PUBLIC TRUSTEE -v- ROGERS [2026] WASC 235

[2026] WASC 235 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : PUBLIC TRUSTEE -v- ROGERS [2026] WASC 235 CORAM : MASTER RUSSELL HEARD : 9 JUNE 2026 DELIVERED : 9 JUNE 2026 PUBLISHED : 10 JUNE 2026 FILE NO/S : CIV 1892 of 2025 BETWEEN : THE PUBLIC TRUSTEE as administrator of the estate of PATRICK JOHN ROGERS also known as PAUL JOHN PATRICK ROGERS Plaintiff AND KATHLEEN MAY ROGERS First Defendant THE FATHER OF PATRICK JOHN ROGERS PERSONS UNKNOWN Second Defendant LEONARD GEORGE ROGERS Third Defendant WILLIAM JOHN ROGERS Fourth Defendant SUSAN GRACE ROGERS Fifth Defendant CAROLE PATRICIA ROGERS Sixth Defendant -- 1 of 13 -- [2026] WASC 235 Page 2 HAZEL JEAN ROGERS Seventh Defendant GRAHAM EDWARD ROGERS Eighth Defendant MARK RONALD ROGERS Ninth Defendant MARTIN ROBERT ROGERS Tenth Defendant JOHN CALVERLEY Eleventh Defendant STEPHEN CALVERLEY Twelfth Defendant ANDREW CALVERLEY Thirteenth Defendant PAUL CALVERLEY Fourteenth Defendant Catchwords: Administration of estates - Missing beneficiaries - Application for orders permitting administrator to distribute estate to remaining beneficiaries - Benjamin orders - Trustees Act 1962 (WA) s 66 - Turns on own facts Legislation: Trustees Act 1962 (WA) s 66, s 66(5), s 66(7), s 108 Result: Application granted Declarations given and orders made pursuant to Trustees Act 1962 (WA) s 66(5), s 108 -- 2 of 13 -- [2026] WASC 235 Page 3 Category: B Representation: Counsel: Plaintiff : D Van Kempen First Defendant : No appearance Second Defendant : No appearance Third Defendant : No appearance Fourth Defendant : No appearance Fifth Defendant : No appearance Sixth Defendant : No appearance Seventh Defendant : No appearance Eighth Defendant : No appearance Ninth Defendant : No appearance Tenth Defendant : No appearance Eleventh Defendant : No appearance Twelfth Defendant : No appearance Thirteenth Defendant : No appearance Fourteenth Defendant : No appearance Solicitors: Plaintiff : Public Trustee First Defendant : No appearance Second Defendant : No appearance Third Defendant : In person Fourth Defendant : In person Fifth Defendant : In person Sixth Defendant : In person Seventh Defendant : In person Eighth Defendant : In person Ninth Defendant : In person Tenth Defendant : In person Eleventh Defendant : In person Twelfth Defendant : In person Thirteenth Defendant : In person Fourteenth Defendant : In person -- 3 of 13 -- [2026] WASC 235 Page 4 Cases referred to in decision(s): Bickford v Benson [2015] WASC 161 David Enzo Giovanetti as administrator of the estate of Mark Enrico Giovanetti v Giovanetti [2023] WASC 201 Nolan v Nolan [2011] WASC 224 Nordeck v NSW Trustee and Guardian [No 2] [2026] WASC 217 Re Application by Little (Estate of Bruce Frederick Little) [2023] NSWSC 402 Re Application for Grant of Presumption of Death; Ex parte Jenkins [2008] WASC 49 Re Application of New South Wales Trustee and Guardian [2014] NSWSC 1857 Re Benjamin; Neville v Benjamin [1902] 1 Ch 723 Re Green's Will Trusts; Fitzgerald-Hart v The Attorney General [1985] 3 All ER 455 -- 4 of 13 -- [2026] WASC 235 MASTER RUSSELL Page 5 MASTER RUSSELL: Overview 1 This proceeding concerns the estate of the late Patrick John Rogers, also known as Paul John Patrick Rogers (Estate), who died without leaving a will on 23 December 2018. 2 The Public Trustee commenced this proceeding in its capacity as administrator of the Estate (Administrator) by originating summons filed on 8 August 2025, amended on 24 October 2025, and further amended on 3 December 2025 (Application). The Administrator seeks orders pursuant to s 66(5) of the Trustees Act 1962 (WA) in relation to the distribution of the Estate. 3 With no disrespect to the parties and others I refer to in these reasons, as many of them share the same surname, when referring to them individually, once identified, I will refer to them by their first name. 4 The deceased never married and had no de facto spouse or children at the time of his death. 5 The first defendant, Kathleen May Rogers, born on 16 July 1925, is recorded on the deceased's birth certificate as his mother. It is unknown whether she is still living. She would be 100 years of age if she is alive. 