Supreme Court of Norfolk Island

Deputy Curator of Deceased Estates, in the matter of Champion [2023] NFSC 3

ORDERS

THE COURT ORDERS THAT:

1.    To the extent necessary, the Deputy Curator be heard further on the form of the orders to be made.

REASONS FOR JUDGMENT

BESANKO CJ:

Introduction

1    There are two actions before the Court. Both were commenced by Originating application and both involve applications under s 130 of the Administration and Probate Act 2006 (NI) by the Deputy Curator of Deceased Estates (the Deputy Curator) for the opinion, advice, directions and/or determinations and orders of the Court on certain questions and issues arising in the administration of an estate. The office of Curator of Deceased Estates (the Curator) is currently vacant. However, the Deputy Curator may exercise any function of the Curator, subject to any direction of the Curator (Administration and Probate Act 2006 (NI), s 5). The first application involves the estate of William Nihill Champion late of, Norfolk Island, deceased. The second application involves the estate of Sarah Clara Champion late of, Norfolk Island, deceased. William Nihill Champion and Sarah Clara Champion were married and had five children. The children were Walter Hutton Champion, William Anderson Champion, Malcolm Eadie Champion, Isabella May Champion and Alice Augusta Champion.

2    William Nihill Champion was born in 1848. He was lost at sea on or about 4 September 1920 in the vicinity of Niue Island. Sarah Clara Champion’s death certificate is to the effect that she married William Nihill Champion in about 1873 and she died on 31 December 1894. William Nihill Champion married a second time in 1900. His second wife was Clara Jane Champion.

3    William Nihill Champion made a will on 26 April 1907. In that will, he left all of his real property in Norfolk Island to his five children and the residue of his property to his second wife, Clara Jane Champion. Clara Jane Champion is named as the sole executrix of his estate.

4    On 28 May 1991, the Supreme Court of Norfolk Island made an order that the Curator of Estates of Deceased Persons of Norfolk Island Collect and Administer with the will the estate of William Nihill Champion (the male deceased). This order appears to have been made under s 92 of the Administration and Probate Ordinance 1929–1953 (ACT) and under that provision (and its present equivalent of s 125 of the Administration and Probate Act 2006 (NI)), the Court must specially authorise any distribution of assets by the Curator. The Deputy Curator seeks such an authorisation in this proceeding.

5    At the time of his death, the male deceased owned land described as Portion 44a situated on Norfolk Island. In 1998, Portion 44a was sold by the Curator to the Administration of Norfolk Island for $110,000. The sale proceeds remain held in trust by the Curator and the present balance is approximately $112,000.

6    Sarah Clara Champion (the female deceased) died in Norfolk Island on 31 December 1894. Her death certificate is to the effect that she was born on Pitcairn Island in 1851.

7    The female deceased died intestate and Letters of Administration in relation to her estate were granted to the Curator of Deceased Persons’ Estates on 27 May 1976. Further, on the same day, an order was made that the Curator be appointed Administrator of the estate with power to Collect and Administer the said estate. This order appears to have been made under s 92 of the Administration and Probate Ordinance 1929–1953 (ACT) and under that provision (and its present equivalent of s 125 of the Administration and Probate Act 2006 (NI)), the Court must specially authorise any distribution of assets by the Curator. The Deputy Curator seeks such an authorisation in this proceeding.

8    There remains a portion of land described as Portion 3d1, registered in the name of the Curator as administrator of the estate of Sarah Clara Champion deceased. The land is situated at 47 John Quintal Road, Norfolk Island. The area of the land is 3.6080 hectares. The land has been valued by CBRE Residential Valuations Pty Ltd. The market value of the land is said to be $750,000. In 1999, the Curator subdivided a small part of the land and sold that subdivided lot to a neighbour for $12,000. There remains in trust the sum of $10,306.59 which is the only other asset in the estate. There is an outstanding amount for land rates of $4,284.64.

