Application by NSW Trustee & Guardian (Estate of Edward Charles Turner) [2020] NSWSC 944

Application by NSW Trustee & Guardian (Estate of Edward Charles Turner) [2020] NSWSC 944

The Court was satisfied that the Plaintiff had carried out all necessary and proper investigations, that the identity of the deceased's paternal grandfather could not be established, that it was probable the persons entitled on intestacy had been ascertained, and that no reasonable further inquiries would improve the evidence; given the small size of the estate, further inquiries would also be an unreasonable impost. The Plaintiff was therefore justified in distributing the estate on the stated basis, without prejudice to tracing rights of any person later establishing entitlement.

Jurisdiction
Australia
Judgment Date
28 July 2020
Procedural Posture
Application for a Benjamin Order Concerning Distribution of an Intestate Estate / In Chambers and on the Papers; Principal Judgment
Outcome
Benjamin order made; Plaintiff justified in distributing the estate on the specified basis; Plaintiff's costs ordered from the estate on the indemnity basis; Summons otherwise dismissed and return date vacated.
Legal Topics
['intestacy' 'benjamin Order' 'unknown Next of Kin' 'distribution of Estate' 'indemnity Costs From Estate']
['succession' 'equity' 'administration of Estates'] ['intestacy' 'benjamin Order' 'unknown Next of Kin' 'distribution of Estate' 'indemnity Costs From Estate']

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Procedural Posture

Application for a Benjamin Order Concerning Distribution of an Intestate Estate / In Chambers and on the Papers; Principal Judgment

Legal Issues

  1. 1 ["Whether the Plaintiff administrator would be justified in distributing the deceased's intestate estate on the basis that the identified surviving cousins and estates were the persons entitled." "Whether uncertainty about the identity of the deceased's paternal grandfather required further inquiry before distribution." "Whether the Plaintiff's costs should be paid or retained out of the estate on the indemnity basis."]

Ratio Decidendi

The Court was satisfied that the Plaintiff had carried out all necessary and proper investigations, that the identity of the deceased's paternal grandfather could not be established, that it was probable the persons entitled on intestacy had been ascertained, and that no reasonable further inquiries would improve the evidence; given the small size of the estate, further inquiries would also be an unreasonable impost. The Plaintiff was therefore justified in distributing the estate on the stated basis, without prejudice to tracing rights of any person later establishing entitlement.

Court Disposition

Benjamin order made; Plaintiff justified in distributing the estate on the specified basis; Plaintiff's costs ordered from the estate on the indemnity basis; Summons otherwise dismissed and return date vacated.

Orders

  • ['Without prejudice to the rights of any person to trace his, her, or their share into the hands of the recipient if it be established that they survived the deceased or otherwise, the Plaintiff would be justified in distributing the estate of the deceased as to 2/12ths of the net estate to the Estate of Nona Jean...