Application by Walsh & Anor (Estate of Robert Charles Walsh (deceased))

HIS HONOUR: If a beneficiary has disappeared, how is the law to deal with the distribution of the estate to a share of which, he, or she, is entitled? That is the question to be determined in these proceedings. The answer, in a case where the distribution of the estate is held up by uncertainty as to whether the beneficiary is alive, or dead, the executors, may apply to the Court for, and the Court may make, an order that the executors are at liberty to distribute the estate on some particular factual basis — e.g. that a missing beneficiary is dead with, or without, issue.

It is this type of order that is termed “a Benjamin order”. It is derived from the Chancery decision of Joyce J in In re Benjamin; Neville v Benjamin [1902] 1 Ch 723, in which the testator was survived by twelve children. A thirteenth child, Philip, had disappeared whilst on vacation and after he was suspected of having defalcated monies from his employer. After an inquiry, the Master was unable to certify whether Philip was living or dead. No-one had responded to advertisements. The trustees sought permission to distribute the estate upon the basis that he had predeceased the testator. Joyce J held that Philip must be presumed dead, and gave that permission.

The jurisdiction to make such an order is not founded on proof, but rather on the basis of the practical probabilities of the facts, known to the court at the time of making the order: Bickford v Benson [2015] WASC 161 at [13] (Jenkins J). The question whether such an order should be made does not depend on whether there will be administrative inconveniences caused by the administrator retaining the estate funds, but depends on whether, in all the circumstances, the administrator ought to be allowed to distribute, and the beneficiaries allowed to enjoy their apparent interests sooner rather than later: Re Green’s Will Trusts; Fitzgerald-Hart v Attorney General [1985] 3 All ER 455 at 462 (Nourse J).

In Wilcox v Poole [1974] 2 NSWLR 693, Mahoney J (as his Honour then was), at 697, described the principle as “a beneficial one which may enable parties to have the early enjoyment of property to which they will, as a matter of practical certainty, ultimately become entitled”.

Very recently, I revisited the principles relevant to the making of Benjamin orders in Application by NSW Trustee & Guardian (Estate of Edward Charles Turner) [2020] NSWSC 944 at [41]–[44]. I shall not repeat what I wrote in that case. Such an order does not vary, or destroy, beneficial interests, but merely enables the estate to be distributed in accordance with the practical probabilities. The order is made 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 as the case may be.

In the present case, there is another principle upon which reliance could be placed. If the problem referred to arises in proceedings in which a party has to prove the death of the beneficiary, then, where there is no acceptable affirmative evidence that he, or she, was alive at some time during a continuous period of seven years or more, and it is proved (1) that there are persons who would be likely to have heard of him over that period; (2) that those persons have not heard of him; and (3) that all due inquiries have been made appropriate to the circumstances, there arises a rebuttable presumption of law that the beneficiary died at some time within that period, and the party upon whom the burden falls of proving the death of the beneficiary may rely on that presumption: Chard v Chard [1956] P 259 at 272 (Sachs J).

In Chard v Chard, his Lordship wrote:

This passage of Sachs J’s judgment was quoted, with apparent approval, by Holt M in In re Margarete Maria White [2001] TASSC 7 at [10], by Gray J in In the Estate of Peter Dale Hills [2009] SASC 176 at [6], and cited by Ferguson J (as her Honour then was) in Re Curran [2010] VSC 455 at [8].

The position was also stated by Herring CJ in In re Dolling, deceased; Dolling v Dolling [1956] VLR 535 at 538:

In Victoria Agnes Nolan as Administratrix of the Estate of Barbara Nolan, deceased v Nolan (2011) 6 ASTLR 80 at 90; [2011] WASC 224, EM Heenan J wrote, at [33]–[34]:

The Plaintiffs seek the following relief:

The proceedings were first listed in the Succession List on 24 April 2020, at which time a direction was made for further evidence to be filed. The matter was adjourned to 1 June 2020, and in accordance with directions then made, submissions were sent to the Court, on 15 June 2020. As I was satisfied that there was no requirement for a contradictor, I have dealt with the case, in Chambers, on the papers, with the agreement of the Plaintiffs’ legal representatives.

These proceedings concern the estate of Robert Charles Walsh (the deceased), who died on 17 January 2012.

On 20 April 2012, this Court granted Probate of the deceased’s Will dated 11 November 2011 to John Henry Walsh and Gina Pantazopoulos Walsh, the two executors appointed under the Will. They are the Plaintiffs in these proceedings.

