Application by Little (Estate of Bruce Frederick Little) [2023] NSWSC 402

Application by Little (Estate of Bruce Frederick Little) [2023] NSWSC 402

The extensive searches undertaken by the executor, former and current solicitors, and a private investigator made it probable that Christopher Thomas Little predeceased the Deceased and that the persons entitled under the Will had been ascertained. No reasonable further enquiries would improve the evidence, and further enquiries would be an unreasonable impost given the relatively small size of the estate. The executor was therefore justified in distributing the estate to the plaintiff and Russell Bruce Little in equal shares on that basis, without prejudice to tracing rights if another entitlement were later established.

Jurisdiction
Australia
Judgment Date
19 April 2023
Procedural Posture
Application by Executor for a Benjamin Order in Administration of a Deceased Estate / Summons Filed on 25 October 2022; Heard and Orders Made on 19 April 2023
Outcome
Benjamin order made. Costs to be paid out of the estate on an indemnity basis.
Legal Topics
['administration of Estates' 'benjamin Order' 'missing Beneficiary' "executor's Distribution of Estate" 'costs From Estate on Indemnity Basis']
['succession' 'equity'] ['administration of Estates' 'benjamin Order' 'missing Beneficiary' "executor's Distribution of Estate" 'costs From Estate on Indemnity Basis']

Case Brief

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Procedural Posture

Application by Executor for a Benjamin Order in Administration of a Deceased Estate / Summons Filed on 25 October 2022; Heard and Orders Made on 19 April 2023

Legal Issues

  1. 1 ['Whether the plaintiff executor should be justified in distributing the estate on the basis that Christopher Thomas Little did not survive the Deceased.' 'Whether the persons entitled under the Will had probably been ascertained and no reasonable further enquiries could improve the state of the evidence.' "Whether the plaintiff's costs should be paid out of the estate on an indemnity basis."]

Ratio Decidendi

The extensive searches undertaken by the executor, former and current solicitors, and a private investigator made it probable that Christopher Thomas Little predeceased the Deceased and that the persons entitled under the Will had been ascertained. No reasonable further enquiries would improve the evidence, and further enquiries would be an unreasonable impost given the relatively small size of the estate. The executor was therefore justified in distributing the estate to the plaintiff and Russell Bruce Little in equal shares on that basis, without prejudice to tracing rights if another entitlement were later established.

Court Disposition

Benjamin order made. Costs to be paid out of the estate on an indemnity basis.

Orders

  • ['That the Plaintiff would be justified in distributing the Estate of the Late Bruce Frederick Little ("the Deceased") to the Plaintiff and Russell Bruce Little in equal shares upon the basis that the Deceased was survived by the Plaintiff and Russell Bruce Little but not by Christopher Thomas Little, without...