In the Estate of BENJAMIN (DECEASED) - [2016] SASC 84

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Estate of BENJAMIN (DECEASED)
[2016] SASC 84
Judgment of The Honourable Justice Stanley
9 June 2016
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - JURISDICTION AND DISCRETION OF COURT - SOUTH AUSTRALIA
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - ALTERATION AND REVOCATION OF GRANTS - CIRCUMSTANCES
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF ADMINISTRATION GENERALLY - PUBLIC TRUSTEES AND CURATORS
Laurence Gwynfryn Benjamin (the deceased) died on 27 August 2015. He was survived by his sons Leigh Benjamin and Grant Benjamin. He had made a will dated 17 September 2013. On 17 November 2015 a grant of probate was made in favour of James Cavalier Douglas and Shona Hoskins, the executors and trustees appointed by the deceased in his will. The executors were the deceased’s solicitors. They are the plaintiffs on this application.
The deceased’s will left one half of his estate to his son Leigh Benjamin and gave a life interest in the other half, to be held on trust, for his son Grant Benjamin. The executors and trustees appointed by the deceased are required by the terms of his will, in their absolute discretion, to apply the income and capital of that half of the estate for the general maintenance, comfort or wellbeing of Grant Benjamin. The remainder interest is to vest in Leigh Benjamin in the event he survives his brother.
The plaintiffs apply to the court for a revocation of the grant of probate made on 17 November 2015. They do so on the basis that they have encountered difficulties in administering the estate due to the behaviour of Grant Benjamin.
Mr Leigh Benjamin supports the plaintiffs’ application for a revocation of the grant of probate.
Held:
1. Circumstances in which a grant of probate may be revoked is a matter for the discretion of the court to be exercised where the court is satisfied that there is a good or convenient reason to do so. In the exercise of that discretion the court must consider all the circumstances of the particular case. In exercising the discretion the court must look to the interests of the beneficiaries under the will or on an intestacy (at [14]).
2. The grant of probate of the will of the late Laurence Gwynfryn Benjamin late of 18 Margaret Avenue, Somerton Park in the State of South Australia, deceased, bearing date 17 September 2013 which was granted by this Honourable Court to Shona Hoskins and James Cavalier Douglas on 17 November 2015 be declared and the same being null and void for all intents and purposes in law, and that probate of the will of the deceased be revoked (at [25]).
3. Administration of the estate of the late Laurence Gwynfryn Benjamin late of 18 Margaret Avenue, Somerton Park in the State of South Australia, deceased, be granted to the Public Trustee pursuant to s 9 of the Public Trustee Act 1995 (SA) (at [25]).
Public Trustee Act 1995 (SA) s 9; Supreme Court Act 1935 (SA) s 18; Administration and Probate Act 1919 (SA) s 5, referred to.
Phelan v Booth (1941) 43 WALR 60; Estate of Edwards (deceased) (1981) 28 SASR; Rasheed v Rasheed (1999) 73 SASR 346; In re Gillard (deceased) [1949] VLR 378; Bramston v Morris; Estate of Murray (Unreported, Supreme Court of New South Wales, Powell J delivered 20 August 1993); Re the Estate of Stuart (2009) 106 SASR 39; In the Estate of Helene Josephine Storch (deceased) [2013] SASC 129; Wight v Robinson [2013] NSWSC 1229, considered.

In the Estate of BENJAMIN (DECEASED)
[2016] SASC 84
Testamentary Causes Jurisdiction
STANLEY J:
Introduction

This is an application for revocation of a grant of probate.
Laurence Gwynfryn Benjamin (the deceased) died on 27 August 2015. He was survived by his sons Leigh Benjamin and Grant Benjamin. He had made a will dated 17 September 2013. On 17 November 2015 a grant of probate was made in favour of James Cavalier Douglas and Shona Hoskins, the executors and trustees appointed by the deceased in his will. The executors were the deceased’s solicitors. They are the plaintiffs on this application.
Affidavits of Mr Douglas sworn 25 February 2016 and Ms Hoskins sworn 22 April 2016 were filed in support of the application. An affidavit of Leigh Benjamin sworn 21 April 2016 was also filed. In making findings I have relied on this affidavit evidence.
Circumstances of the application
The deceased’s will left one half of his estate to his son Leigh Benjamin and gave a life interest in the other half, to be held on trust, for his son Grant Benjamin. The executors and trustees appointed by the deceased are required by the terms of his will, in their absolute discretion, to apply the income and capital of that half of the estate for the general maintenance, comfort or wellbeing of Grant Benjamin. The remainder interest is to vest in Leigh Benjamin in the event he survives his brother.