The sole question that arises in this matter relates to how one part of the deceased’s residuary estate should be distributed.

The deceased’s Will, relevantly, gave a pecuniary legacy of $20,000 to Lynette Judith Travers and then left the rest and residue of the whole of the estate to such of the three children of the deceased, namely Stephen Charles Walsh, Robert James Walsh and Susan Marion Walsh as survived the deceased and if more than one, in equal shares, provided that should any of them predecease him leaving issue, then the issue was, or were, to take the share to which their parent would have been entitled had he or she survived the deceased: Clause 3 of the Will.

Stephen Charles Walsh was born in May 1958; Robert James Walsh was born in March 1961; and Susan Marion Walsh was born in October 1966.

In the Inventory of Property, a copy of which was attached to, and placed inside, the Probate document, the deceased’s estate was disclosed as having an estimated or known value of $216,665. It was said to consist of real estate at Nowra East ($200,000), furniture, watches and jewellery (nominal value), money in bank or in financial institutions on deposit ($4,665) and two cars ($5,000 and $7,000).

A Notice of Intended Distribution of estate assets and payment of liabilities was advertised on 27 April 2012. In October 2012, the estate’s solicitors advised the Plaintiffs, in writing, that they were then “entitled to distribute the assets” as their office had “received no notification of particulars of any claims against the estate since the publication of the notice”.

Included in the letter from the estate’s solicitors, addressed to the executors, were particulars of the assets and liabilities of the estate. The gross value of the estate, (excluding a reference to cents), at that time, was said to be $186,805, and the outstanding liabilities were said to be $15,892.45, leaving $170,912 available for distribution. After the distribution of the pecuniary legacy of $20,000 to Ms Travers, the amount available for distribution would have been about $150,912, meaning that each of the children of the deceased would be entitled to $50,304.

As at 27 March 2020, the amount left to be distributed was $62,416. It comprises a term deposit ($50,416) and an amount of $12,000 held in the Trust Account of the Plaintiffs’ current solicitors.

The Plaintiffs, despite investigations, have not been able to locate Robert James Walsh. Importantly, none of his family members has been in contact with him for nearly 20 years.

The Plaintiffs rely upon an affidavit of Gina Pantazopoulos Walsh affirmed 27 March 2020, which relevantly provides:

The report referred to in par 9 above relevantly states:

A copy of some of the searches referred to are attached to the report and form part of the annexures to the affidavit of Ms Walsh.

The Plaintiffs also rely upon an affidavit affirmed 18 May 2020 of the other Plaintiff, John Henry Walsh, who is the brother of the deceased and the uncle of the three residuary beneficiaries. He states:

They also rely upon an affidavit affirmed 20 May 2020, of Stephen Charles Walsh, who states:

In an affidavit, affirmed on 20 May 2020, Susan Marion Walsh states:

Each of his siblings, and his mother, is a person with whom it might be expected Robert James Walsh would keep in touch.

Finally, the Plaintiffs rely upon an affidavit affirmed 22 May 2020, of Ms E Edwin, a solicitor employed by their solicitors. She gives evidence of the searches she has undertaken, including, “an on-line search of the probate registries in NSW, Queensland and Victoria” respectively, with no return result. She also gives evidence of a conversation that she had with Rosemary Madge Kingston, Robert’s mother, who informed her that the last time she saw her son, Robert, “would have been about 30 or 40 years ago”. Ms Kingston added that it may have been earlier.

I am satisfied that the Plaintiffs have carried out the necessary and proper investigations to locate Robert James Walsh and that there are no further reasonable enquiries that should be made and would be likely, in any event, to identify whether he is still alive. The absence of any positive identification or response leads to the inference that he may have died.

In the written submissions provided on behalf of the Plaintiffs, reliance is placed upon Uniform Civil Procedure Rules 2005 (NSW) r 54.3(2) which, relevantly, provides that proceedings may be brought for the determination of any question which could be determined in administration proceedings, including any question arising in the administration of an estate.

In Re Parker [1995] 2 Qd R 617, Lee J wrote at 621:

The standard of proof is the balance of probabilities.

