DAISY MAY PHILLIPS (DECEASED) - [2009] SASC 200

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Estate of DAISY MAY PHILLIPS (DECEASED)
[2009] SASC 200
Judgment of The Honourable Justice Gray
10 July 2009
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - TO WHOM PROBATE GRANTED - EXPRESSLY APPOINTED EXECUTORS - IN GENERAL
SUCCESSION - EXECUTORS AND ADMINISTRATORS - EXECUTOR DE SON TORT
Referral from Registrar of application for grant of probate - deceased appointed one of her sons as executor with appointment conditional on her son being able or willing to accept appointment within 35 days from death of deceased - Executor's oath sworn more than 35 days after death of deceased - whether actions taken within 35-day period demonstrate that the son able and willing to accept appointment of executor - doctrine of executor de son tort considered.
Held: actions of the son taken within 35 days of death of the deceased demonstrate that he was both able and willing to accept an appointment as executor within the 35-day period.
Probate Rules 2004 (SA) r 77, referred to.
Mulray v Ogilvie (1987) 9 NSWLR 1; Nolan v Nolan [2004] VSCA 109; Howling v Kristofferson (unreported, Supreme Court of New South Wales, Cohen J, 14 October 1992), considered.

In the Estate of DAISY MAY PHILLIPS (DECEASED)
[2009] SASC 200
Testamentary Causes Jurisdiction
GRAY J

