NZ Law Society LawPoints 27 May 2021
By Dr Fran Tyler
Just placing an advertisement in a newspaper to locate missing beneficiaries of deceased estates may no longer be considered taking “reasonable measures”, following a recent decision by Chief High Court Judge Justice Susan Thomas.
Justice Thomas was asked to rule on an application from Ian Hodgson, administrator in his father Thomas Hodgson’s estate, seeking a declaration that the remaining $320,000 from the estate could be distributed.
Thomas Hodgson died in June 2019 and in his will left his estate to be divided among his three children, Ian, Kevin and their sister Vanessa Hodgson. Unfortunately, none of the family had heard from Kevin Hodgson for more than 20 years and, although they believed he was in Australia, no one had any contact details for him.
A family friend said they had seen Kevin Hodgson in Melbourne in 1999, and, according to affidavits filed in support of the application by both Ian and Vanessa Hodgson, the family had tried unsuccessfully to locate him through the Salvation Army and New Zealand Police. The application also stated that they had searched death registers in New Zealand and Australia, but provided no affidavit evidence to support this.
Ian Hodgson also placed advertisements in the New Zealand Herald and the Melbourne Sun Herald, but no responses were received.
To us, this is a familiar story – especially when the person being sought has cut ties with their family. This happens surprisingly often, and frequently one family member believes that someone else has kept in touch, that is until someone dies.
When the family and the law firms have exhausted all avenues to find the missing beneficiary, we at Genealogy Investigations often get called in. Conducting such a search is not easy, especially when the person has moved overseas, and in particular to Australia. It can be difficult to get any information from Australian authorities due to their strict privacy laws, so it often takes some really clever out of the box thinking to find someone.
It is also really important to document the steps taken in searching for beneficiaries in the event that the person cannot be located and it is necessary to prove that “reasonable measures” have been taken to locate them, as set out in s136(2) of the Trusts Act 2019.
A number of lawyers have been concerned for some time that placing advertisements in newspapers might not be seen as satisfying the “reasonable measures” requirement, which is evidenced by how busy we have been.
Justice Thomas, in her decision published on May 10, questioned the likelihood a potential beneficiary noticing a newspaper advertisement in the current age of social media. She pointed to the need to search social media, which she says would arguably have a far greater likelihood of locating the beneficiary, and also employing professionals if needed.
ABOUT THE AUTHORSDr Fran Tyler PhD is a director of Genealogy Investigations and a lecturer in media law at Massey University.