An order sought to distribute the estate as if the beneficiary is dead.

Rein J said in Warwick John Nelson, Re the Estate of the late Kevin Stack [2011] NSWSC 764 at 3:

An order of the kind sought known as a Benjamin order is so styled after the case of In re Benjamin; Neville v Benjamin [1902] 1 Ch 723, a decision of Joyce J. In that case, the administrator did not know whether a beneficiary had perished, and, if so, whether he had done so before the testator. Joyce J held that the beneficiary should be presumed to be dead, and, there having been no claim by any executor of the estate of the beneficiary, that the administrator could proceed on the basis that the beneficiary had not survived the testator.

A number of court decisions can be citied here to assist in answering this question. Slattery J said in Alan Yazbek v Ghosn Yazbek & Anor [2012] NSWSC 594 at 99 and 101:

99. In Costa v The Public Trustee of NSW [2008] NSWCA 223, the Court of Appeal considered whether the deceased intended a suicide note to constitute his will. The Court of Appeal concluded that the deceased did intend the suicide note to be his will. Hodgson JA gave weight to the making of the document on a solemn unique occasion, that the document was a last message to his parents and that the intended recipients of the document were apparently close to the deceased: at [27].

101. … in Public Trustee v Alexander – Estate of Alexander [2008] NSWSC 1272 the issue was whether a suicide note should be characterised as the deceased’s will. White J there balanced several factors leading to the conclusion that the deceased was expressing testamentary intentions and that the deceased intended the document to be operative as his will. The Court found the use of dispositive language – “All my belongings I give to you” (at [22]), that the deceased had the belief that he was leaving his mother with property (at [22]), that the document was prepared on a solemn occasion (at [22]), that the deceased took steps to ensure that the document would be brought to the attention of other people (at [22]), that the letters set out the arrangements the deceased hoped would wrap up his legal affairs (at [22]) and that the deceased stated his wishes in relation to the disposal of his body were consistent with the intention that the document operate as his will: at [22]. Against these considerations, White J weighed the fact that the document was unsigned, that the deceased did not refer to the purported will as a “will” in the note the deceased left referring to the letters, including the purported will and that the bulk of the letter is a narrative dealing with matters other than the disposition of his property after death: at [23]-[24]. But White J noted that merely because a document should be characterised as a suicide note does not mean that it cannot also be characterised as the deceased’s intended will: at [25].

The answer to this question turns on the interpretation of the document in question.

In NSW Trustee and Guardian v Pittman – Estate of Koltai [2010] NSWSC 501 White J considered whether an undated document constituted the will of the deceased … White J found that the use of the words “of sound mind” indicated that deceased intended to make a testamentary instrument: at [33]. But several other factors outweighed that conclusion. White J found that the statement that the deceased’s mother or brother should pay her debts was more consistent with the document being an expression of her wishes as to how her family should act after death rather than being intended to be a will (at [34]): Alan Yazbek v Ghosn Yazbek & Anor [2012] NSWSC 594 Slattery J at 100.

Handely AJA in Delaforce v Simpson-Cook [2010] NSWCA 84 said:

31. Although a will is revocable until death or loss of testamentary capacity, equity enforces a contract not to revoke a will, or to leave property by will, not by restraining or nullifying an inconsistent will, but by fastening a trust on the estate to give effect to the contract: Birmingham v Renfrew [1937] HCA 52, 57 CLR 661, 683. A contract to leave an identified property by will is specifically enforceable against volunteers who claim under a disposition by the promisor in his lifetime: Synge v Synge [1894] 1 QB 466 CA, 470-1, but is subject to the claims of creditors if the estate is insolvent: Schaefer v Schuhmann [1972] AC 572, 586, but compare (1972) 88 LQR at 321-2.

