto relationship prior to the last 13 months of his life. All the affidavit says is that "the deceased did not leave any person who at the time of his death was a partner with him in a de facto relationship". That evidence alone does not paint a very complete picture of the deceased's relationships or lack of them after his divorce from Colleen. 4. Finally, the evidence as to why a search of Births, Deaths and Marriages in South Africa failed is somewhat obscure. It is difficult to understand the responses by the relevant Births, Deaths and Marriages authority in the Republic of South Africa ("RSA") in this case. The request the plaintiff's officers made to the RSA was to whether the Department of Home Affairs could "(1) conduct a search of the marriage register to determine whether Frederick Johannes Vermaak married in Eastern Cape, South Africa and find out the names of any names of spouses and dates of marriage". The second question was to "(2) conduct a search of the Birth Register to determine whether Frederick Johannes Vermaak had children in Eastern Cape, South Africa and to find out the names and dates of birth of any children". 5. But a troubling aspect of the final response to these inquiries from the RSA Registry was that the RSA Registry officers appeared to comprehend the request made to them as one to look for a particular marriage or birth. The answer to the search was as follows: "Kindly be advised that we have taken note of the contents of your email, however it is not possible for the department to trace a marriage with only a person's name. In order to trance a marriage you will have to apply for an unabridged birth certificate, which requires you to provide the date of marriage, place of marriage, both partners' particulars such as their J.DF. numbers and date of births as well as their full names and surnames. Should you only wish to check a person's marital status you will be required to visit your nearest Home Affair's office to do so, you will also need their full 13 digit ID number and full name and surname/s. Please note that with regard to determine if a person had children or did not have children, you will be required to provide the children's full names and surnames, date of birth/s or their ID numbers as well as both parents particulars in case the other parent does not appear on the children's birth register. Please note that there is no other way to determine weather (sic) someone had/has children, other then (sic) providing the above mentioned information." 1. But the request in this case is actually the same as it was in respect of the New South Wales and Victorian Registries: that is, to ascertain whether there was no marriage in which the deceased is said to have participated and whether the deceased was not the father of any child. The search is not looking for a particular marriage on birth and is really expecting to find a negative result. 2. Although this is not a case where there is strong indication that there might be another sibling who would share upon the deceased's estate on an indemnity, the Court is not satisfied on the evidence so far that sufficient searches have been done to provide a reasonable basis to infer that there is probably no such sibling. 3. There is continuing uncertainty: about where the deceased lived for 30 years; about whether he had any de facto or other personal domestic relationships in those 30 years; and about whether he was married or had other children in RSA. 4. It is often possible for the Court to give advice of a conditional kind to an executor which enables the executor to distribute the estate after certain steps are taken. But in this case there are a sufficient number of uncertainties that in the Court's judgment the better course is to adjourn the proceedings to Tuesday, 1 November 2016 to allow the various matters the subject of this judgment to be clarified, at which time if they are appropriately clarified the Court may well make a Benjamin order in respect of the deceased's estate. 5. The Court's orders therefore are: 1. Adjourn the proceedings to 1 November 2016 at 10am before me for further hearing. 2. Note if that date is not suitable, grant leave to the plaintiff leave to arrange another date by contacting my Associate. ********** 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: 07 October 2016