The will also contains the following declaration:
4.1I DECLARE that my said son GRANT MORGAN BENJAMIN has no beneficial or equitable interest in the property known as 18 Margaret Avenue, Somerton Park aforesaid being the whole of the land comprised in Certificate of Title Volume 5420 Folio 344 (“the property”) having not ever made any financial or meaningful non-financial contribution to the acquisition, conservation or maintenance of the said property and in particular;
4.1.1 my said son did not ever pay rent or board or any amount towards utilities accounts, despite me constantly asking him to do so;
4.1.2 my said son did not ever pay any amount towards the mortgage registered over the property or rates and taxes for the property;
4.1.3 I did not ever give any promise of any type that would cause my said son to have an expectation that he was or would be beneficially entitled to the property.
The plaintiffs apply to the court for a revocation of the grant of probate made on 17 November 2015. They do so on the basis that they have encountered difficulties in administering the estate due to the behaviour of Grant Benjamin.
The principal asset of the estate is land at 18 Margaret Avenue, Somerton Park (the Margaret Avenue property). The Statement of Assets and Liabilities states the land is worth $480,000 and is subject to a mortgage of $54,283.74. The net estate disclosed is $435,864.41. It is necessary to sell the land to administer the will. The property is presently occupied by Grant Benjamin.
There is evidence Grant Benjamin has made threats to Mr Douglas as a result of the plaintiffs requiring Mr Benjamin to vacate the property in order to facilitate its sale as part of the administration of the estate. There is evidence that Grant Benjamin attended at the office from which the plaintiffs’ solicitors practice is conducted on 1 February 2016. He spoke to a member of the plaintiffs’ staff. He delivered a document concerning items he asserts were stolen from the property. He said he was very angry regarding how the estate was being handled and words to the effect that if Mr Douglas tried to sell the property, he would kill him.
The plaintiffs’ office is geographically near the Margaret Avenue property. The plaintiffs assert that they do not have the facilities to deal with aggressive persons such as Grant Benjamin. They consider that they and their staff are exposed to an unreasonable risk of abuse and assault by Grant Benjamin. They consider this makes it very difficult, if not impossible, for them to discharge their responsibilities as the executors and trustees of the deceased.
There is evidence that Grant Benjamin suffers from an addiction to crystal methylamphetamine and has suffered from mental health problems for some years. The Margaret Avenue property is in a significant state of disrepair and deterioration. Leigh Benjamin, who has experience in the building industry as a carpenter and building works supervisor, considers that the cost of renovating the house is uneconomic and the property is worth land value only. While his brother has been in occupation, rates and taxes have not been paid and outgoings and debts in relation to the property are accumulating to the detriment of the estate. He is concerned that the NAB, the mortgagee of the property, will seek possession of the property for the purposes of selling it to realise the monies owed to the bank by the deceased. He is concerned that if this occurs the property may be sold for less than its full market value.
Mr Leigh Benjamin supports the plaintiffs’ application for a revocation of the grant of probate. Initially he sought an order of the court that letters of administration with the will annexed in respect of the deceased’s estate be issued in his favour. Subsequently he amended his position to seek an order that the Public Trustee be appointed as administrator of the deceased estate pursuant to s 9 of the Public Trustee Act 1995 (SA) (the Public Trustee Act). That course was not opposed by the plaintiffs.
Mr Grant Benjamin did not participate in the hearing of this matter. He was served personally with the plaintiffs’ application and supporting affidavits. In addition, I made an order for substituted service on the basis I was satisfied that he was either avoiding service or his attendance at the Margaret Avenue property was so erratic and irregular that personal service was proving difficult. In any event, personal service was eventually effected by a process server, Mr Wright. Grant Benjamin was notified of the date of the hearing of the application before the court. Neither he nor solicitor or counsel acting on his behalf appeared. In the circumstances I proceeded to hear the matter in his absence.
Power of revocation
Pursuant to s 18 of the Supreme Court Act 1935 (SA), s 5 of the Administration and Probate Act 1919 (SA) and s 9 of the Public Trustee Act, this Court has the power to revoke grants of probate and letters of administration. Notwithstanding this statutory power, the court is also possessed of an inherent power, by reason of the conferral of the power to make a grant of probate or administration, to revoke or suspend its own grant for just cause.[1]
[1] Phelan v Booth (1941) 43 WALR 60 at 61; Estate of Edwards (deceased) (1981) 28 SASR 380 at 382.
The legislation does not specifically provide for circumstances in which a grant may be revoked. It is a matter for the discretion of the court to be exercised where the court is satisfied that there is a good or convenient reason to do so.[2] In the exercise of that discretion the court must consider all the circumstances of the particular case.[3] In exercising the discretion the court must look to the interests of the beneficiaries under the will or on an intestacy.