6 The deceased's father is not recorded on the deceased's birth certificate, and his name and identity has not been able to be conclusively ascertained. The father of Patrick John Rogers as persons unknown has been included as the second defendant in the proceeding. 7 The Administrator engaged Macbeth Genealogical Services (MGS) to ascertain the deceased's family tree and to conduct enquiries for the purpose of identifying beneficiaries of the Estate - those entitled in distribution under s 14 of the Administration Act 1903 (WA). Details of those enquiries are set out in and attached to the affidavit of Shaun William Conlin, sworn on 8 August 2025 and filed on 25 August 2025 (Conlin Affidavit). 8 Based on MGS' enquiries, Kathleen was the second eldest of seven children. Five of her six siblings are deceased. Her youngest brother, Leonard George Rogers, who is now aged 87 years, is living and is the third defendant. -- 5 of 13 -- [2026] WASC 235 MASTER RUSSELL Page 6 9 Kathleen's deceased siblings had a combined total of 11 children, who are the first cousins of the deceased and the remaining defendants. They are: (a) William John Rogers (fourth defendant); (b) Susan Grace Rogers (fifth defendant); (c) Carole Patricia Rogers (sixth defendant); (d) Hazel Jean Rogers (seventh defendant); (e) Graham Edward Rogers (eighth defendant); (f) Mark Ronald Rogers (ninth defendant); (g) Martin Robert Rogers (tenth defendant); (h) John Calverley (eleventh defendant); (i) Stephen Calverley (twelfth defendant); (j) Andrew Calverley (thirteenth defendant); and (k) Paul Calverley (fourteenth defendant). 10 Each of the third to fourteenth defendants have been served with the Application and are on notice of the hearing. They have each filed a notice of intention to abide and have otherwise taken no part in the proceedings. 11 Steps have been taken to notify the first and second defendants of the Application by way of newspaper advertisements, as I will outline in further detail later in these reasons. 12 I heard the Application on 9 June 2026. I was satisfied that it was appropriate to make declarations and orders substantially in the terms sought by the plaintiff and granted the Application. I said I would publish reasons for my decision. These are those reasons. Materials relied upon 13 In support of the Application, the Administrator relied on an outline of submissions filed on 26 March 2026, the Conlin Affidavit and affidavits of: -- 6 of 13 -- [2026] WASC 235 MASTER RUSSELL Page 7 (a) Geoffrey James Cummins, sworn and filed on 13 February 2026 (Cummins Affidavit); and (b) Sarah Evelyn Marmara, affirmed and filed on 25 May 2026 (Marmara Affidavit). Relevant background 14 The following relevant factual background is derived from the uncontested affidavits filed in support of the Application, as helpfully summarised in the plaintiff's written and oral submissions. 15 The deceased was born on 18 September 1942 in Paddington, England and died at the age of 76 years on 23 December 2018 in Claremont, Western Australia.1 16 The deceased died without leaving a will, and the Public Trustee obtained a grant of letters of administration of the Estate on 23 July 2019.2 17 In about April 2019, the Public Trustee engaged MGS to conduct enquiries to ascertain the deceased's family tree to identify potential beneficiaries of the Estate. The following information is based on those enquiries. 18 The deceased's death certificate, as annexed to the Conlin Affidavit, does not list any spouse, de facto partner, children or siblings of the deceased.3 Stephen Rando, landlord and friend of the deceased, reported to MGS on 12 June 2019 that, at the time the deceased died, he was not married and did not have a de facto partner.4 19 Kathleen is the deceased's mother. She was born on 16 July 1925, and it is not known whether she is still living.5 20 The deceased's father is not included on his birth certificate. The identity of the deceased's father is believed by some of the deceased's cousins to be a man named Patrick Riordan. However, that paternity has not been confirmed. It is believed that, if he is still living, Patrick Riordan would be about 107 years old. This is on the basis that 1 Conlin Affidavit [3] - [4], 'SWC-1', 'SWC-2'. 2 Conlin Affidavit [5], 'SWC-3'. 3 Conlin Affidavit [4], 'SWC-2'. 