Australia, June 27 -- New South Wales Land and Environment Court issued text of the following judgement on May 26:

1. The blight of war endures for generations. The issues in this case arise from the destruction of records in the devastating World War II battles in the Bataan peninsula of the Central Luzon Region of the Philippines.

2. Arlene Veronica De Leon ("the deceased") died intestate in Sydney on 13 January 2024, aged 73. She left no spouse or issue, and her parents are both deceased. She was, however, survived by her sister the plaintiff, Grace Fatima Pinto and by three of her other siblings, Lilian De Leon Pena ("Lilian"), Evelyn De Leon Nofuente ("Evelyn"), and Ernane Fausto Del Rosario De Leon ("Ernane"). These siblings are her next of kin.

3. But the family all recognise and accept that they had a fifth sibling, the eldest of the family. He was Nestor Del Rosario De Leon ("Nestor"), who family members believe was born in 1938, just before World War II ravaged the Philippines. Nestor died in January 2005. Yet no birth certificate for Nestor can be found in the Philippines to establish that he too is a child of the same parents. The massive destruction of the battles of Bataan explains its absence.

4. The plaintiff has applied for administration of the deceased's small estate, which consists only of a refundable accommodation bond of $108,000 from an aged care facility.

5. As one of the deceased's next of kin, the plaintiff is entitled to a grant of administration of her estate under Probate and Administration Act 1898 s 63. An applicant for administration of the estate of an intestate must establish that notice of the application has been given to all other living next of kin with an equal right to make a claim for administration of the estate.

6. The plaintiff has done that and is entitled to a grant of administration. Orders for a grant of administration of the estate to the plaintiff were made in chambers on 12 May 2025, following the Court's review of requisitions from the Registry.

7. An issue has arisen about the distribution of the estate. The plaintiff has applied by motion for a Benjamin order, to allow the estate to be distributed by passing over Nestor's entitlement, as the family have no birth records to prove that he is a sibling of the deceased.

8. These reasons dismiss the plaintiff's motion for a Benjamin order and find that the available evidence is sufficient for the Court to declare that Nestor was a sibling of the deceased and that Nestor's equal presumptive share of the deceased's estate with the other siblings, the plaintiff, Lilian, Evelyn and Ernane, can be distributed to Nestor's four children in satisfaction of their entitlements under Succession Act 2005, s 129(3).

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19709efb5e8df03fabfe9503)

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