NSW Trustee and Guardian (Estate of Peter Urso) [2013] NSWSC 903

NSW Trustee and Guardian (Estate of Peter Urso) [2013] NSWSC 903

The Court was satisfied, based on the evidence, that the deceased's parents predeceased him, permitting distribution of the intestate estate to the only surviving issue of his two predeceased sisters, per stirpes, pursuant to a Benjamin order protecting the administrator.

Parties
Plaintiff: NSW Trustee and Guardian
Jurisdiction
Australia
Judgment Date
03 July 2013
Procedural Posture
Estate Administration (probate/intestacy) / Final Determination—orders for Distribution
Outcome
Benjamin order granted permitting distribution of estate; orders as to distribution and costs made
Legal Topics
Benjamin Order, Next of Kin Inquiry, Distribution of Intestate Estate
Succession Law Probate Trusts Benjamin Order Next of Kin Inquiry Distribution of Intestate Estate

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Parties

NSW Trustee and Guardian

Plaintiff

Procedural Posture

Estate Administration (probate/intestacy) / Final Determination—orders for Distribution

Legal Issues

  1. 1 Whether the father of the deceased predeceased the deceased for purposes of intestate distribution
  2. 2 Identification of persons entitled on intestacy to the deceased’s estate
  3. 3 Appropriateness of making a Benjamin order to resolve uncertainty about next of kin

Ratio Decidendi

The Court was satisfied, based on the evidence, that the deceased's parents predeceased him, permitting distribution of the intestate estate to the only surviving issue of his two predeceased sisters, per stirpes, pursuant to a Benjamin order protecting the administrator.

Court Disposition

Benjamin order granted permitting distribution of estate; orders as to distribution and costs made

Orders

  • Plaintiff justified in distributing intestate estate on footing that deceased's father predeceased the deceased; one half to Milya Tymofiyovna Nenesko (issue of Alexandra), one half to Alexei Alexeevich Stepanenko (issue of Anna), subject to rights of any children of the deceased if later proven
  • Plaintiff’s costs to be paid out of deceased’s estate on indemnity basis