4 Conlin Affidavit, 'SWC-7', page 91. 5 Conlin Affidavit [6(a)], [6(b)], 'SWC-4', 'SWC-5'. -- 7 of 13 -- [2026] WASC 235 MASTER RUSSELL Page 8 he is recorded as having married Kathleen in England in 1942 when he was 23 years old and Kathleen was 17 years old.6 21 Kathleen had six siblings, namely:7 (a) David John Rogers, born on 15 February 1924, who died on 22 April 2006; (b) Violet Rogers, born on 30 May 1929, who died on 17 June 1929; (c) Edward Henry Rogers, born on 5 June 1931, who died on 28 September 2005; (d) Ronald Frank Rogers, born on 4 April 1933, who died on 1 November 2015; (e) Elsie Margaret Rogers, born on 6 March 1935, who died on 10 September 2001; and (f) Leonard, the third defendant, born on 9 February 1939. 22 Kathleen's only surviving sibling, Leonard, informed an officer of MGS in conversations on 2 July 2020 and 2 November 2020 that Kathleen is deceased, but he was not sure when or where she had died. In a later conversation, on 21 March 2022, Leonard said that he was unsure if Kathleen was dead. He reported that he last saw her when he was 17 years old (1956), when she visited his home with a man called Bert Shelley, who he thinks she lived with at that time in Sheerness, Kent in the United Kingdom. He was not sure whether they were married. Leonard said he last heard of Kathleen when his brother, Ronald saw her in Shepherd's Bush, which Leonard initially said was 10 to 15 years ago (2005 - 2010), but in a later conversation said it could have been up to 50 years ago (1970s).8 23 Kathleen's six siblings had a combined total of 11 children, being the fourth to fourteenth defendants,9 the deceased's first cousins. 24 The Administrator provided each of the fourth to fourteenth defendants with a 'Next of Kin' information document to ascertain whether they had any information about the deceased's family, 6 Conlin Affidavit [6(c)], 'SWC-6'. 7 Conlin Affidavit [6(d)]. 8 See Conlin Affidavit [6(e)], 'SWC-5'. 9 Conlin Affidavit [6(f)]. -- 8 of 13 -- [2026] WASC 235 MASTER RUSSELL Page 9 including Kathleen. All of them responded except for one. The responses generally provide that they and their families did not know Kathleen or her whereabouts. One said that his father lost contact with her over 50 years ago, another said they did not have any information other than that she became ill at some point, and another said that their father and uncles had tried to trace Kathleen unsuccessfully.10 25 On 25 June 2022, MGS placed a notice in the Daily Telegraph Newspaper (UK) on behalf of the Administrator calling on Kathleen or any children of Kathleen or anyone claiming through them, or any person who knows of their whereabouts to contact MGS or the Administrator within two months of the date of the advertisement.11 A single response was received from Robert Shelley, a relative of Alfred Bertram Shelley, a former partner of Kathleen's. This is consistent with Leonard's report about Kathleen living with a man named Bert Shelley. An officer of MGS spoke to him by telephone in September 2022, but he did not have any other relevant information about Kathleen, the identity of the deceased's father or potential beneficiaries of the Estate.12 26 Orders were made for substituted service of the Application on the first and second defendants, Kathleen and the deceased's unknown father, by publication of advertisements in the Daily Telegraph Newspaper (UK), including that the accompanying affidavit could be inspected at the offices of the Public Trustee or provided upon request.13 The advertisements were published twice in December 2025. The Administrator did not receive any responses to the publications.14 27 The Marmara Affidavit attaches an updated statement of assets and liabilities of the Estate, as of 25 May 2026, providing that the Administrator holds $708,764.93 to the account of the Estate, made up of assets of $806,578.99 less liabilities of $97,814.06.15 28 Ms Marmara deposes on behalf of the Administrator that, if the orders sought are granted by the court, the Estate will be distributed to Leonard and each of the third to fourteenth defendants pursuant to their 10 Conlin Affidavit [7] - [8], 'SWC-7'. 11 Conlin Affidavit [9], 'SWC-8'. 12 Conlin Affidavit [10] - [11]. 