Estate of Ian Roderick Douglas, Cummins & Anor v Wu [2014] NSWSC 478

When Ian Roderick Douglas died in 2013 as an unmarried man, he left a Will which had the following clause:

“As to one half of the residue: for my daughter DARCEL WU of [address].

As to the other half of the residue: for my other daughter whom I am yet to find and whose name and whereabouts are unknown to me at the time of my Will but is believed to live in Victoria (“my Victorian daughter”). If it can be established that she died before the leaving children then those children then  her children [sic] shall take the share which their mother would otherwise have taken.

If my Victorian daughter cannot be found or is proved not to have survive me and to have dies without children then the share she would have taken shall pass to my daughter DARCEL WU.”

Neither the executors, or any other person named in the Will, including the deceased’s daughter Darcel, had any knowledge of the deceased having another daughter.

The executors approached the Supreme Court of New South Wales for directions that they would be justified in distributing the whole of the estate to Darcel without prejudice to the rights of the Victorian  daughter if it ever be established that she existed and survived the deceased, or to the rights of any children she might have had.

In the first instance, the court directed that there be advertisements placed in Victorian newspapers, including regional newspapers, for any person having knowledge of the Victorian daughter or her children. No response was received. However, it emerged from evidence given by Darcel that her maternal uncle might be able to provide further information concerning the existence of a Victorian daughter.

Thereafter, at the direction of the court the executor embarked on obtaining comprehensive affidavit evidence about the deceased’s personal history going back to the late 1950’s and early 1960’s, including evidence from relatives and neighbours of the deceased and other people that knew him. The court found that it was probable that the deceased had another daughter who was probably born in the late 1950s or early 1960s but she was not located.

After embarking on that exercise, the court was satisfied that all reasonable attempts had been made by the executors to locate the beneficiary described by the deceased as his Victorian daughter.

The order sought by the executors is known as a “Benjamin order”. The effect of such an order being to relieve the executor of liabilities from the estate should it be proven in the future that the estate or part of it was distributed to the wrong person.

As all reasonable enquiries had been made as directed by the court, it was ordered that the executor would be justified in distributing the whole of the residuary estate of the deceased to his surviving daughter Darcel.

Note: Under a Benjamin order, whilst the executors were at liberty to distribute the estate, it does not  prejudice the right of the Victorian daughter or her children to claim her share of the residuary estate from  Darcel if it ever be established that she or they existed and survived the deceased.