32. A contract not to revoke a will is subject to contingencies. Revocation by operation of law on remarriage is not a breach: Re Marsland [1939] Ch 820 CA. The promisee must survive the promisor to avoid lapse: Re Brookman’s Trust (1869) LR 5 Ch Ap 182; and a contract for a share of residue is subject to the claims of creditors: Jervis v Wolferstan (1874) LR 18 Eq 18, 24; Schaefer v Schuhmann (above) at 586, but compare (1972) 88 LQR AT 321-2.

33. A contract to leave property by will is subject to lapse if the promisee pre-deceases the promisor, but will not be affected by his marriage. The contract will be defeated by a disposition in the promisor’s lifetime to a purchaser for value without notice: Schaefer v Schuhmann (above) at 586.

34. A contract not to revoke a will, or to leave specific property by will could be defeated, if there were eligible dependants, by an order for provision under the Family Provision Act 1982: Barns v Barns [2003] HCA 9, 214 CLR 169, or the designation of the property as notional estate under ss 22(4)(f) and 23(b)(iii) of that Act (since 2008 under corresponding provisions in the Succession Act 2006). If the promisor marries, and his marriage ends in divorce, the Family Court could order a transfer of the subject property to the wife and defeat any contract by the husband to leave it to someone else in his will.

Yes, a will is always revocable even if there is a binding Contract not to revoke the will. However such a revocation may give rise to damages or equitable remedies. In other words a person left out of the last will but included in the will that was not to be revoked my claim against the estate for the wrongful revocation. However he or she cannot stop probate being granted of the last will.

This doctrine operates where one party to a mutual wills agreement dies leaving his or her will unrevoked, relying on the other party to observe the terms of the agreement; equity will treat the agreement as irrevocable and will not permit the surviving party to deal with the assets of the estate in a way that is contrary to the agreement. It is, therefore, necessary for an interested beneficiary under a mutual wills agreement, to prove that an agreement to make mutual wills was in fact made by the testators, including an agreement not to revoke their wills. While there is no requirement for a formal or written contract, equity requires an agreement to execute, and not to revoke, mutual wills. The agreement not to revoke may be express or implied by the terms of the agreement, or implied from circumstances surrounding the making of the wills. It has been held that the mere making of the wills simultaneously and the similarity of their terms are not enough taken by themselves to establish the necessary agreement; however, when examining the whole of the circumstances surrounding the agreement, considerable weight must be given to the fact that the parties have executed mutual or corresponding wills, such that a contract not to revoke may be implied.

His Honour White J. on the 22 February 2011 in the case of Palagiano v Mankarios made the following comments about that issue:

12. In cross-examination Tony was asked why he left school and said that he was forced to do so by his father so that he would bring a wage home. I accept that evidence.

13. I also accept that from time to time the deceased told his children, including Tony, that they would all inherit the family home and that it was to the advantage of them all that the children’s wages be used to help purchase the home. I think it very likely that Tony’s wages were added to those of his father and mother to meet the family’s living expenses, and either directly or indirectly to assist his parents in saving enough money to be able to afford to buy the house. Similarly, I think it likely that his wages, along with the wages of his father, mother and Joseph (after Joseph started working), were pooled to meet the family’s expenses and to pay off the mortgage over the Hillsdale property. It is not possible to be more definite. There is no corroboration of the wages earned by Tony or Joseph at the time. There is no evidence as to what were the wages of Mr and Mrs Palagiano. Nonetheless, the fact that the family was able to purchase the house in Hillsdale seven years after they arrived in Australia and pay off the mortgage on the house after a further two years suggests frugal living and a strong ethic of saving all available money.

14. However, I do not accept that any of the witnesses have any recollection of any particular conversation in which their father spoke of all of the children one day benefiting by sharing the house equally. I accept the evidence of Joseph and Tony that something along those lines was said more than once. But the context in which statements to that effect were made, and any qualifications are unknown and unknowable. The representations alleged by Tony and Joseph are said to have been made up to 40 years ago. As McLelland CJ in Eq said in Watson v Foxman (1995) 49 NSWLR 315 (at 319):

Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.