9    The orders sought by the Deputy Curator are the same in the case of each estate, save and except for the estate concerned and the fact that in relation to the estate of the female deceased, an additional order is sought by reason of the fact that she died intestate. Not only are the orders sought the same subject to these exceptions, but the evidence relied on by the Deputy Curator in each case is identical as are the submissions made in the case of each estate.

The law governing the distribution of the female deceased’s estate

10    I will begin by addressing the additional order sought in the case of the female deceased. The order is as follows:

1.    That the estate of Sarah Clara Champion having died intestate at Norfolk Island on 31 December 1894 be distributed in accordance with the declaration and enactment of William Thomas Dennison, Governor of Norfolk Island, dated 12 October 1860 titled “Laws for regulating the transfer of, and dealings in land, in Norfolk Island”.

11    The Deputy Curator produced an extract transcribed from the preamble to the Norfolk Island Act 1913 (Cth). The relevant chronology is as follows:

12    As at the date of the female deceased’s death on 31 December 1894, Norfolk Island was responsible for its own governance and laws. Laws had been made by Sir William Thomas Dennison as (inter alia) Governor of Norfolk Island on 12 October 1860 under an Order of the Queen in Council dated 24 June 1856. Those laws were known as “Laws for Regulating the Transfer of, and Dealings in Land in Norfolk Island” (Land Laws). Clauses 9 and 10 of the Land Laws relevantly provided as follows:

9.    If any person having an estate in land shall die intestate, leaving a husband or wife surviving, the estate shall descend on such husband or wife during his or her life.

10.    Subject to such life interest, the estate shall go to the children of the intestate in equal shares, the share of any deceased child being equally divided among his or her descendants, if any …

13    The Deputy Curator has established that at the date of the female deceased’s death, Norfolk Island’s affairs were administered as a separate settlement by a Governor appointed by the Crown. Searches have been unable to locate any relevant amendment or repeal of the Land Laws.

14    The male deceased survived the female deceased. He was lost at sea on 4 September 1920 thereby terminating the life interest in the estate in land he was given by s 9 of the Land Laws. The female deceased’s five children survived her and there were no children who predeceased the female deceased.

15    In the circumstances I have outlined, the order sought by the Deputy Curator should be made.

The orders sought in relation to each estate

16    I turn now to the orders which are sought in the case of each estate. As I have said, they are identical, except for the estate concerned. They are as follows:

1.    That the estate of William Nihill Champion deceased be distributed equally to the estates of the deceased children of William Nihill Champion who survived him, namely:

(a)    Walter Hutton Champion;

(b)    William Anderson Champion;

(c)    Isabella May Champion;

(d)    Malcolm Eadie Champion; and

(e)    Alice Augusta Champion.

2.    That Margaret Grace Jeans and Ilona Faye Champion be appointed administrators of the estate of Walter Hutton Champion deceased limited to administration and distribution of his share in the estate of William Nihill Champion deceased.

3.    That 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 are entitled to share in the estate by Will or otherwise, the Curator is justified in distributing the share of William Anderson Champion deceased on the presumption he died intestate.

4.    That Virginia Kay Sherriff and Thea Murdene Vennell be appointed administrators of the estate of William Anderson Champion deceased limited to administration and distribution of his share in the estate of William Nihill Champion deceased.

5.    That Miles Selwyn Dillon is the succeeding executor under the estate of Isabella May Champion deceased.

6.    That 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 are entitled to share in the estate by Will or otherwise, the Curator is justified in distributing the share of Malcolm Eadie Champion deceased on the presumption he died intestate.

7.    That Richard Meikle be appointed administrator of the estate of Malcolm Eadie Champion deceased limited to administration and distribution of his share in the estate of William Nihill Champion deceased.

8.    That Geoffrey Court Rendell is the succeeding executor under the estate of Alice Augusta Champion deceased.

9.    That the Curator be authorised to make distribution of the estate of William Nihill Champion deceased in accordance with the above orders.

10.    That the Curator may apply for further orders or directions on seven (7) days notice in writing to that effect.

11.    That the Curator be entitled to deduct statutory commission and expenses incurred in the administration of the estate prior to distribution.