[2] Rasheed v Rasheed [1999] SASC 88 at [55] – [56], (1999) 73 SASR 346 at 355.
[3] Rasheed v Rasheed [1999] SASC 88 at [55], (1999) 73 SASR 346 at 355; In re Gillard (deceased) [1949] VLR 378 at 382; Bramston v Morris; Estate of Murray (Unreported, Supreme Court of New South Wales, Powell J delivered 20 August 1993).
A grant which has been properly made may be revoked because of a subsequent event including the incapacity of the grantee or the grantee wishing to be relieved of office, a breach of duty by the grantee or where the grantee has disappeared.
In Re the Estate of Stuart (deceased)[4] Gray J held that the court will not readily revoke a grant of probate when its grant was valid. Equally, however, Gray J held that where the proper administration of an estate is frustrated to a significant degree, revocation is warranted. His Honour held that a grant of probate may be revoked on the application of the executors who took the grant in order to allow for the due and proper administration of the estate where there exists a near impossibility of that eventuating. In that case, the circumstances which resulted in the near impossibility of the due and proper administration of the estate was the breakdown in the relationship of the executors. As his Honour subsequently observed in In the Estate of Helene Josephine Storch (deceased),[5] the guiding principle in determining whether to revoke a grant of probate must be the due and proper administration of the estate and the interests of the parties beneficially entitled thereto.
[4] [2009] SASC 399, (2009) 106 SASR 39.
[5] [2013] SASC 129.
In Wight v Robinson[6] Lindsay J of the New South Wales Supreme Court revoked a grant of probate on the application of the sole beneficiary of the estate in circumstances where the court was satisfied on the evidence before it that there existed a bona fide dispute between the beneficiary and the executor of such a nature and scope that it had impeded, was impeding, and if unchecked, was likely to continue to impede the administration of the deceased’s estate.
[6] [2013] NSWSC 1229.
Lindsay J held that the grounds upon which the court may, in its discretion, revoke a grant of probate (especially a grant in common form) are not closed.[7] He held that on an application for revocation of a grant of probate, the court must consider the particular facts of the particular case, with an eye to the ongoing administration of the estate as well as the range of interests affected by the current and any prospective regime for administration. Lindsay J held that it was not necessary to make any finding of misconduct or default on the part of the executor or the beneficiary.[8] It was sufficient for the disposition of the proceedings that:
1.There was and had been a bona fide dispute, which the parties, on reasonable grounds, accepted had affected the due administration of the estate and was likely, if not resolved, to continue to do so;
2.The working relationship between the plaintiff and the defendant necessary to due administration of the estate had broken down, frustrating the process of administration;
3.The plaintiff was the sole beneficiary of the deceased estate and the person with the greatest personal interest in the due administration of the estate; and
4.In all the circumstances it was appropriate that she be charged with future administration of the estate and there was no compelling or competing reason for withholding that responsibility from her.
[7] Richards v Reardon [2006] NSWSC 1252 at [16].
[8] Profilio v Profilio [1999] NSWSC 657 at [18] – [29].
In these circumstances, Lindsay J ordered that letters of administration with the will annexed be granted to the beneficiary.
Consideration
In this case I am satisfied on the evidence before me that it is appropriate to exercise the court’s power to revoke the grant of probate made in favour of the plaintiffs by this Court on 17 November 2015.
I am satisfied on the evidence there is good reason to make the order. The plaintiffs wish to be relieved from office because of concerns over their safety and that of their staff. I am satisfied that the conduct of Grant Benjamin is likely to continue to impede administration of the deceased’s estate so long as the executors feel that they are under threat from him. I am satisfied that the proper administration of the deceased’s estate requires the sale of the Margaret Avenue property. The proper administration of the deceased’s estate is impaired by the threats posed to the executors by Grant Benjamin.
