In the Estate of BARRY MATHEWS (DECEASED) - [2011] SASC 227

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of BARRY MATHEWS (DECEASED)
[2011] SASC 227
Judgment of The Honourable Justice Gray
16 December 2011
SUCCESSION - EXECUTORS AND ADMINISTRATORS - PROCEEDINGS AGAINST EXECUTORS AND ADMINISTRATORS
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
Application for an order that the sole instituted executor named in the deceased's will be passed over and that probate be granted to the sole substituted executor - where no one could be located who matched the description of the sole instituted executor - whether the Court has jurisdiction to pass over an executor - if the Court does have such jurisdiction, whether it is appropriate to exercise that jurisdiction in the within proceeding.
Held: Application granted - the Court does have jurisdiction to pass over an executor in limited circumstances - order made passing over the sole instituted executor and granting probate to the sole substituted executor.
Supreme Court Act 1935 (SA) s 18; Probate Rules 2004 (SA) r 77 and r 80; Administration and Probate Act 1919 (SA) s 8; In re Swale [1940] SASR 391, referred to.
In the Estate of Crane (2005) 93 SASR 198; In re Kuhl; Kuhl v Liebcheschel [1933] SASR 394; In the Estate of Smith, Deceased (1972) 2 SASR 477; In the Estate of Shephard, Deceased (1982) 29 SASR 247; In the Estate of Shephard, Deceased (1982) 30 SASR 1; In the Goods of Sawtell (deceased) (1862) 2 Sw & Tr 448, considered.

In the Estate of BARRY MATHEWS (DECEASED)
[2011] SASC 227
Testamentary Causes Jurisdiction
GRAY J:

This is an application by summons for an order that Heather Manfield, the sole instituted executor named in the last will of Barry Mathews, the deceased, be passed over. The application also seeks an order that a grant of probate be made to John Davidson.
The Facts
The deceased died on 25 June 2010. The deceased’s estate comprised real property at Iron Knob in South Australia, valued by the Valuer-General at $49,500.00 as well as cash assets valued at $2,066.49. The liabilities in the deceased’s estate totalled $5,955.86.
Following the deceased’s death, Mr Davidson located an original will that had been executed by the deceased on 13 January 2002. It was prepared using a will kit. The will names Heather Manfield as the sole instituted executor and Mr Davidson as the sole substituted executor. The will relevantly provides:
2 Appointment of a Personal Representative (Executor/Executrix):
I appoint My Cousin Heather Manfield Personal Representative hereunder and if he/she shall not act for any reason, then I appoint as alternate Personal Representative John Davidson of Leigh Creek to act hereunder.
[Emboldened words are handwritten.]
Mr Davidson then searched the deceased’s papers and made inquiries in the deceased’s local community for details of the whereabouts of Heather Manfield. Mr Davidson deposed that he could not locate her. Mr Davidson subsequently instructed Scott Andrew Herriman of Hume Taylor & Co to conduct searches for the whereabouts of Heather Manfield.
Hume Taylor & Co conducted searches on South Australia Property Assist. Those searches revealed that no one with the name “Heather Manfield” was listed as a registered proprietor of real estate in South Australia. Hume Taylor & Co also conducted a search of the electoral roll, searching for the name of Heather Manfield in Australia. The search revealed “Heather Joy Manfield” who resided in Novar Gardens in South Australia.
On 8 November 2010, Hume Taylor & Co wrote to Heather Joy Manfield asking her to make contact to indicate whether she was the deceased’s cousin and thus the person named in the deceased’s will. On 11 November 2010, Heather Joy Manfield called Mr Herriman and informed him that she was not a cousin of the deceased and therefore not the person named in the deceased’s will. Heather Joy Manfield also informed Mr Herriman that she was unaware of anyone else residing in South Australia with the name “Heather Manfield”.
On 30 November 2010, Hume Taylor & Co wrote to the South Australian Births, Deaths and Marriages Registration Office requesting a registry search for records of death of a person named Heather Manfield within the last 10 years. There was no record matching those criteria held in the register of deaths from 3 December 2000 to 3 December 2010.
The will kit booklet accompanying the deceased’s will provides the following details about Heather Manfield:
PERSONAL REPRESENTATIVE
Name        HEATHER MANFIELD
Address      Roadside Delivery
Penola      Postcode     Phone (   )
[Emboldened words are handwritten.]