17    In the case of each estate, the application is supported by three affidavits, one of the Deputy Curator herself and the other two of her solicitor, Mr Frederick John Grose. The Deputy Curator’s affidavit is, for the most part, directed to the factual matters which I have already identified.

18    Mr Grose deposes that he is assisting the Deputy Curator in the administration of these estates. He has carried out a review of the old files of the Curator of Deceased Estates in relation to the estate of each deceased and he has made his own further investigations.

19    Mr Grose refers to the basic facts identified by the Deputy Curator. He then states that a review of the Curator’s files in the estates shows that there has been correspondence and inquiries over time with the descendants of those children to ascertain who is entitled to benefit under the estates. In his affidavit in the estate of the male deceased, Mr Grose refers to his affidavit in the estate of the female deceased and states that what follows by way of information and exhibits is the same in both cases.

20    Mr Grose refers to a notice published in newspapers circulating in Australia and New Zealand on or about 2 November 2002 directed to the children and grandchildren of the male and female deceased and asking them to contact the Curator. Contacts were made as a result of those notices and searches were undertaken to identify the eligible beneficiaries. Mr Grose has undertaken further communications with family members and carried out searches and inquiries on numerous websites in regard to the estates, wills, circumstances and families of each of the five beneficiary children. Those contacts, communications, searches and inquiries have resulted in the information set out in these reasons.

21    In his second affidavit in the proceeding involving the male deceased, Mr Grose deposes that he caused to be served by email, a copy of the application, affidavit of the Deputy Curator and affidavit of himself on the following: Margaret Grace Jeans, Virginia Kay Pinel and Thea Murdene Vennell, Miles Selwyn Dillon, Richard Meikle, Geoffrey Court Rendell and Mark Chester Rendell. Mr Grose states that all family representatives have signalled that they agree with the orders sought in the application. He served them with a letter and the documents in both the estate of William Nihill Champion and Sarah Clara Champion. The family representatives only returned one form on behalf of both estates.

1.    Walter Hutton Champion (Walter)

22    Walter died in Auckland, New Zealand, on 7 November 1960. He left a will dated 1 October 1960 and probate of this will was granted on 16 November 1960. Walter divorced his wife, Alice Maud Champion, in August 1933 and she died on 22 February 1936. There were five children of that marriage who survived Walter, being Thomas Keith Champion, Margaret Esme Finlayson, Walter Neville Champion, Selwyn Champion and Dorothy Sheffield. There was a son who predeceased Walter, John Wilfred Champion, and he died on 22 August 1960. He was not married and he left no children surviving him. A daughter, Norma Champion, predeceased Walter having died in 1926 at the age of 11 years.

23    By his will, Walter appointed his son, Walter Neville Champion, as his executor. Walter Neville Champion died on 2 November 1970 and probate of his will which was dated 6 December 1957 was granted on 11 December 1970. He appointed his wife, Gwendoline Grace Champion, as his executor. Gwendoline Grace Champion died on 9 March 1978. She left a will under which she appointed her sons, John Walter Champion and Paul Austin Champion, as her executors. Paul Austin Champion died on 6 January 1991 leaving John Walter Champion as sole surviving executor under his mother’s will and also, by succession (see below), the sole succeeding executor under the will of Walter Hutton Champion. John Walter Champion died on 10 October 2010. He appointed his daughter, Ilona Faye Champion, as his executor. However, probate was not required nor obtained in his estate.

24    Mr Grose deposes that Margaret Grace Jeans, who is a daughter of Walter Neville Champion and brother of John Walter Champion, has undertaken a significant role in assisting the Curator in the past and, in more recent times, the Deputy Curator, by providing family information and documents and has become the family spokesperson for what he calls the Walter Hutton Champion family group. Ms Jeans has agreed to act as representative of the Walter Hutton Champion family group for the purpose of assisting and providing instructions to the Deputy Curator in the finalisation and distribution of the estate. Mr Grose deposes that his dealings with Ms Jeans indicate that she is an appropriate and interested person to fulfill that role.

