Warwick John Nelson, Re the Estate of the late Kevin Stack [2011] NSWSC 764

Warwick John Nelson, Re the Estate of the late Kevin Stack [2011] NSWSC 764

The Court was satisfied that a Benjamin order was appropriate because there was positive evidence that the deceased had no spouse or children and that his mother had no progeny other than him, while any possible father, paternal siblings or paternal collateral relatives were untraceable, unsupported by evidence, or would likely be of very advanced years. The plaintiff could therefore administer the estate on the stated assumptions and distribute it to the known surviving relative, Kathleen Nelson.

Jurisdiction
Australia
Judgment Date
18 July 2011
Procedural Posture
Succession Application for Benjamin Order / Principal Judgment
Outcome
Application granted; the plaintiff may distribute the estate of the deceased to the plaintiff's mother as sole beneficiary entitled pursuant to s 61B of the Probate and Administration Act 1898 (NSW).
Legal Topics
['benjamin Order' 'intestacy' 'administration of Estate' 'distribution to Statutory Beneficiary']
['succession' 'probate and Administration'] ['benjamin Order' 'intestacy' 'administration of Estate' 'distribution to Statutory Beneficiary']

Case Brief

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Procedural Posture

Succession Application for Benjamin Order / Principal Judgment

Legal Issues

  1. 1 ["Whether the administrator should be entitled to administer the estate on the assumptions that the deceased's father did not survive the deceased, the deceased had no siblings, and the deceased's father did not have siblings or any such siblings did not survive the deceased." 'Whether the estate could be distributed to Kathleen Nelson as the only surviving relative of the deceased known to the plaintiff within the category set out in s 61B of the Probate and Administration Act 1898 (NSW).']

Ratio Decidendi

The Court was satisfied that a Benjamin order was appropriate because there was positive evidence that the deceased had no spouse or children and that his mother had no progeny other than him, while any possible father, paternal siblings or paternal collateral relatives were untraceable, unsupported by evidence, or would likely be of very advanced years. The plaintiff could therefore administer the estate on the stated assumptions and distribute it to the known surviving relative, Kathleen Nelson.

Court Disposition

Application granted; the plaintiff may distribute the estate of the deceased to the plaintiff's mother as sole beneficiary entitled pursuant to s 61B of the Probate and Administration Act 1898 (NSW).

Orders

  • ["The plaintiff is entitled to administer the estate on the basis that the deceased's father did not survive the deceased, the deceased had no siblings, and the deceased's father did not have any siblings or any such siblings did not survive the deceased." "The costs of the plaintiff on the indemnity basis are to be...