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Application by NSW Trustee & Guardian (Estate of Edward Charles Turner) [2020] NSWSC 944 - Hallen J


This case concerned an application for a Benjamin order by the NSW Trustee and Guardian (the plaintiff) acting as Administrator for the estate of Edward Charles Turner, who died intestate (without a will) on 22 September 2012. The deceased left an estate worth approximately $160,502. The question for determination was how the deceased’s estate should be distributed because it could not be determined with certainty, who survived the deceased and would be entitled to a share of his estate, pursuant to the laws of intestacy.

The deceased was the only son of his parents, who both predeceased him. There was no evidence that the deceased was ever married, in a de facto relationship or that he had any issue (descendants). The plaintiff was able to identify three of the deceased’s grandparents, all of which had predeceased him, but was unable to identify the deceased’s paternal grandfather. The plaintiff sought the direction of the court in relation to whether additional searches ought to be conducted to ascertain the identity of the deceased’s paternal grandfather.

The deceased’s paternal grandmother had a number of children with a man who was not confirmed to be the deceased’s paternal grandfather. Each of these children were the deceased’s half-uncles or aunts, however all predeceased the deceased. Additionally, all of the deceased’s maternal uncles and aunts predeceased him. The deceased’s uncles and aunts had several children (the deceased's cousins), some of which had predeceased the deceased but had left children of their own.

In the event that the application for a Benjamin order was successful, the plaintiff proposed to distribute the estate of the deceased to the cousins of the deceased who survived him.

Decision:

Hallen J discussed the principles of law regarding the use of a Benjamin order, namely that the representatives of an estate may apply to the court for a Benjamin order permitting them to distribute the estate on the grounds that certain events have or have not occurred. The purpose of this is to relieve the representatives of liability in the event that these grounds are incorrect.

For an application for a Benjamin order to be successful, the court must be satisfied that it was probable that the persons entitled on intestacy have been ascertained and that there were no further reasonable inquiries that could have been made to ascertain additional persons who may be entitled. Hallen J was satisfied that the relevant enquiries had taken place. In relation to the deceased’s paternal grandfather, his Honour considered that it was impossible that any of the deceased’s grandparents would still be alive at the date of the deceased’s death, considering that the deceased was 77 years old when he died. Even if that were not the case, his Honour noted that having regard to the size of the estate, it was impractical to conduct a next of kin inquiry (as was suggested in West v Weston (1998)).

Therefore, his Honour made orders in chambers that the plaintiff would be justified in distributing the estate to the cousins (and where relevant, their issue) of the deceased. This order was made without prejudice to the rights of any person to trace their share into the hands of the recipient if it is established that they had survived the deceased. The costs of the plaintiff were paid out of the estate on the indemnity basis.

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