25    Mr Grose expresses the opinion that with the assistance of Ms Jeans and other family members and searches, he believes that they have sufficiently traced the entitled present beneficiaries of the five children beneficiaries under the will of Walter and that Walter’s share of his mother’s estate should be distributed in accordance with the terms of his will.

26    The specific orders sought in relation to Walter’s estate is that Margaret Grace Jeans and Ilona Faye Hutton be appointed administrators of his estate limited to his share in the estate of the male deceased (or the female deceased as the case may be).

27    The common law rule as to the transmission of the power and estate of an executor was stated by Griffith CJ (with whom Barton J agreed) in Maddock v Registrar of Titles (Vict) [1915] HCA 10; (1915) 19 CLR 681 in the following terms (at 688–689):

At common law the power and estate of an executor was regarded as founded upon the special confidence and actual appointment of the testator. His estate was therefore regarded as transmissible. It was held to be transmitted from a sole or last surviving executor to his own executor, but not from one of several executors to whom alone probate had been granted. So long as the chain of representation was unbroken the ultimate executor was regarded as the executor, and, as such the representative, of the original testator: Williams on Executors, 10th ed., p. 180.

28    In Drummond v Registrar of Probates (SA) [1918] HCA 58; (1918) 25 CLR 318, Barton J said the following (at 321):

There are certain things in this case that seem to be clear. In the first place, the rule laid down in Tristram & Coote, 15th ed., p. 68, is clear, namely, that “an executor having taken probate of his own testator’s will becomes executor, ipso facto, not only of that will, but also of the will of any testator of whom the other was the sole or surviving executor.”

29    The law is described in the following way in Halsbury’s Laws of England, 4th ed, Vol 17(2) at para 47:

On the death of a sole executor, or of the last survivor of several executors, the office devolves upon the executor of the sole or last surviving executor who has proved the will; and so long as the chain of representation is unbroken, the last executor in the chain is the executor of every preceding testator …

On the death of an executor who has survived the testator but never proved the will, the rights of that executor wholly cease and the representation to the testator and the administration of his estate devolve and are to be committed in like manner as if the executor had never been appointed executor.

(See also the discussion in Dal Pont GE and Mackie KF, Law of Succession, (2nd ed, LexisNexis Butterworths, 2017) at [10.83] and Croucher R and Vines P, Succession: Families, Property and Death (5th ed, LexisNexis Butterworths, 2019) at [16.17]–[16.18].)

30    The devolution of the office of executor is also the subject of a statutory provision in Norfolk Island which is to similar effect as the common law. Section 50 of the Administration and Probate Act 2006 (NI) is in the following terms:

50    Executor of executor

If—

(a)    probate of the will of a testator has been granted to a person (in this division called the original executor) as the sole executor, or as 1 of the executors, of the will of the testator; and

(b)    the original executor was, immediately before his or her death, the sole, or the last surviving, executor of the will of the testator; and

(c)    probate of the will of the original executor is granted to the executor, or 1 of the executors, (in this division called the succeeding executor) of the will of the original executor;

the succeeding executor becomes, on the grant of probate of the will of the original executor—

(d)    the executor of the will of the testator; and

(e)    the executor of the will of any other testator of whose will the testator was, immediately before his or her death, the executor under the application, or successive applications, of this section.

31    In the case of Walter’s estate, the evidence set out above shows that the chain of representation was broken. John Walter Champion died on 10 October 2010. He had appointed his daughter, Ilona Faye Champion, as his executor, however, probate was not required nor obtained in his estate.

32    It is necessary then to move to consider whether, in the case of Walter’s estate, an administrator can be appointed by the Court. The Court has an inherent power to appoint an administrator of an estate. There is also various statutory provisions which empower the Court to appoint an administrator.

33    In Re Kilby [2016] NSWSC 1433, Slattery J considered the scope of the New South Wales Supreme Court’s power — statutory and inherent — to appoint an administrator to an estate of a deceased person. His Honour said the following (at [13]–[15]):

13    The relevant law is clear. The Court has broad power to appoint an administrator in circumstances such as the present under Probate and Administration Act 1898 and in its inherent jurisdiction.

