Application of NSW Trustee & Guardian [2014] NSWSC 1857

Application of NSW Trustee & Guardian [2014] NSWSC 1857

A Benjamin order is warranted because inquiries have established to a practical certainty that there are no surviving next of kin, and any possible contrary contingency is too remote. The estate may be distributed to the Crown as bona vacantia, subject to the rights of any subsequently proven beneficiaries.

Jurisdiction
Australia
Judgment Date
22 December 2014
Procedural Posture
Application for Benjamin Order / Final Judgment
Outcome
Benjamin order made
Legal Topics
['benjamin Order' 'intestacy' 'bona Vacantia' 'distribution of Intestate Estate' 'next of Kin Search']
['equity' 'trusts and Estates'] ['benjamin Order' 'intestacy' 'bona Vacantia' 'distribution of Intestate Estate' 'next of Kin Search']

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Procedural Posture

Application for Benjamin Order / Final Judgment

Legal Issues

  1. 1 ['Whether a Benjamin order should be made in the administration of the intestate estate of Betty Kathleen Foster when beneficiaries cannot be found or excluded' 'Whether the estate may be distributed to the Crown as bona vacantia']

Ratio Decidendi

A Benjamin order is warranted because inquiries have established to a practical certainty that there are no surviving next of kin, and any possible contrary contingency is too remote. The estate may be distributed to the Crown as bona vacantia, subject to the rights of any subsequently proven beneficiaries.

Court Disposition

Benjamin order made

Orders

  • ['Plaintiff justified in distributing the estate of Betty Kathleen Foster on the basis that no next of kin survived; estate to Crown as bona vacantia, without prejudice to the rights of any person to trace their share if later proven' "Plaintiff's costs of proceedings to be paid out of the estate on the indemnity...