The Estate of Denise Daughne Kelpe [2019] NSWSC 1226

The Estate of Denise Daughne Kelpe [2019] NSWSC 1226

The four-person residuary bequest was not a class gift because the named beneficiaries had no identifying characteristic apart from the testator's apparent desire to benefit them, and Succession Act 2006 (NSW), s 42 did not apply because the will was made before March 2008. The shares for Catherine G W McLenalan and Arthur H H Tyrer therefore fell into intestacy. On the evidence, the deceased had no surviving spouse, children, siblings, parents, grandparents, uncles, aunts or first cousins entitled on intestacy, and the Administrator's investigations were sufficient; the Crown was therefore entitled to those two shares as bona vacantia.

Jurisdiction
Australia
Judgment Date
16 September 2019
Procedural Posture
Re Benjamin Application for Directions as to Distribution of an Estate / Application for Judicial Advice/directions
Outcome
The plaintiff was justified in distributing the relevant shares of residue to the Crown as bona vacantia.
Legal Topics
['re Benjamin Application' 'residuary Bequest' 'class Gift' 'intestacy' 'bona Vacantia' "administrator's Investigations"]
['trusts and Trustees' 'succession' 'probate and Administration'] ['re Benjamin Application' 'residuary Bequest' 'class Gift' 'intestacy' 'bona Vacantia' "administrator's Investigations"]

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Procedural Posture

Re Benjamin Application for Directions as to Distribution of an Estate / Application for Judicial Advice/directions

Legal Issues

  1. 1 ['Whether the four-person residuary bequest was a class gift so that the two surviving beneficiaries received the shares of the two deceased named beneficiaries.' 'Whether Succession Act 2006 (NSW), s 42 applied to the will made in February 1996.' 'Whether the two failed shares under the four-person residuary gift fell into intestacy and were payable to the Crown as bona vacantia.' "Whether the Administrator's investigations were sufficient for the Court to sanction the proposed distribution."]

Ratio Decidendi

The four-person residuary bequest was not a class gift because the named beneficiaries had no identifying characteristic apart from the testator's apparent desire to benefit them, and Succession Act 2006 (NSW), s 42 did not apply because the will was made before March 2008. The shares for Catherine G W McLenalan and Arthur H H Tyrer therefore fell into intestacy. On the evidence, the deceased had no surviving spouse, children, siblings, parents, grandparents, uncles, aunts or first cousins entitled on intestacy, and the Administrator's investigations were sufficient; the Crown was therefore entitled to those two shares as bona vacantia.

Court Disposition

The plaintiff was justified in distributing the relevant shares of residue to the Crown as bona vacantia.

Orders

  • ['An order that in the events which have happened the plaintiff is justified in distributing the estate of the late Denise Daughne Kelpe who died on 11 November 2017 and whose estate is the subject of the grant of letters of administration with the will annexed issued by the Court on 14 November 2018, so far as...