14    Young J pointed out in Firns v Firns [2000] NSWSC 396 (“Firns”) at 12, that the Probate and Administration Act, ss 33 and 40 confers broad jurisdiction on the Court to appoint administrators. Probate and Administration Act, s 33 gives statutory force to the Court’s inherent jurisdiction before the enactment of that legislation. Section 40 gives general jurisdiction for the grant of letters of administration in respect of the estate of any deceased person leaving real or personal property in New South Wales. It is not necessary to bring the circumstances within the particular powers to granted letters of administration under ss 63, 74 and 75 of the Act. As Young J pointed out in Firns “the way in which the Act has been construed over the years is that unless there has been a statutory taking away of jurisdiction the Court plainly has power to grant administration whenever it considers it appropriate to do so”: see Hamilton v Hamilton (1913) 33 WN (NSW) 46. This is one of those cases that does not clearly fall within the words of ss 69, 74 or 75.

15    The failure of the plaintiffs to find Ronald Caldwell’s executor grounds the Court’s jurisdiction to grant letters of administration de bonis non …

These observations apply equally to this Court. Save for s 33 of the Probate and Administration Act 1898 (NSW), each of the New South Wales sections referred to in this passage has a counterpart in the relevant Norfolk Island legislation (see Administration and Probate Act 2006 (NI) ss 8, 16, 23, 24).

34    In addition to noting the helpful general discussion as to the appointment of administrators in Dal Pont GE and Mackie KF at 298 [10.21] and following, I note the following passages as to limited grants of administration and a grant of administration de bonis non (at 362 [11.42]–[11.43]):

11.42    The law has long recognised various forms of limited administration, dealing with the manifold scenarios that may arise in cases where the administration of the deceased’s estate could otherwise be compromised by the lack of a person appointed for this purpose. The forms of limited administration discussed below, it must be understood, though the chief illustrations of the court’s jurisdiction to this end, do not exhaust it.

11.43    A grant of ‘administration de bonis non’ (meaning ‘of the estate not administered’) is apt in cases where the surviving or sole personal representative dies or goes missing before completing administration of the estate (namely where, it is said, the ‘chain of representation’ is broken). It is likewise apt where the administrator is appointed pursuant to the revocation of probate to the appointed executor(s) after the executorial function has commenced. Accordingly, it serves no useful purpose, and so is not granted, where nothing of substance remains to be administered in the estate. An administrator de bonis non has the same power and authority, vis-à-vis what remains to be administered, as the original personal representative.

35    I have already referred to Mr Grose’s evidence with respect to Ms Jeans and the assistance that she has provided to the Curator in the past and the Deputy Curator in more recent times. Mr Grose states, and I accept, that they have sufficiently traced the entitled present beneficiaries of the five children beneficiaries under the will of Walter Hutton Champion and that Walter’s share of his mother’s estate should be distributed in accordance with the terms of the will. I am satisfied that Margaret Grace Jeans and Ilona Faye Champion are appropriate persons to act as administrators of Walter’s estate limited in the manner sought.

36    The Deputy Curator put an alternative argument to the effect that should the Court reach the view that it was not practical or available to appoint the administrators identified by the Deputy Curator, that the Court should order that the Curator collect, administer and distribute the shares of Walter (among others) under s 121 or 125 of the Administration and Probate Act 2006 (NI). The sections upon which the Deputy Curator relies are s 121 or s 125 of the Administration and Probate Act 2006 (NI) and they are in the following terms:

121    Orders to curator to collect and administer

(1)    The Supreme Court may, on the application of the curator, grant to the curator an order to collect and administer the estate of any deceased person leaving real or personal estate within the jurisdiction in any of the following cases:

(a)    if the deceased leaves no executor, partner or next of kin, resident within the jurisdiction, willing and capable of acting in execution of his or her will or administration of his or her estate;

(b)    if the executors named renounce probate of the will of the deceased, and all the persons primarily entitled to administration by writing filed with the registrar decline to apply for administration;

(c)    if probate or administration is not applied for within 3 months after the death of the deceased;

(d)    if, after the end of 30 days from the death there is no reasonable probability of application being made within that period of 3 months;

(e)    if the estate or any part of the estate is liable to waste and the executor, any partner or the next of kin—

(i)    is absent from the locality of the estate; or

(ii)    is not known; or

(iii)    has not been found; or

(iv)    requests the curator in writing to apply for the order;

(f)    if the estate, or any part of it, is—

(i)    of a perishable nature; or

(ii)    in danger of being lost or destroyed;

(g)    if great expense may be incurred because of delay;

(h)    if by the will of the deceased the curator of estates of deceased persons or the curator is appointed to act.