Where a court is unable to draw an inference of death from facts given in evidence, it may have resort to what has been described as “the presumption of death”. The Plaintiffs presumably invoke the presumption, although not specifically adverted to in the written submission provided on their behalf, that if a person has been absent for seven years, and has not been heard of by those who could be expected to have heard, he or she will be presumed to have died some time during the period of that person’s absence unless there is proof to the contrary that the person is still alive.

It is important not to confuse the process of inferring death from the evidence available, and the application of the presumption of death at law. The learned authors of Stephen Janes, David Liebhold and Paul Studdert, Wills, Probate and Administration Law in New South Wales (2nd ed, 2020, Lawbook Co), write at 637:

This case, as is evident from the recitation of the facts above, is an example of the latter. I dealt with the former in Estate of Lyn Burtonwood [2020] NSWSC 715.

The common law principles as to the presumption of death at law are of long standing. These principles were well-summarised in Allman & Co v M’Cabe [1911] 2 IR 398, in which Boyd J wrote at 402:

In Australia, the common law principles applied in circumstances involving the disappearance of a person were summarised by Dixon J (as his Honour then was) in Axon v Axon (1937) 59 CLR 395; [1937] HCA 80. His Honour described the common law presumption of death as a rebuttable legal inference that in certain circumstances, after an absence of seven years, a person may be presumed dead, stating at 404–405:

Latham CJ explained at 401:

Evatt J wrote at 411–412:

The effect of the presumption is to give rise to a conclusion that, at the time of the proceedings, the person is no longer alive. There is no presumption as to when the person died. Nor is it presumed that death occurred seven years after the last contact with the person.

As Waddell J (as his Honour then was) put it in Halbert v Mynar [1981] 2 NSWLR 659 at 664:

The court merely declares that as at the date of the institution of the proceedings the relevant person is dead: Ross v NRMA Life Limited (1993) 7 ANZ Insurance Cases ¶61-170 at 77,964 (Young J).

Whilst the law has used the period of seven years as a yardstick to displace the inference of continuation of life, the period involved is substantially longer in this case.

Although, in the circumstances discussed above, the Court may presume a person to have died, there is no common law presumption that a person has died without issue: In re Jackson; Jackson v Ward [1907] 2 Ch 354 at 356–357 (Kekewich J); Re Saunders; Park v Austin [1928] NZLR 391 at 393–394 (Blair J); Re Reynolds’ Trusts [1942] QWN 16 at [7] (E A Douglas J).

In Estate of Howard (1996) 39 NSWLR 409, Cohen J addressed these authorities at 415:

His Honour had also noted, at 415, that “[a]lthough there is a certain artificiality in raising presumptions when facts are not really known, the law relating to the presumption of death has grown out of the necessity to have a finding which will give a practical solution where otherwise there would be only continuing uncertainty for an indefinite period”.

His Honour’s reference to In re Benjamin is apt. As the learned authors of Wills, Probate and Administration Law in New South Wales point out at 639, in the absence of a legal presumption of death without issue, one solution is for a Plaintiff to obtain a Benjamin order. That is what should occur in this case.

In the circumstances, I am unable to make the declaration sought in pars 1 and 2 of the Summons. I cannot be satisfied, on the current evidence, that Robert James Walsh predeceased the deceased or that he died without issue. That does not mean, however, that I should not find that, at the time of the proceedings, he is no longer alive. It is clear that he went missing in the early 2000s and has not been heard of since then. More than seven years has elapsed.

There is simply no reliable information about him since he was last spoken to. There is no suggestion that any of his family have shut their eyes to possible sources of reliable information, or that he has been heard of by persons other than those likely to have heard of him. It is not suggested that there are circumstances, other than death, to account for the absence and lack of contact.

I am satisfied that all reasonable investigations have been undertaken by the Plaintiffs to determine whether he is still alive. In my view, to require them to undertake any further searches would be unnecessarily expensive and time consuming with no reasonable prospect of eliciting any further information.

It is clear that there remains some uncertainty as to whether Robert James Walsh died, and if so, whether he died testate or intestate and, in either case, who may be entitled to his estate. As such, this is an appropriate case for the making of a Benjamin order.

In the circumstances, I order that the Plaintiffs are at liberty to distribute the balance of the deceased’s estate to Stephen Charles Walsh and Susan Marion Walsh, the only two residuary beneficiaries named in the Will of the deceased.

I order that the Summons otherwise be dismissed. I also order that the Plaintiffs’ costs, calculated on the indemnity basis, of the proceedings, be paid, or retained, as the case may be, out of the estate of the deceased.