This is a referral of an application for a grant of probate. The Registrar has referred the application to a Judge of this Court for directions, pursuant to Rule 77 of the Probate Rules 2004 (SA).
Introduction
Daisy May Phillips, the deceased, died on 23 January 2009. On 8 May 1995, the deceased executed a will appointing her son, Malcolm Roger Phillips, as executor. The appointment of Mr Phillips was qualified as follows:
PROVIDED that if my said son MALCOLM ROGER PHILLIPS shall predecease me or shall be unable or unwilling to accept appointment as my executor within a period of thirty five (35) days after the date of my death then but not otherwise I APPOINT my son MAURICE JOHN PHILLIPS
The appointment of Malcolm Phillips as executor is conditional. A conditional appointment is valid.
Mr Phillips is the applicant for probate. He survived the deceased and, on 5 March 2009, swore an executor’s oath in the usual form. This occurred more than 35 days after the death of the deceased. At the time of the swearing of the executor’s oath, Mr Phillips filed at Court an affidavit verifying the statement of assets and liabilities, and an affidavit of plight and condition. The oath and affidavits did not disclose any adequate basis to establish that Mr Phillips was able or willing to accept appointment as the deceased’s executor within the 35-day period after the date of the deceased’s death. The Registrar drew Mr Phillips’ solicitor’s attention to the difficulty arising from the conditional appointment, and requested the solicitors to provide an opinion, together with evidence, to establish Mr Phillips’ entitlement to the grant. No opinion as requested was provided. However, by affidavit dated 7 May 2009, Mr Phillips deposed to acts taken in relation to the deceased’s estate, said to evidence his willingness to accept the office of executor within the 35-day period of the death. It is in these circumstances that the Registrar has referred the application to a Judge of the Court to ascertain whether the condition contained in the appointment of the executor clause has been satisfied.
Shortly following the death of the deceased, Mr Phillips attended the hospital and subsequently paid the fees that had been incurred in the care of the deceased preceding her death. Mr Phillips undertook the responsibility of organising the funeral of the deceased. This took place on 29 January 2009. Mr Phillips contacted the funeral directors and arranged for the collection of the remains of the deceased, entered into a contract with the funeral directors and confirmed his responsibility for the arrangements. He caused death and funeral notices to appear in the relevant newspaper, met with the officiate of the funeral service and paid for the relevant arrangements. Mr Phillips later made an application to the Adelaide Cemetery Authority for the transfer of an interment grant and entered into a contract with Enfield Memorials for additions to a headstone.
On 28 January 2009, Mr Phillips notified Centrelink of the death of the deceased in order to cancel the deceased’s entitlement. On 10 February 2009, Mr Phillips forwarded a letter enclosing a copy of the Death Certificate of the deceased to SGIC Health Insurance, requesting cancellation of the policy in respect of the deceased.
Mr Phillips deposed that on 10 February 2009, he telephoned the office of a solicitor to make an appointment to obtain advice in relation to the further discharge of his duties as executor of the deceased. Mr Phillips attended the solicitor on 13 February 2009. On this occasion, Mr Phillips provided details of the assets in the estate and instructed the solicitor to make the necessary enquiries to confirm the details of the assets of the deceased. Mr Phillips further instructed the solicitor to prepare the necessary documents to enable him to apply for a grant of probate as executor of the will of the deceased. No explanation for the delay in lodging the application outside the 35-day period referred to in the will has been provided.
On referral to this Court, it was suggested that the appropriate test to ascertain whether Mr Phillips willingly accepted the office of executor prior to the expiry of the 35-day period, was whether Mr Phillips’ conduct could be considered as that of an executor de son tort; that is, he had so acted in relation to the estate that he could be compelled to take a grant of probate.
The principle that certain acts amount to an acceptance of the position of executor from which a party cannot resile, was outlined in Bacon’s Abridgment,[1] as adopted by Needham J in Mulray v Ogilvie[2] as follows:
What Acts amount to an Administration, so that the Party cannot afterwards refuse. 1st, That whatever the executor does with relation to the goods and effects of the testator, which shews an intention in him to take upon himself the executorship, will regularly amount to an administration. Secondly, That whatever acts will make a man liable as an executor de son tort, will be deemed an election of the executorship.
Needham J further adopted the following excerpt from Williams, Mortimer and Sunnucks on Executors, Administrators and Probate:[3]
In general any act in relation to the testator's property which indicates an intention in him to take upon himself the executorship will constitute an acceptance of office by the nominated executor, provided such an act is not of so minimal a character as to amount only to technical intermeddling (Holder v Holder [1968] Ch 353, 392). A further test is whether, if not nominated, he would be liable as an executor de son tort.
[1]    Matthew Bacon, A New Abridgment of the Law, Title Executors, (10th ed) at 468.
[2]    Mulray v Ogilvie (1987) 9 NSWLR 1 at 3; see also Nolan v Nolan [2004] VSCA 109 and Howling v Kristofferson (unreported, Supreme Court of New South Wales, Cohen J, 14 October 1992).
[3]    Mulray v Ogilvie (1987) 9 NSWLR 1 at 3; Williams, Mortimer and Sunnucks, Executors, Administrators and Probate (16^th ed, 1982) at 38. There is no substantive change in the text of the more recent edition.
A person who has no authority to act as a personal representative, but who nevertheless performs acts properly belonging to a personal representative, is referred to as an executor de son tort. In such a case, the person is regarded at law as having held himself or herself out as the duly appointed representative and is held liable as if he or she were so appointed. A person acting in such a capacity is said to “intermeddle” in the deceased’s estate.
The approach of the Courts to the principle known as executor de son tort, by analogy, supports Mr Phillips’ application for a grant of probate.
The actions of Mr Phillips in arranging the funeral of the deceased, when viewed in isolation, are not sufficient to confirm a willingness to act as executor.[4] However, the actions with Centrelink and with SGIC Health Insurance do indicate a relevant willingness. More importantly, the actions of Mr Phillips in instructing a solicitor to make necessary enquiries in relation to the assets of the estate, and to prepare the necessary documents to enable an application for a grant of probate to be made, evidence a willing acceptance of the office of executor. These acts all took place within the 35-day period after the death of the deceased. These acts together are of a substantial nature. They are not minimal. In my view, the condition of the appointment has been satisfied.
[4] Mulray v Ogilvie (1987) 9 NSWLR 1.
In my view, Mr Phillips is entitled to seek a grant of probate as the executor named in the will of the deceased, as he was both able and willing to accept an appointment as executor within 35 days of the death of the deceased.