The Estate of Arlene Veronica De Leon [2025] NSWSC 529 highlights how global events—especially war—can shape the outcomes of inheritance disputes decades later. This matter concerns a Filipino-Australian family that found itself in court after a sibling’s death following the destruction of records needed to prove a family connection in World War II.
The Family and the Dispute
Arlene Veronica De Leon (the deceased) died intestate in Sydney in January 2024, leaving an estate valued at around $91,000. She had no spouse or children. Surviving her were several siblings, including Grace Pinto (the plaintiff), who brought the application for administration.
One of the deceased’s siblings, Nestor De Leon, died in 2005, leaving four adult children. Everyone in the family agreed Nestor was the deceased’s brother, but no birth certificate or official documentation was submitted to prove this. The likely reason is that Nestor was born in the Philippines in the 1940s, and his records were likely lost during the fierce wartime battles on the Bataan peninsula.
Proving Sibling Status
Section 129(3) of the Succession Act 2006 (NSW) provides that a deceased sibling’s share in an intestate estate passes to their children.
The plaintiff asked the Court to issue a Benjamin order allowing the distribution of an estate on the assumption that a missing or unverified person (like Nestor) is not entitled. A Benjamin Order is a legal declaration sought by an executor to clarify inheritance rights in cases of ambiguity about beneficiaries, notably when a beneficiary is missing. It originates from re Benjamin; Neville v Benjamin [1902], which established that a court could order the redistribution of a deceased estate when a missing beneficiary is presumed dead.
Once issued, it protects the executor from liability when distributing the estate based on the order, even if later facts prove incorrect. But the Court refused. Instead, it carefully examined the available evidence and found enough to confirm that Nestor was the deceased’s sibling.
History, Hearsay, and Statutory Presumptions
Although official records were missing, Slattery J accepted the following submissions:
- Personal testimony: the plaintiff gave detailed, credible evidence about Nestor’s place in the family.
- Death certificate: the deceased’s mother’s NSW death certificate listed Nestor as her eldest child.
- Statutory presumptions: Under the Status of Children Act 1996, parentage can be presumed without documentary proof.
- Hearsay and reputation evidence: Family accounts and public documents support the claim that Nestor belonged to the De Leon family.
Taken together, the Complianceq held that it was more probable than not that Nestor was the biological child of the deceased’s parents, Miguela and Marino De Leon.
No DNA Needed (This Time)
The Court noted that avuncular DNA testing (which can confirm whether someone is the niece or nephew of another) might have been used to establish kinship in a different case. For example, a child of Nestor could be tested against one of the deceased’s known siblings. But in this case, the estate was relatively small, and the quality of the existing evidence meant DNA testing wasn’t necessary.
That said, legal practitioners may increasingly need to turn to genetic testing when traditional forms of evidence—especially in migrant or refugee families—are missing or destroyed.
Decision
Slattery J was satisfied with Nestor’s sibling status, holding that his four children were entitled to inherit his share of the deceased estate. A Benjamin order was unnecessary.
The Court made a range of formal orders, including:
- Declaring Nestor the biological child of the deceased’s parents under the Status of Children Act 1996;
- Noting that Nestor had died before the deceased;
- Distributing the estate as follows:
- Grace Pinto – 20%
- Lilian De Leon Pena – 20%
- Evelyn De Leon Nofuente – 20%
- Ernane Fausto De Leon – 20%
- Jose, James, John, and Jason Tolentino De Leon – 5% each (totalling 20%)
The Court granted the plaintiff letters of administration, waived procedural formalities, and ordered payment of the plaintiff’s legal costs from the estate on an indemnity basis.
A Cautionary Tale
This case powerfully reminds us that war’s legacy can persist unexpectedly. Proving family relationships can be a legal challenge for families with histories shaped by displacement, conflict, or poor record-keeping. However, as this decision shows, courts can and do take a flexible, evidence-based approach to reaching a just outcome.