(2)    The Supreme Court may in any case require the curator to—

(a)    give the notices; or

(b)    cite the person; or

(c)    produce the evidence,

it considers appropriate before granting the order applied for, or may make a temporary order for collection and protection only or limited to a part of the estate or otherwise.

(3)    The registrar may, on the application of the curator, supported by affidavits on which the Supreme Court would, in the opinion of the registrar, grant to the curator an order to collect and administer the estate of a deceased person, grant such an order as of course in the name and under the seal of the court, and the order shall be deemed to have been made by the court.

(4)    In any application under subsection (3) the registrar may make any requirement which the Supreme Court could, under subsection (2), make on an application to the court, and may make a temporary or limited order of the kind referred to in subsection (2).

(5)    The registrar shall not grant an order to the curator to collect and administer the estate of a deceased person in any case in which it appears to him or her to be doubtful whether the order ought to be granted.

(6)    In this section:

partner, in relation to a deceased person, has the same meaning as it has in part 3A in relation to an intestate.

125    Order to curator to collect and administer in special circumstances

(1)    If it is made to appear to the Supreme Court that there is reasonable ground to suppose that any person has died, either in or out of the jurisdiction of the court, intestate, leaving property within the jurisdiction, the court may order and empower the curator to collect and administer the estate, both real and personal, of that person.

(2)    The order shall be valid until revoked, and shall empower the curator to—

(a)    collect, manage, and administer the personal estate of the supposed deceased person; and

(b)    enter on and receive the rents and profits and otherwise manage the real estate; and

(c)    pay and discharge the debts and liabilities of that person,

in like way as if he or she were certainly dead and the curator had obtained an order to collect and administer the estate of the person under section 121.

(3)    The curator shall not proceed to any distribution of the assets without an order of the Supreme Court specially authorising the curator to make the distribution.

37    There was no analysis as to which paragraph in s 121(1) might be engaged in this case and, at first blush at least, it is difficult to see how s 125 might be engaged on any basis. As I have reached the view that the persons nominated by the Deputy Curator should be appointed as administrators, it is not necessary for me to consider the alternative advanced by the Deputy Curator.

2.    William Anderson Champion (William)

38    William died on 3 November 1945. William’s wife was Miriam Champion (nee Christen). She died on 11 April 1940.

39    Mr Grose wrote to the Public Trustee’s Office in New Zealand asking whether the Public Trustee’s Office had administered the estate of William Anderson Champion and asking for a copy of his will, if any, and any relevant order to administer or grant of probate. The Public Trustee responded by saying that they had been unable to locate any information on its current system or the previous system. Mr Grose searched the New Zealand Probate archives on the internet and did not find any probate granted in the name of William Anderson Champion deceased.

40    Ms Iza Stevenson is a granddaughter of William. She wrote to the Curator in May 1981 and in her letter included the following:

1.    I do not know, who administered my Grandfather’s estate, William Andersen [sic] Champion. He died as I said before in 1945 in Auckland, I honestly don’t think he had anything of consequence, and as far as the family were concerned, everything went to his then unmarried daughter, Gwendoline Rowena, who died in 1975 without issue.