13 Cummins Affidavit [3]. See also Orders of Master Russell made on 25 September 2025 [1] - [3]; Orders of Master Russell made on 13 November 2025 [1] - [4]; Orders of Master Russell made on 4 December 2025 [1] - [4]. 14 See Cummins Affidavit [4] - [14], 'GJC-1' - 'GJC-4'. 15 Marmara Affidavit [3], 'SEM-1'. -- 9 of 13 -- [2026] WASC 235 MASTER RUSSELL Page 10 entitlements under s 14 of the Administration Act. The distribution entitlements of each of the third to fourteenth defendants, by percentage, are set out in attachment 'SEM-2' to the Marmara Affidavit.16 Applicable principles 29 I recently outlined the principles that apply to the exercise of the court's power and discretion under s 66 of the Trustees Act in Nordeck v NSW Trustee and Guardian [No 2]17 which I repeat, for ease of reference, as follows. 30 Section 66 of the Trustees Act applies where property is held by a trustee and the property, or any part of it, cannot be distributed because the trustee does not know whether any person or member of any class of person who is, or may be, entitled in distribution exists, is alive or dead, or cannot be found. It allows for the publication of advertisements by a trustee calling for anyone who may be entitled in distribution to send in a claim, and for directions to be sought and given as to distribution of a share of an unknown or missing beneficiary. 31 Relevantly, s 66(5) of the Trustees Act allows the court, upon proof of the matters stated to make an order that the trustee be at liberty to distribute the property as if the persons specified in the order did not exist or had died before the deceased. Those matters include the inquiries made, the results of the inquiries and advertisements and any claims received. 32 An order of the kind contemplated by s 66(5) of the Trustees Act is known as a Benjamin Order, taking its name from Re Benjamin; Neville v Benjamin.18 33 I refer to and respectfully adopt Acting Master McDonald's summary of the principles applicable to an application for distribution of an estate under s 66 of the Trustees Act, by reference to the authorities referred to, in David Enzo Giovanetti as Administrator of the Estate of Mark Enrico Giovanetti v Giovanetti,19 from which the following principles are derived: 16 Conlin Affidavit [13]; Marmara Affidavit [4], 'SEM-2'. 17 See Nordeck v NSW Trustee and Guardian [No 2] [2026] WASC 217 [10] - [13]. 18 Re Benjamin; Neville v Benjamin [1902] 1 Ch 723. 19 David Enzo Giovanetti as administrator of the estate of Mark Enrico Giovanetti v Giovanetti [2023] WASC 201 (Giovanetti) [11] - [13]. See also Nolan v Nolan [2011] WASC 224 [24] - [34], in which E M Heenan J explains the genesis and history of the court's jurisdiction to make such an order. -- 10 of 13 -- [2026] WASC 235 MASTER RUSSELL Page 11 1. Where a beneficiary cannot be located, evidence that the beneficiary has died is not required to make an order under s 66. The jurisdiction to make an order arises 'on the basis of the practical probabilities of the facts as known to the court at the time of making the order'.20 2. An order under s 66 is not a positive declaration of rights and is made regardless of the fact there may be some uncertainty as to the existence of a beneficiary.21 3. All that is necessary for making an order is that the court is satisfied that it is probable that the beneficiaries 'have been ascertained and that no reasonable further enquiries could be made which would improve the state of the evidence'.22 4. The size of the estate may be a relevant factor in determining the reasonableness of any further enquiries.23 5. The effect of an order under s 66 is to relieve an administrator from liability in the event that the basis on which the estate is distributed turns out to be wrong, not to extinguish any right of a missing beneficiary who is later found.24 Determination 34 As referred to, the amount available for distribution between the third to fourteenth defendants, as of 25 May 2026, is $708,764.93 less costs incurred by the Estate. 35 I am satisfied on the evidence adduced that the Administrator has conducted extensive enquiries and taken reasonable steps to ascertain those entitled in distribution and to locate Kathleen and the identity of the deceased's father, as outlined. 