Family members and relatives are entitled to share in a deceased’s estate if the deceased dies without a will. But what happens if their identity is unknown or they can’t be found?

John Wardell died without a will in June 2020. The 57-year-old’s estate consisted of his residence at Revesby in Sydney’s south-west worth $1.2 mil, a small bank balance and vehicles.

Fruitless effort to identify relatives leads to one sided intestacy and Benjamin orderA blank form headed “This is the last Will and Testament of Me” was found in his home but a search failed to locate any completed will or anything like one.

John’s uncle Peter Clark – the only surviving relative on his mother’s side – undertook dealing with the estate’s affairs.

To have the authority to do that, Peter had to had to establish to the court that there was no one else with a superior right to do so in intestacy.

Fortunately, Peter had known John for the whole of his life and was able to provide a detailed family history.

Revealing all that he knew, Peter applied to the NSW Supreme Court for a Grant to allow him to administer the estate.

He swore that John had never married and had not been in a relationship with anyone leading up to his death. He was also able to tell the court that John had no children and no other surviving siblings or grandparents on his mother’s side.

John’s mother Anne – Peter’s sister – had died in September 2016. Anne had been married twice but had never had any other children.

Peter and Anne’s only other sibling, Colleen, had died in 1982 without being survived by children.

The deceased’s father – whose name did not appear on John’s birth certificate – was however unknown to Peter.

He was aware that when Anne – pregnant with John – travelled to New Zealand, their mother concocted a ruse by telling friends and family she had met and married a fellow only for him to “run off” after the birth leaving Anne to raise the child as a single mother.

Although Peter was of the belief that Anne and their mother knew his identity, that knowledge was never shared with him or even with John himself.

The father had never participated in the child’s upbringing, and Anne had not sought any involvement from him at all.

Peter’s searches revealed a reference – in what he took to be Anne’s diary – to a ‘John’ she had met in April 1962 (the deceased was born in January 1963) and news clippings she had retained referring to “John Waddell”.

Peter tracked down “John Waddell” only to discover he had died in 2011. He also searched for John Burns – another friend of Anne’s from the 1960’s – to find he too had died.

Newspaper advertisements published to locate the man proved futile.

As all efforts failed to uncover the identity of John’s dad, no one else from that side of the family – grandparents, uncles, aunts or cousins – could be identified to take any part of John’s estate.

Peter therefore sought a “Benjamin” order, ie a ruling that the potentially interested absent parties either did not exist or could not be located.

Justice Philip Hallen was satisfied that Peter had made “bona fide” and “determined” attempts to identify and locate the deceased’s father and that the evidence was insufficient to conclude whether either John Burns or John Waddell was the dad.

His honour also held there would be no use in conducting further searches for the man or any of his family as all avenues had been “exhausted”.

He concluded that Peter as the only surviving family member was himself entitled to the whole of the estate and had the right to administer it.

Justice Hallen noted though that distribution of the estate to Peter would always be subject to the rights of the father or any relatives from that side of the family, should they ever materialise.

As unlikely as this may be, it leaves Peter in an unfortunate state of uncertainty.

Had John undertaken the relatively simple and inexpensive step of making a will, all the trouble, expense and uncertainty to which his uncle was put, could have been entirely avoided.

Application by Peter John Clark (Estate of John Andrew Wardell) [2022] NSWSC 798 Hallen J, 16 June 2022 Read case