41    William was survived by five children: Isabella May Sara Augusta Mackay who had three daughters, George Roswell Champion who had two daughters, Richard Homes Champion who had no children, Hugh Champion who is recorded as “Biological son adopted in New Zealand – not eligible”, and Gwendoline Rowena Bush who did not marry and had no children. All of William’s children are deceased. Mr Grose states that all reasonable inquiries and searches have failed to locate any will or any grant of probate relating to William. He has made inquiries of the known descendants of William and searched the relevant and available internet sites and records and has been unable to locate a will of the late William Anderson Champion. Based on his inquiries, Mr Grose believes that it is reasonable to assume that William died intestate survived by the five children referred to above and that his share of his mother’s estate should be equally divided among the estates of the five children. Mr Grose deposes to the fact that he has sufficient information and documentation to identify the current eligible next of kin and their eligible beneficiaries for distribution should it be assumed William Anderson Champion died intestate.

42    Mr Grose prepared a family tree for William. He states that of the grandchildren, two remain alive and they are Robin Gwendoline Pope and Rowena Ida Mason. They are both elderly and do not wish to undertake the responsibility as acting as family representative. Two great-grandchildren, Virginia Kay Pinel and Thea Murdene Vennell, have been assisting Mr Grose and the Deputy Curator and have agreed to act jointly as representatives of the William Anderson family group.

43    The orders sought in relation to William are the appointment of Virginia Kay Sherriff and Thea Murdene Vennell as administrators of his estate limited to the administration and distribution of his share of the estate of the male deceased (or the female deceased as the case may be) and a Benjamin order.

44    In the case of William Anderson Champion, there is no question of a succeeding executor. No will of William Anderson Champion has been discovered. Based on the evidence of Mr Grose, I consider it appropriate that Virginia Kay Sherriff and Thea Murdene Vennell be appointed as administrators of the estate of William limited in the manner sought.

45    The Deputy Curator also seeks an order to the effect that she is justified in distributing the share of William Anderson Champion deceased on the presumption he died intestate, such an order being 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 are entitled to share in the estate by will or otherwise. I refer to my discussion of Benjamin orders in Deputy Curator of Deceased Estates, in the matter of Quintal [2023] NFSC 4.

46    I accept the Deputy Curator’s submission that further inquiries and searches are unlikely to locate any will for William Anderson Champion nor any further presently entitled descendants or next of kin and that it is convenient, expeditious and practical to proceed on the basis that he died intestate.

3.    Isabella May Dillon (nee Champion) (Isabella)

47    Isabella died in Auckland, New Zealand on 13 January 1964. Her husband predeceased her. She was survived by five children, being Marsden Dillon, Neville Edwin Dillon, Eulene Eliza Brown (nee Dillon), Mervyn Leslie Dillon and Olive Trevera Burns (nee Dillon). Isabella left a will. Her sons, Marsden Dillon and Mervyn Leslie Dillon, were nominated as executors and her estate was left equally to her five children. The will was dated 12 August 1957 and probate of the will was granted on 5 March 1964. The residuary beneficiaries under her will were her five surviving children.

48    Mervyn Leslie Dillon died on 25 March 1979. Marsden Dillon died on 16 March 2003. Lilian Dora Dillon, on the death of the last surviving executor, Marsden Dillon, and on the grant of probate, became the succeeding executor of Isabella’s estate. She died on 25 July 2003 and probate was granted in her estate to her son, Miles Selwyn Dillon, and her solicitor, Anthony Clive Sandlant. Mr Grose asserts that Miles Selwyn Dillon would now be a succeeding executor under Isabella’s will and has consented and agreed to act in that capacity and distribute her share of her parents’ estates to the descendants of Isabella.

49    Mr Grose states that Miles Selwyn Dillion he has been most helpful and has an extensive knowledge of the Champion family. Mr Grose states that the Deputy Curator seeks confirmation that Isabella’s share of her mother’s estate should be distributed pursuant to her will and that Miles Selwyn Dillon is the succeeding executor in her estate. Mr Grose states that he has sufficient information and documentation to identify the eligible presently entitled beneficiaries with the assistance of Miles Selwyn Dillon.

50    The only order sought in relation to Isabella’s estate is that Miles Selwyn Dillon is the succeeding executor under the estate of Isabella May Champion deceased. That is an appropriate order. There is no evidence as to the position and circumstances of the other executor, Mr Sandlant, but it does not appear to me that there is any reason he needs to be involved.

