Wills and estates: June 2014

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

The Deceased died aged 72, leaving an estate valued at approximately $1.25 million. He was unmarried and was survived by one known adult daughter. Mr Douglas’ last will was made in 2010 and included the following clause: “MY executors shall hold the residue of my estate ON TRUST as follows: As to one half of the residue: for my daughter DARCEL WU. As to the other half of the residue: for my other daughter whom I have yet to find and whose name and whereabouts are unknown to me at the time of my Will but who is believed to live in Victoria (‘my Victorian daughter’). If it can be established that she died before me 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 survived me and to have died without children then the share she would have taken shall pass to my daughter DARCEL WU.”

The executors of the estate were unable to identify or locate the “Victorian daughter” and sought directions from the Court that they would be justified in distributing the whole of the estate to Darcel Wu, without prejudice to the rights of the unidentified Victorian daughter (or her children) to claims her or their half share of the residuary estate from Ms Wu. This is known as a “Benjamin order” and has the effect of relieving the legal personal representatives from liability if it should be proven that the estate or part of it was distributed to the wrong person. If the Victorian daughter appears, she would be entitled to claim against Ms Wu.

The Court heard evidence of the executors’ investigations and attempts to locate the “Victorian daughter” including the placement of advertisements in Victorian newspapers and evidence of members of the extended families of the deceased and Ms Wu. The deceased had told Ms Wu in 2012 that he had been told he had a daughter in Victoria and asked her to meet her once he located her. He told Ms Wu that he did not know the name of his daughter or anything about her, but only that she might exist. He did not disclose any further information to Ms Wu.

The Court was satisfied that all reasonable attempts had been made by the executors to locate the beneficiary, and ordered that they were free to distribute the estate to Ms Wu without personal risk. The Court further held that no conditions (such as a grant of security by Ms Wu) should be placed on the order.