Warwick John Nelson, Re the Estate of the late Kevin Stack

[2011] NSWSC 764

Supreme Court

New South Wales

Medium Neutral Citation:	Warwick John Nelson, Re the Estate of the late Kevin Stack [2011] NSWSC 764
Hearing dates:	15 July 2011
Decision date:	18 July 2011
Jurisdiction:	Equity Division
Before:	Rein J
Decision:	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)
Catchwords:	SUCCESSION - application for Benjamin order - application by the plaintiff to administer the estate on certain assumptions
Legislation Cited:	Probate and Administration Act 1898 (NSW)
Cases Cited:	In re Benjamin; Neville v Benjamin [1902] 1 Ch 723
Category:	Principal judgment
Parties:	Warwick John Nelson (plaintiff)
Representation:	J E Armfield (plaintiff) Southwell-Keely Law (plaintiff)
File Number(s):	SC 2011/194393

EX TEMPORE Judgment

1. In this case, the plaintiff is the administrator of the estate of the late Kevin Stack. The deceased left no will. He died at the age of 83. The plaintiff in his affidavit of 7 June 2011 sets out the facts upon which he bases the present application. Put very shortly, what is sought is an order that the plaintiff be entitled to administer the estate on the basis of three assumptions; namely, that:

(1)   the deceased's father did not survive the deceased;

(2)   the deceased had no siblings, and

(3)   the deceased's father did not have any siblings, or if he did that those siblings did not survive the deceased.

1. The order, if made, will enable the plaintiff to administer the estate. The only surviving relative of the deceased within the category set out in s 61B of the Probate and Administration Act 1898 (NSW) (the relevant legislation given the death of the deceased in June 2009) of whom the plaintiff is aware is the plaintiff's mother, Kathleen Nelson, who is the deceased's aunt, being a sister of the deceased's mother. Mrs Nelson is 92 and in poor health. She suffers from Alzheimer's disease. Mr Nelson makes this application, in effect, and with the consent of his sister, as his mother's guardian.

1. An order of the kind sought known as a Benjamin order is so styled after the case of In re Benjamin; Neville v Benjamin [1902] 1 Ch 723 , a decision of Joyce J. In that case, the administrator did not know whether a beneficiary had perished, and, if so, whether he had done so before the testator. Joyce J held that the beneficiary should be presumed to be dead, and, there having been no claim by any executor of the estate of the beneficiary, that the administrator could proceed on the basis that the beneficiary had not survived the testator.

1. In this case, so far as the presumption is concerned, it concerns, firstly, a person who did exist, but if he was still alive at the time of deceased's death, would be at least 100 years of age. His identity and whereabouts are not known and he is, in effect, untraceable.

1. There is positive evidence in this case that the deceased had no spouse or children and that his mother had no progeny other than him. It is possible that the deceased had siblings by his father or that his late father had siblings but there is no evidence that he did. If his father had siblings, they would be of very advanced years. If his father had a child by another woman, the strong likelihood is that their connection to the deceased was unknown, since there is evidence which suggests that the identity of the deceased's father was kept from the deceased, and the plaintiff has no knowledge of any such relatives of the deceased.

1. I am satisfied that it is appropriate to make an order of the kind sought by the plaintiff in this matter.

1. I make orders in accordance with paragraph 1 of the summons save that in the second last line the word "or" should be inserted before "any parent".

1. Order that the costs of the plaintiff on the indemnity basis be paid out of the deceased's estate.

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