I am prepared to relieve them of their office because I am satisfied that the due administration of the estate will not be impaired by a revocation of the grant in circumstances where I propose to appoint the Public Trustee as administrator pursuant to the provisions of s 9 of the Public Trustee Act. Section 9 provides:
9—Administration of deceased estate
(1) The Court may make an order (an administration order) granting administration of the estate of a deceased person to the Public Trustee, or authorising the Public Trustee to administer the estate of a deceased person—
(a)     if, in the opinion of the Court—
(i) the deceased has died bankrupt or insolvent; or
(ii) a creditor would be entitled to obtain administration of the estate or to institute an action for the administration of the estate,
(and if, in such a case, probate or administration has been granted to a person other than the Public Trustee, the Court may revoke the probate or administration without prejudice to any proceedings taken or act done under it); or
(b)     if the deceased has died wholly or partially intestate, leaving property within this State, but not leaving a spouse, domestic partner or next of kin resident in the State who is of or above 18 years of age; or
(c)     if—
(i) the deceased has made a will without leaving an executor resident in this State willing to act and capable of acting in the execution of the will; and
(ii) there is no person of or above 18 years of age in this State entitled to obtain administration with the will annexed; or
(d)     if the deceased has made a will and appointed an executor but probate of the will has not been obtained within four months from the death of the deceased; or
(e)     if no person entitled to obtain administration (with or without a will annexed) obtains it within three months after the death of the deceased; or
(f)      if probate or administration has been granted to a person who desires to retire from the office of executor or administrator (and, in such a case, the Court may revoke the probate or administration without prejudice to any proceedings taken or act done under it); or
(g)     if—
(i) the estate or portion of it is liable to waste, of a perishable nature or in danger of being lost or destroyed, or great loss or expense may be incurred by reason of delay; and
(ii) the executor, person entitled to administration (with the will annexed), spouse, domestic partner or next of kin—
(A) is absent from the locality of the estate; or
(B) is not known; or
(C) has not been found; or
(D) is unfit or incapable; or
(h)     if an executor, or person entitled to administration, requests the Public Trustee, in writing, to apply for an order under this section; or
(i)      if part of an estate, already partly administered, is unadministered owing to the death, incapacity, insolvency, disappearance or absence from the State of the executor or administrator.
(2) If it appears to the Court—
(a)     that there is reasonable ground to suppose that a person has died leaving property within this State; and
(b)     that the person died intestate or without a will duly proved within a reasonable time after death,
the Court may, without requiring strict proof of death, make an administration order authorising the Public Trustee to administer the person's estate for the benefit of the person's creditors and for the discharge of the person's liabilities as if the person were dead.
(3) An application for an administration order may be made by—
(a)     the Public Trustee; or
(b)     a person interested in the estate (including a creditor); or
(c)     a guardian or blood relation of a person under 18 years of age interested in the estate.
(4) An administration order may be obtained either without notice or after notice has been given as directed by the Court.
(5) The Court may revoke an administration order and order—
(a)     that probate be granted to an executor entitled to probate of the will of the deceased, or that letters of administration with the will annexed be granted to any person entitled to them;
(b)     that property from a deceased person's estate vested in or under the control of the Public Trustee be transferred or delivered to a person or persons entitled to it, whether in trust or beneficially.
(6) Revocation of an administration order is without prejudice to any proceedings taken or act done under it.
(7) An administration order of a kind referred to in subsection (2) may not be revoked unless the Court is satisfied that special circumstances of the case and lapse of time since the making of the order justify the revocation.
(8) If an order is made authorising the Public Trustee to administer the estate of a deceased person, the Public Trustee will be taken to be the administrator of the estate for the purposes of any other Act but subject to the provisions of the other Act.

I am satisfied that the Public Trustee is in a position to attend to the due and proper administration of the estate. The appointment of the Public Trustee to administer the estate of the deceased is supported by the other beneficiary, Leigh Benjamin. The case falls within the terms of s 9(1)(f) of the Public Trustee Act.
Ms Ewing, who appeared for the Public Trustee, did not oppose the court making an order pursuant to s 9(1)(f). The appointment of the Public Trustee will ensure the due and proper administration of the estate. It will protect the interests of both beneficiaries under the will. Although Leigh Benjamin was prepared to administer the estate, I do not consider this appropriate considering the potential for conflict with his brother and the potential for a conflict of interest to arise in the administration of the deceased’s estate given the terms of the will relating to the grant of a life interest to Grant Benjamin with the remainder interest to vest in Leigh Benjamin if he survives his brother. This is no reflection on Leigh Benjamin.
Conclusion
I order that:
1.The grant of probate of the will of the late Laurence Gwynfryn Benjamin late of 18 Margaret Avenue, Somerton Park in the State of South Australia, deceased, bearing date 17 September 2013 which was granted by this Honourable Court to Shona Hoskins and James Cavalier Douglas on 17 November 2015 be declared and the same being null and void for all intents and purposes in law, and that probate of the will of the deceased be revoked.
2.Administration of the estate of the late Laurence Gwynfryn Benjamin late of 18 Margaret Avenue, Somerton Park in the State of South Australia, deceased, be granted to the Public Trustee pursuant to s 9 of the Public Trustee Act 1995 (SA).
I will hear the parties as to the costs of the application.