NSW Trustee & Guardian; In the Estate of Rex

HIS HONOUR: This is an application by the NSW Trustee & Guardian ("the trustee") as administrator of the estate of the late Karl Rex. Without disrespect, I shall refer to the various persons connected with this application by their given names.

Karl died on 27 February 2012 in Concord Hospital. He died intestate and his estate is therefore to be administered in accordance with the intestacy law contained in Chapter 4 of the Succession Act 2006 (NSW) (the “Act”).

Karl was born in Germany on 19 April 1939. The evidence discloses that his father, Emil, was born in what was then East Prussia around 1900. Emil is said to have died in action during the Second World War in the Crimea in 1943. Strictly speaking, there is only hearsay evidence of Emil's death.

Karl's mother was born in East Prussia in 1911. Her name was Martha. Martha and Emil married in Germany in 1937. As far as the records disclose, Emil and Martha had three children: Karl (born in 1939), Willi (born in 1941 and still living) and Olga (born in 1938 and killed in a traffic accident in 1949).

The Court is satisfied that all reasonable searches have been undertaken to determine whether or not Karl had or has any other half or full-blooded siblings in Germany and Poland. The fungibility of Central European borders during the twentieth century makes it appropriate for searches to have been undertaken in both of those countries.

Karl emigrated to Australia in 1962, landing in Melbourne. According to his Australian immigration records of that time, he had never married and had no children. At some point Karl came to Sydney, where he settled in Dulwich Hill. Because Karl landed in Melbourne and subsequently came to Sydney, searches have been undertaken in both New South Wales and Victoria to ascertain whether he had any children in Australia, had ever married or was ever in a relationship. All of those searches have yielded a negative result.

The outcome of all of these enquiries is that it appears that Karl's only surviving relative is his brother, Willi. Those searches, of course, do not exclude the possibility of Karl having been in a relationship, or produced children of whom no-one knows, or of Karl having a sibling of whom no-one knows. However, the Court is satisfied that, in all the circumstances, all reasonable searches have been undertaken to explore those possibilities. To require the trustee to undertake further searches would be to engage in an unnecessarily expensive and time consuming exercise with no reasonable prospect of finding out any further information.

In those circumstances, the trustee applies for what is known as a “Benjamin order” derived from Re Benjamin; Neville v Benjamin [1902] 1 Ch 723. In NSW Trustee & Guardian (Estate of Peter Urso) [2013] NSWSC 903, Hallen J discussed Benjamin orders. I gratefully adopt what his Honour said.

As Nourse J noted, the making of a Benjamin order does not destroy the rights of other beneficiaries who may be undiscovered at the time of the making of the order. However, the order does permit for the orderly administration of the estate in accordance with, to borrow His Lordship’s language, the "practical probabilities". The Court is satisfied that the practical probabilities in the present case are that Karl's only surviving relative is Willi.

Given that it appears that Karl left his brother Willi but no surviving parents, spouse, children or nieces or nephews, s 129 of the Act is applicable, which provides:

It follows that, by operation of section 129(1), Willi is entitled to Karl's estate, in the absence of any other siblings, spouse, parents, nieces or nephews or issue being identified.

Accordingly, the Court orders: