Supreme Court New South Wales Medium Neutral Citation: Kupronow v NSW Trustee & Guardian [2018] NSWSC 1169 Hearing dates: 27 July 2018 Date of orders: 27 July 2018 Decision date: 27 July 2018 Jurisdiction: Equity - Applications List Before: Kunc J Decision: Benjamin Order made Catchwords: WILLS PROBATE AND ADMINISTRATION – Intestate succession – Beneficiary not seen since early 1950s in Communist Poland – Not appropriate to declare person deceased - Benjamin order Cases Cited: Re Benjamin; Neville v Benjamin [1902] 1 Ch 723 Category: Principal judgment Parties: Lucya Teresa Kupronow (Plaintiff) NSW Trustee & Guardian (Defendant) Representation: Counsel: J Lo Schiavo (Plaintiff) Solicitors: Carter Ferguson (Plaintiff) File Number(s): 2018/34112 Publication restriction: No EX TEMPORE Judgment (REVISED) 1. The plaintiff in these proceedings is Lucyna Teresa Kupronow née Kaczmarkiewicz. She seeks, in circumstances which I shall briefly explain, a Benjamin Order in relation to the administration of the intestate estate of her brother, Jan Kaczmarkiewicz, who died on 6 March 1994. 2. The original summons in these proceedings sought these orders: "1. A declaration that Mr Stanislaw Kaczmarkiewicz is a missing person. 2. That the portion of the estate of the late Yan Kaczmarkiewicz (sic) held by the NSW Guardian and Trustee on behalf of Mr Stanislaw Kaczmarkiewicz be paid to the Applicant. 2. No Order as to Costs." 1. The New South Wales Trustee and Guardian was a party. 2. Subsequently, an amended summons was filed that sought these orders and did not include a defendant: "1. A declaration that Mr Stanislaw Kaczmarkiewicz is a deceased person. 2. No Order as to Costs." 1. Mr Lo Schiavo of Counsel appeared for the plaintiff. During the course of the hearing, I expressed the view that, rather than making a declaration of death, it was more appropriate for a Benjamin Order to be sought (see Re Benjamin; Neville v Benjamin [1902] 1 Ch 723). During a short adjournment Mr Lo Schiavo spoke with the appropriate person at New South Wales Trustee and Guardian, who did not indicate any opposition to that course. 2. There is one other practical matter to which I need to refer. Apparently so long has now passed that the funds which are the subject of this application are in fact now held by the State Government of New South Wales. They will need to be recovered by the New South Wales Trustee and Guardian with the benefit of the Benjamin Order which I will shortly pronounce. 3. The plaintiff was one of four children. She had three brothers, all of whom, like her, were born in Poland: Jan, who died in Australia in 1994 intestate; Eugeniusz, who died in Poland in 2008; and Stanislaw, who was born on 6 May 1933. I intend no disrespect by referring to them by their given names. 4. The present application relates to Jan's estate. In the ordinary course of intestacy, his estate was divisible in equal parts between Eugeniusz, Stanislaw and Lucyna. It has been administered insofar as each of Eugeniusz and Lucyna received their one-third entitlements. 5. The difficulty which has necessitated the present application is that the whereabouts of Stanislaw were, and continue to be, unknown. There are no other possible claimants. 6. I am satisfied on the evidence of Lucyna that the last time her brother Stanislaw was heard of by anybody in their family was when he left the family home in Poland in the early 1950s, saying that he was "going away with friends" and was "not sure when he would be back". 7. I am satisfied that no member of the family has seen or heard from him since. Various enquiries have been made over the years with authorities in Poland, to no avail. Enquiries were also made over the years with the United States consulate in Australia against the chance that Stanislaw may have emigrated to the United States. They did not yield any information either. 8. If Stanislaw were alive today, he would be 85 years old. I am aware there is a common law presumption in relation to such matters. However, in my view, in a case like this where there is only evidence of absence and no evidence at all of possible accident or foul play, and it remains theoretically possible that a person could be alive at the age of 85, it is inappropriate to make a declaration that the person is dead. 9. In saying that, I am not purporting to set down an absolute rule because each case must be determined according to its circumstances. In the present case, it seems to me that it is sufficient to engage the, in one sense, less extreme remedy of a Benjamin Order, and that is what I propose to do. 10. The order of the Court is: 1. The New South Wales Trustee and Guardian is at liberty to distribute that portion of the estate of the late Jan Kaczmarkiewicz, which is currently held by the State of New South Wales and which would otherwise be payable to Stanislaw Kaczmarkiewicz, by paying it to Lucyna Kupronow. ********** 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: 31 July 2018