In the Estate of Hansie Hart

• Jurisdiction: Australian Capital Territory
• Judge: Crowe AJ
• Judgment Date: 08 November 2019
• Court: Supreme Court of ACT
• Docket Number: File Number: PRO 239 of 2017
• Date: 08 November 2019

[2019] ACTSC 317

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Crowe AJ

File Number: PRO 239 of 2017

Public Trustee and Guardian of the ACT

(Applicant)

Representation:

Counsel

P Thomas (Applicant)

Cases Cited:

Application of NSW Trustee and Guardian; Estate of Dudley Keith Vaughn[2019] NSWSC 850

re Benjamin; Neville v Benjamin[1902] 1 Ch 723

Re Mas; Weston and Donaldson[2018] VSC 405

Legislation Cited:

Administration and Probate Act 1929 (ACT) ss 87C, 97A

WILLS AND ESTATES — Directions pursuant to s 97A of the Administration and Probate Act 1929 (ACT) — where named beneficiary cannot be located — where extensive searches have been undertaken

Decision:

See [11]

Crowe AJ

1 The late Hansie Hart died on 17 December 2016. She was 97 years old. On 30 November 1999 she made her last will and testament. On 4 April 2017 the Public Trustee and Guardian of the ACT ( the Trustee) elected pursuant to s 87C of the Administration and Probate Act 1929 (ACT) ( the Act) to administer the estate. The estate is a small one. The inventory attached to the Administration Election indicates a net value of just over $57,000.

2 Clauses 4 and 5 of the will provided:

• 4. I GIVE the whole of my estate to my Trustee UPON TRUST to sell or retain the same and to pay my just debts funeral and testamentary expenses and all duties payable in my estate and to stand possessed of the balance (my residuary estate) UPON TRUST for my friend CHRIS BRELLS absolutely should she survive me by thirty (30) days and IT IS MY WISH that my said friend utilise such funds to provide for the care and comfort of any pet I own at the date of my death PROVIDED THAT should she dies before me then the following provisions apply.

• 5. I GIVE DEVISE AND BEQUEATH my residuary estate to my Trustee UPON TRUST for my daughter-in-law CLARE HART absolutely PROVIDED THAT should my said daughter-in-law die before me THEN FOR such of her children who survive me and attain their majority as tenants in common in equal shares.

3 By Application in Proceeding dated 21 October 2019 the Trustee seeks the opinion or direction of the Court as to the following:

• 1. Pursuant to s 97A of the Administration and Probate Act 1929 (ACT) that:

  • a. Pursuant to the principles in re Benjamin; Neville v Benjamin[1902] 1 Ch 723, the applicant may distribute the estate of the Late Hansie Hart to Clare Caple (referred to in the will as Clare Hart) as residuary beneficiary.

4 Section 97A of the Act provides:

97A Public trustee and guardian may obtain directions of Supreme Court

• (1) The public trustee and guardian may, ex parte, take the opinion or obtain the direction of the Supreme Court on any question, whether of law or fact, arising under this part, or in the court of his or her duties.

• (2) The Supreme Court must give this opinion or direction to the public trustee and guardian, and the public trustee and guardian must act in accordance with this opinion or direction and must, on the request of any person interested in the estate, communicate to the person the effect of the opinion or direction.

5 The Trustee relies on the following affidavits:

• (1) Emma Jane Reilly, affirmed 15 October 2019;

• (2) Rachel Kathleen Watson, sworn on 15 October 2019; and,

• (3) Gregory Burn, sworn on 18 October 2019.

6 These affidavits establish that the following searches have been conducted by the Trustee and its solicitors:

• (1) Between 25 January 2017 and 22 June 2018, Mr Burns of the Public Trustee & Guardian, with the assistance of his staff, conducted a number of searches for Ms Chris Brells, including: on Facebook; White Pages; the electoral roll; via a Notice of Election filed published in the Canberra Times; and, using a genealogy service. None of these searches were successful in locating the individual. Relatives of the Deceased were also contacted for information, as well as her place of residence at the time of her death, a friend of the Deceased and an individual with the same name who confirmed they are not the person in question. All these attempts were also unsuccessful.

• (2) On or about 3 May 2019, Ms Reilly of Moray & Agnew instructed Procare, a private investigation firm, to identify the Chris Brells referred to in the will of Hansie Hart. A report was received from Procare, dated 24 May 2019, advising that they were unable to definitively located Chris Brells. After providing further instructions on or around 31 May 2019 to Procare to conduct further searches, an additional report, dated 25 June 2019, was provided. This report also set out that despite attempts, Chris Brells could not be located.

• (3) Between 30 July 2019 and 15 October 2019, Ms Watson of Moray & Agnew conducted a ‘person locator search’ via Infotrack and called the phone numbers of an individual with the same last name residing in Western Australia. These attempts also failed to locate Ms Chris Brells.

7 Mr Thomas, who appeared for the Trustee, referred me to the decision of Henry J in Application of NSW Trustee and Guardian; Estate of Dudley Keith Vaughn[2019] NSWSC 850 which contains a useful summary of the applicable principles. It is in the following terms (emphasis added) at [11]–[15]:

A “Benjamin order” ( In re Benjamin; Neville v...