Application by NSW Trustee and Guardian; Estate of Esme Veronica Hennessy [2019] NSWSC 340

Application by NSW Trustee and Guardian; Estate of Esme Veronica Hennessy [2019] NSWSC 340

The Court was satisfied on the balance of probabilities, having regard to the affidavit evidence, counsel's submissions, the searches conducted, and the modest size of the estate, that at least the substantial majority, if not all, beneficiaries had been ascertained and that no further reasonable enquiries should be made or would be likely to identify any further beneficiary. It was therefore appropriate to make a Benjamin Order permitting distribution of the deceased's estate in seven equal shares on the factual basis currently ascertained.

Jurisdiction
Australia
Judgment Date
28 March 2019
Procedural Posture
Application for Judicial Advice Under Trustee Act 1925 (nsw) S 63 and Uniform Civil Procedure Rules 2005 (nsw) R 54.3(2) Regarding Distribution of an Intestate Estate; Benjamin Order / Principal Judgment; Ex Tempore; Orders Made
Outcome
Application granted; the plaintiff was given liberty to distribute the estate on the specified seven-share basis, and its costs were ordered to be paid out of the estate on an indemnity basis.
Legal Topics
['judicial Advice' 'administration of Trust Property' 'intestacy' 'benjamin Order' 'distribution of Estate']
['succession' 'trusts and Estates' 'equity'] ['judicial Advice' 'administration of Trust Property' 'intestacy' 'benjamin Order' 'distribution of Estate']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Judicial Advice Under Trustee Act 1925 (nsw) S 63 and Uniform Civil Procedure Rules 2005 (nsw) R 54.3(2) Regarding Distribution of an Intestate Estate; Benjamin Order / Principal Judgment; Ex Tempore; Orders Made

Legal Issues

  1. 1 ['Whether the plaintiff should be at liberty to distribute the net estate of Esme Veronica Hennessy on the factual basis currently ascertained despite uncertainties about beneficiaries.' 'Whether further searches or enquiries for potential beneficiaries were required before distribution of the intestate estate.' "Whether the plaintiff's costs should be paid out of the estate on an indemnity basis."]

Ratio Decidendi

The Court was satisfied on the balance of probabilities, having regard to the affidavit evidence, counsel's submissions, the searches conducted, and the modest size of the estate, that at least the substantial majority, if not all, beneficiaries had been ascertained and that no further reasonable enquiries should be made or would be likely to identify any further beneficiary. It was therefore appropriate to make a Benjamin Order permitting distribution of the deceased's estate in seven equal shares on the factual basis currently ascertained.

Court Disposition

Application granted; the plaintiff was given liberty to distribute the estate on the specified seven-share basis, and its costs were ordered to be paid out of the estate on an indemnity basis.

Orders

  • ['The Plaintiff be at liberty to distribute the estate of the late Esme Veronica Hennessy upon the following basis: a) 1/7th to the children of Denis Joseph Hennessy: Joseph Hennessy born 1920, and Leo Hennessy born 1923. b) 1/7th to the daughter of Catherine Hennessy: Marie Patience Martin. c) 1/7th to the children...