4.    Malcolm Eadie Champion (Malcom)

51    Malcolm died in Auckland, New Zealand, on 26 July 1939. Mr Grose has conducted searches on the relevant internet sites, but he has been unable to locate any will or probate for Malcolm. Malcolm was survived by his wife, Rose Ethel Champion, and a daughter, Edna Ruth Winifred Matson Champion.

52    On 19 December 1951, Rose Ethel Champion emigrated to Sydney to live with her daughter, Edna Brooks (nee Champion). Rose Champion died on 20 January 1953. Edna Ruth Brooks (nee Champion) died in Sydney on 9 January 1966. She was survived by a daughter, Lola Brooks, and Lola died in Sydney on 15 August 1985. Lola left a will dated 12 February 1985 and probate of that will was granted on 5 March 1986. The residuary beneficiary of that will was Richard Meikle. He is the only surviving descendant of Malcom Eadie Champion and is entitled to Malcolm’s share in the estate. He has agreed to act as the representative of the Malcolm Champion family and is the only known interested party. Mr Grose holds the belief that further inquiries and searches will not locate a will or probate for Malcolm and seeks an order that the estate be distributed on the basis that he died intestate and the only present eligible beneficiary is Richard Meikle.

53    There are two orders sought in relation to Malcolm’s estate. First, an order is sought that Richard Meikle be appointed administrator of his estate limited to the administration and distribution of his share of the estate of the male deceased (or the female deceased as the case may be) and a Benjamin order.

54    There is no issue here about a succeeding executor.

55    It is appropriate that these orders be made. On the evidence, it is appropriate to proceed on the basis that Malcolm died intestate.

5.    Alice Augusta Rendell (nee Champion) (Alice)

56    Alice died on 27 September 1965. She executed a will on 13 October 1959 and there was a grant of probate in respect of that will on 26 October 1965. Alice was survived by her husband, Frank Lambert Rendell, and she left her residuary estate to him. She appointed her husband and her son, Owen Stanmer Rendell, her executors. Frank Lambert Rendell died on 4 August 1970 and Owen Stanmer Rendell died on 30 May 1980. Owen Stanmer Rendell was the last surviving executor of Alice’s will. His executors were his son, Geoffrey Court Rendell, and Henry Bruce Johnson, who would now be the succeeding executors under Alice’s will. Alice’s share of the estate of William Nihill Champion would form part of the residue of her estate which, under clause 4 of her will, was bequeathed to her husband, Frank Lambert Rendell, and would form the residue of his estate. Frank Lambert Rendell’s will is dated 16 December 1969 and probate of the will was granted on 1 September 1970. In clause 4 of his will he divided the residual of the estate into 40 equal parts and left those parts in various shares to various close relatives.

57    Geoffrey Court Rendell, who is the succeeding executor under the will of Alice Rendell (nee Champion) is prepared to act as executor under that capacity and with Mark Chester Rendell as representatives of the Alice Rendell family group. Both are agreeable to distribute Alice’s share of the estate in accordance with the will of Frank Lambert Rendell.

58    As a result of Mr Grose’s investigations and assistance from both Geoffrey Court Rendell and Mark Chester Rendell, he is confident he will be able to identify and distribute Alice Champion’s share of her mother’s estate to the present day eligible family descendants of those beneficiaries.

59    The only order sought in relation to Alice’s estate is an order recognising Geoffrey Court Rendell as the succeeding executor. That is an appropriate order. There is no evidence as to the position and circumstances of the other executor, Mr Johnson, but again, as with Mr Sandlant, it does not appear to me that there is any reason he needs to be involved.

The general orders for distribution: Estate of William Nihill Champion (orders 1 and 9); Estate of Sara Clara Champion (orders 2 and 10)

60    Having regard to the whole of the evidence and for the reasons already given, these orders should be made.

Conclusion

61    Before making orders, I will give the Deputy Curator the opportunity to check that the orders advanced accord with the conclusions set out in these reasons.

Associate:    

Dated:    9 November 2023