On 13 April 2011, Mr Herriman wrote to the Penola Post Office inquiring whether it had any details of the whereabouts of Heather Manfield and enclosing a letter to be delivered to Heather Manfield if her whereabouts was known. A manager of the Penola Post Office returned to Mr Herriman the letter that had been enclosed by him. It contained the following handwritten endorsement:
Unfortunately I haven’t been able to find out any information about a Heather Manfield being in this area
Bev Banks
Manager
Penola LPO [Signature]
On 15 June 2011, Mr Herriman wrote to the two persons who witnessed the deceased’s will. The witnesses each subsequently visited Mr Herriman’s office. Neither had knowledge of the existence nor location of Heather Manfield. One of the witnesses had conducted searches himself to locate her, but they were unsuccessful.
The investigations to find Heather Manfield also included a search of the White Pages and an advertisement placed in The Advertiser newspaper. Mr Davidson deposed that he has not been able to locate Heather Manfield. He believes that Heather Manfield, the sole instituted executor, is missing and is therefore unable to take up the administration of the estate.
In the present proceeding, the summons was brought pursuant to section 18 of the Supreme Court Act 1935 (SA)[1] and rule 80 of the Probate Rules 2004 (SA). The Registrar of Probates referred the application to me for consideration pursuant to rule 77 of the Probate Rules and section 8 of the Administration and Probate Act 1919 (SA).
[1] Section 18 of the Supreme Court Act 1935 (SA) is in the following terms:
The court shall, in relation to probates and letters of administration, have the following jurisdiction, that is to say:
(a)The like voluntary and contentious jurisdiction and authority in and for the State in relation to the granting or revoking of probate of wills, and administration of the effects of deceased persons, as was vested in or exercisable by the Court of Probate established in England under the Court of Probate Act 1857, together with full authority to hear and determine all questions relating to testamentary causes and matters:
(b)The like jurisdiction and powers with respect to the real estate of deceased persons as it has with respect to the personal estate of deceased persons:
(c)All probate jurisdiction which, under or by virtue of any enactment not repealed by this Act, is vested in or capable of being exercised by the court.
The Application
As earlier mentioned, this is an application, in part, for an order that Heather Manfield be passed over. The jurisdiction to pass over executors was considered by Besanko J in In the Estate of Crane.[2] There, his Honour observed:[3]
Section 18 of the Supreme Court Act 1935 … provides that this Court, in relation to probate and letters of administration, has the like voluntary and contentious jurisdiction in relation to the granting or revoking of probate of wills, and administration of the effects of deceased persons, as was vested in or exercisable by the Court of Probate established in England under the Court of Probate Act 1857, as amended by the Court of Probate Act 1858, together with full authority to hear and determine all questions relating to testamentary causes and matters. Section 3 of the Court of Probate Act 1857 (20 and 21 Victoria Chapter 77) abolished the jurisdiction of “all Ecclesiastical, Royal Peculiar, Peculiar Memorial and other courts and persons in England now having jurisdiction or authority to grant or revoke probate of wills or letters of administration of the effects of deceased persons”. Section 4 vested all that jurisdiction and authority in Her Majesty to be exercised in the name of Her Majesty in a court to be called a Court of Probate. In addition, s 18 of the SCA provides that the Court has like jurisdiction and powers with respect to real estate as it has with the personal estate of deceased persons, and it has all probate jurisdiction which, under or by virtue of any enactment not repealed by this Act, is vested in or capable of being exercised by the Court.
Section 5 of the Administration and Probate Act 1919 in effect maintains and continues the jurisdiction of this Court as it was before that Act came into operation, and s 21 of that Act provides that the practice of this Court in its testamentary causes jurisdiction shall be as it was immediately before the Act came into operation.
There is no specific section in the Administration and Probate Act 1919 or any other legislation in this State which gives this Court the power to make an order passing over an executor in the circumstances of this case or similar circumstances. There are sections in the Administration and Probate Act 1919 such as s 36 which deals with an executor renouncing, dying or not appearing when cited, and s 37 which deals with an executor to whom probate has been granted who resides out of the State, but these sections are not relevant in the circumstances of this case. There is the power given in s 9 of the Public Trustee Act 1995 to grant administration of the estate of a deceased person to the Public Trustee in the circumstances set out in that section. One such circumstance is that defined in s 9(1)(g), namely, where the estate is in danger of being lost or destroyed or great loss or expense may be incurred by reason of delay and the executor(s) is unfit or incapable of acting. If the facts of this case fell within the terms of that section, the appointment of the Public Trustee might be considered an appropriate solution for the difficulties raised by this case. However, neither party seeks an order under s 9 of the Public Trustee Act 1995.