36 There is nothing to indicate that Kathleen had any children other than the deceased and it is unlikely that Kathleen is still alive. While 20 Giovanetti [11], citing Bickford v Benson [2015] WASC 161 (Bickford) [13] (Jenkins J); Re Green's Will Trusts; Fitzgerald-Hart v The Attorney General [1985] 3 All ER 455 [462] - [463]; Re Application for Grant of Presumption of Death; Ex parte Jenkins [2008] WASC 49 [22]. 21 Giovanetti [11], citing Bickford [14]; Re Application of New South Wales Trustee and Guardian [2014] NSWSC 1857 [4], [6]. 22 Giovanetti [13], citing Re Application by Little (Estate of Bruce Frederick Little) [2023] NSWSC 402 (Re Application by Little) [35]. 23 Giovanetti [13], citing Re Application by Little [34]. 24 Giovanetti [12], referring to Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (21st ed, 2018, Sweet & Maxwell) [65-18]. -- 11 of 13 -- [2026] WASC 235 MASTER RUSSELL Page 12 there is information suggesting that Patrick Riordan may be Patrick's father, that paternity is unconfirmed and, as the deceased was cremated, it is unlikely any further steps could be taken. In any event, if Patrick Riordan is the deceased's father, the practical probability on the available evidence is that he is also deceased. 37 The enquiries and steps taken to locate the deceased's parents and put them or anyone claiming through them on notice of the Application are, in my view, appropriate. Although, as acknowledged by the Administrator, the advertisement published on 25 June 2022 did not strictly comply with s 66(1) of the Trustees Act, the court has a discretion under s 66(7) to make any order notwithstanding there has not been strict compliance in relation to the advertising requirements. 38 I accept that the 2022 advertisement, together with the advertisements published in December 2025, make clear that the Administrator is seeking orders to distribute any entitlement of Kathleen or the deceased's father as if they had died before 23 December 2018 and had no biological or adopted children, and as if the deceased's father had no siblings. There has been no response to the advertisements, other than as outlined. I do not consider publication of any further advertisements would produce a different result. 39 Having regard to the size of the Estate and the rights of the remaining beneficiaries, I am satisfied there are no further reasonable steps that would improve the position or the state of the evidence. It is appropriate, in my view, to grant the relief sought under s 66(5) of the Trustees Act and make the declarations and orders sought, substantially in the terms sought in the Application and the minute of proposed orders filed on behalf of the Administrator. 40 I am also satisfied that it is appropriate to make an order pursuant to s 108 of the Trustees Act that the costs of the application be paid from the Estate on a solicitor and client basis. Conclusion and orders 41 For these reasons, I made the following declarations and orders: 1. Pursuant to section 66(5) of the Trustees Act 1962 (WA) (the Act), the plaintiff may distribute the portion of the estate of Patrick John Rogers (also known as Paul John Patrick Rogers) (the Estate) due to the first defendant, Kathleen May Rogers, to the third to fourteenth defendants as if Kathleen May Rogers -- 12 of 13 -- [2026] WASC 235 MASTER RUSSELL Page 13 had died before 23 December 2018 and had no biological or adopted children and as if the second defendant, Persons Unknown, the father of Patrick John Rogers (also known as Paul John Patrick Rogers) (the Deceased's Father) had died before 23 December 2018 and had no biological or adopted children and had no siblings. 2. Pursuant to section 66(5) of the Act, the plaintiff may distribute the portion of the Estate due to the Deceased's Father to the third to fourteenth defendants as if the Deceased's Father had no biological or adopted children and had no siblings and as if the first defendant, Kathleen May Rogers, had died before 23 December 2018 and had no biological or adopted children. 3. Pursuant to section 108 of the Act, the plaintiff's costs of and associated with the Application be paid out of the Estate on a solicitor and client basis. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. SC Associate to Master Russell 10 JUNE 2026 -- 13 of 13 --