Section 102 of the Succession Act 2006 (NSW) provides that an intestate is a person who dies, and either does not leave a will, or leaves a will, but does not dispose, effectively, by will, of all, or part, of their property

When a Deceased is domiciled in New South Wales at the time of their death, the law of New South Wales determines the succession to their intestate estate. Chapter 4 of the Succession Act 2006 (NSW) provides for distribution on intestacy, as at the date of the deceased’s death: Public Trustee v Kehagias [2009] NSWSC 972, per McLaughlin AsJ, at [11].

• The deceased’s spouse is entitled to the whole estate, as long as the deceased is not also survived by any children from a previous relationship.

• If there is no spouse, the deceased’s children are entitled to the whole estate in equal shares.

• If there is no spouse or children, the deceased’s surviving parents are entitled to the whole estate (in equal shares).

• If there is no spouse, child or parent, the deceased’s surviving siblings are entitled to the whole estate.

• If a sibling of the deceased has died, leaving any surviving children, then those nephews and nieces of the deceased are entitled to the share of the estate that would have gone to their parent (and so forth until the entitlement is exhausted).

• If the deceased has no spouse, child, parent, or sibling, the deceased’s surviving grandparents are entitled to the whole estate in equal shares.

• If the deceased has no spouse, child, parent, sibling or grandparent, the deceased’s surviving aunts and uncles are entitled to the whole estate in equal shares.

• If an aunt or uncle of the deceased has died, leaving any surviving children, then the cousins of the deceased are entitled to the share of the estate that would have gone to the cousins parent.

• The intestacy rules do not allow the estate to be distributed to anyone more remote than a first cousin of the deceased.

• Where there is no next of kin the estate is described as ‘bona vacantia and the State takes the assets.

While the State has entitlement it may distribute the assets to anyone with a ‘moral claim’ to the assets such as a person who was dependent on the deceased at the time of death.

The matter

In the Application by Peter John Clark (Estate of John Andrew Wardell) [2022] NSWSC 798 the deceased died, intestate, on 4 June 2020. The first Plaintiff, the uncle of the deceased, filed a Summons for Administration on 15 April 2022, seeking a general grant of letters of administration to him, and an order that the administration bond be dispensed with together with some affidavits in support.

On 7 May 2021, a deputy Registrar in Probate issued a requisition noting that the first Plaintiff appeared to have no beneficial interest in the estate, and, that unless special circumstances were shown to justify the Court exercising its discretion to make a grant,

“the application in its present form will be rejected”.

[2022] NSWSC 798 at [2]

Additionally in the absence of special circumstances, even the consent of the next-of-kin cannot be treated as a sufficient ground to support the application: [2022] NSWSC 798 at [2]

The deputy Registrar also pointed out that

“each class of persons in Chapter 4 of the Succession Act who would have a higher priority must be shown not to exist, or to have predeceased the [intestate] before the next class can be considered…”

[2022] NSWSC 798 at [3]

On 20 April 2022, responding to the requisition, the Plaintiffs’ solicitors sent an amended summons adding himself as the second Plaintiff, and sought, to protect the assets of the estate pending delay in making a general grant – grant of administration ad colligenda bona defuncti – as well as a final grant of letters of administration to the second Plaintiff only.

The decision

Having regard to all of the evidence, the court was satisfied that there is no utility in continuing any further searches concerning the identity of the deceased’s estranged father, and any of his next of kin who may have survived him.

The court held the chances of ascertaining the identity of the deceased’s father and the identity of any remoter next of kin, may be appropriately characterised as remote, if not impossible.

Applying Chapter 4 of the Act, it appears that the first Plaintiff, as the deceased’s mother’s brother is the only person Entitled to the estate of the deceased under the rules of intestacy.

Benjamin order

The first plaintiff sought a Benjamin order submitting there is uncertainty about a factual matter relevant to the distribution of the deceased estate. The Court may, in certain circumstances, make an order that the executor or administrator is at liberty to distribute the estate. It is this type of order is known as “a Benjamin order”

In the circumstances, the court was prepared to make a Benjamin order that the first Plaintiff, subject to the terms of the Benjamin order, is entitled to the whole of the deceased’s intestate estate under the rules of intestacy, and is entitled to a grant of administration alone.

Costs

The court held that as the first plaintiff has established a beneficial interest in the estate, and has no need to have a second administrator appointed; costs of the proceedings may be paid on an indemnity basis, out of the estate of the deceased.