Besanko J referred to the decisions of this Court in In re Kuhl; Kuhl v Liebcheschel,[4] In re Swale[5] and In the Estate of Smith, Deceased[6] as well as the decisions of Legoe J and of the Full Court in In the Estate of Shephard, Deceased[7] before reaching the following conclusion:[8]
In my opinion, this Court does have jurisdiction in limited circumstances to pass over an executor named in a will. That jurisdiction is given to this Court by s 18 of the [Supreme Court Act] and the provisions of the Administration and Probate Act 1919. This Court also has the power to remove an executor who has been given a grant of probate.
[2]    In the Estate of Crane (2005) 93 SASR 198.
[3]    In the Estate of Crane (2005) 93 SASR 198, [15]-[17].
[4]    In re Kuhl; Kuhl v Liebcheschel [1933] SASR 394.
[5]    In re Swale [1940] SASR 391.
[6]    In the Estate of Smith, Deceased (1972) 2 SASR 477.
[7]    In the Estate of Shephard, Deceased (1982) 29 SASR 247 (Legoe J); In the Estate of Shephard, Deceased (1982) 30 SASR 1 (Full Court).
[8]    In the Estate of Crane (2005) 93 SASR 198, [23].
I adopt Besanko J’s reasoning and I agree that this Court has jurisdiction to pass over an executor in limited circumstances. I must now consider whether it is appropriate to exercise the jurisdiction in the circumstances of the within proceeding. Besanko J also provided some guidance in this respect. His Honour observed:[9]
…First, it is clearly established that a Court will not readily pass over a named executor and, in general, a person who is named as executor by a testator is entitled to a grant of probate. Section 67 of the Testamentary Causes Act 1867 refers to “special circumstances” and the jurisdiction to pass over an executor is properly described as a limited jurisdiction. Secondly, when a court does exercise the jurisdiction it does so having regard to the due and proper administration of the estate and the interests of the parties beneficially entitled to the estate. Although the case was about the revocation of a grant, the decision of Jeune P in In the Goods of William Loveday [1900] P 154 at 156, establishes that proposition.
There are a large number of English cases where the Court of Probate has passed over an executor or revoked a grant of probate. That has been done on various grounds of which the following are examples:
…
4      The executor was absent abroad: In the Goods of William Taylor [1892] P 90.
…
8      The executor had disappeared: In Re Sawtell (1862) 2 Sw and Tr 448.
…
[Emphasis added.]
[9]    In the Estate of Crane (2005) 93 SASR 198, [24]-[25]; see also In the Estate of Stuart (deceased) (2009) 106 SASR 39, where I considered these principles in the context of an application to revoke a grant of probate and for a fresh grant to be issued in circumstances where the due and proper administration of the estate was frustrated by the relationship of the executors.
When considering whether it is appropriate to pass over Heather Manfield, I must have regard to the due and proper administration of the estate and to the interests of the parties beneficially entitled to the estate. It is also necessary for me to appreciate that the jurisdiction to pass over an executor appointed in a will is limited and that, in general, the named executor is entitled to a grant of probate.
In the present proceeding, although thorough searches have been conducted to find Heather Manfield, I am of the view that there are still further investigations which could be undertaken. For example, searches could be conducted through the Public Trustee’s genealogical services. However, given the small size of the estate, it does not seem to be expedient that further costs are incurred. Therefore, making the order sought to pass over Heather Manfield would assist the due and proper administration of the estate.
I turn now to consider the interests of the parties beneficially entitled to the estate. A representative of the residuary beneficiary, the National Heart Foundation of Australia, has consented to the application. The two other beneficiaries who receive personalty are both deceased, one died on 24 February 2004 and the other on 27 November 2011. It is also of significance that the destination of the estate is not affected by the present application.
Further, it is worth noting that a similar application was granted in In the Goods of Sawtell (deceased),[10] a matter in which the facts were similar to those in the present proceeding. In that decision, the deceased appointed “William George, of No 4 Finsbury Square, watchmaker” as the executor of his will. Following the deceased’s death, there was evidence that no one could be located who matched the description of the executor named in the will and that the deceased’s friends and relatives did not know anyone of that description. Sir C Cresswell decided that as the interested parties had consented, it was appropriate for him to grant letters of administration with the will annexed to one of the residuary legatees.
[10] In the Goods of Sawtell (deceased) (1862) 2 Sw & Tr 448.
In my view, having regard to the due and proper administration of the estate and to the interests of the parties beneficially entitled to the estate, the circumstances in the present proceeding fall into the limited class of cases where it is appropriate to make an order passing over the named executor. It is appropriate to make an order passing over Heather Manfield and to make an order granting probate to John Davidson.