In the Estate of Bridget Ann Billington (Deceased)

[2017] SASC 73

SUPREME COURT OF SOUTH AUSTRALIA

(Testamentary Causes Jurisdiction: Application)

In the Estate of BRIDGET ANN BILLINGTON (DECEASED)

[2017] SASC 73

Judgment of The Honourable Justice Stanley

26 May 2017

SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - TO WHOM PROBATE GRANTED - PASSING OVER OF EXECUTOR AND OTHER MATTERS

SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - LIMITED, SPECIAL AND CONDITIONAL GRANTS OF PROBATE AND ADMINISTRATION - OTHER CASES

SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF ADMINISTRATION GENERALLY - PUBLIC TRUSTEES AND CURATORS

This is an application by the plaintiff to pass over the defendant as executor of the deceased’s estate and grant to him letters of administration with the will annexed. In the alternative, the plaintiff seeks a general grant under r 63 of the Probate Rules 2015 (SA). In the further alternative, the plaintiff seeks a grant under r 46 for the defendant’s use and benefit or a grant under r 46 for the defendant’s use and benefit, limited to the duration of the defendant’s incapacity. The plaintiff also seeks an order that the said administrator not be bound by s 65 of the Administration and Probate Act 1919 (SA) (the Act).

The deceased, Bridget Ann Billington, died on 6 October 2015.  In her will, which was executed on 9 April 1991, the deceased appointed her husband, the defendant, as her sole executor.  The deceased and the defendant made mirror wills, each leaving the entirety of their estate to one another.  The deceased provided that her sons, Timothy, David and Jonathan, were to be her executors if the defendant predeceased her.  The plaintiff, Jonathan Billington, is the deceased’s youngest son.  The defendant is the deceased’s sole executor and beneficiary of her estate.  

Central to the plaintiff’s application is the submission that the defendant is not fit by reason of his advanced years and poor physical and intellectual functioning to undertake the duties of executor.  

Held, per Stanley J:

1.  I am satisfied on the evidence that the defendant will never recover legal capacity or the mental capacity necessary to administer the deceased’s estate (at [5]).

2.  The executor appointed in the will of the deceased, Christopher Billington, be passed over (at [51]).

3.  Grant to Jonathan Billington, son of the deceased, letters of administration with the will annexed (at [51]).

4. An order dispensing with the requirement for the plaintiff to comply with s 65 of the Administration and Probate Act 1919 (SA) pursuant to s 67 of the Act with respect to the interest in the estate of the deceased of Christopher Billington (at [51]).

Administration and Probate Act 1919 (SA) s 5, s 65, s 67; Probate Rules 2015 (SA) r 63, r 46; Supreme Court Act 1935 (SA) s 18, referred to.
In the Goods of Leese [1894] P 160; In the Goods of Cooke [1895] P 68, distinguished.
In the Estate of Smith (1972) 2 SASR 477; In Re Swale (1940) SASR 391; Re Mathew (dec'd) [1984] 2 All ER 396, discussed.
In the Estate of Crane (2005) 93 SASR 198; Executor Trustee Australia Limited v McDougall & Ors (2011) 110 SASR 462; In the Goods of Galbraith (dec'd) [1951] P 422; In the Goods of Loveday [1900] P 154; Bates v Messner (1967) 67 SR (NSW) 187; Mavrideros v Mack (1998) 45 NSWLR 80; In the Estate of Stuart (2009) 106 SASR 39; In the Estate of Asimakopoulos [2016] SASC 109; Mullins-Trnovsky v Adams (2014) 121 SASR 155; In the Estate of Freebairn (2005) 93 SASR 415; In the Goods of Frengley [1915] 2 Ir R 1; IW v City of Perth (1997) 191 CLR 1; In the Estate of Richter (dec'd) [2011] SASC 124; In the Estate of Estall (dec'd) [2011] SASC 188, considered.

In the Estate of BRIDGET ANN BILLINGTON (DECEASED)
[2017] SASC 73

Testamentary Causes Jurisdiction

STANLEY J.

Introduction

1. The plaintiff brings an application for two orders. The first order is to pass over Christopher Billington (the defendant) as executor of the deceased’s estate and grant to the plaintiff letters of administration with the will annexed. In the alternative, the plaintiff seeks a general grant for letters of administration with the will annexed for the use and benefit of the defendant, the nominated executor, pursuant to r 63 of the Probate Rules 2015 (SA). In the further alternative, the plaintiff seeks a grant under r 46 for the defendant’s use and benefit, limited to the duration of the defendant’s incapacity. The second order sought is that the said administrator not be bound by s 65 of the Administration and Probate Act 1919 (SA) (the Act). That is an application made pursuant to s 67 of the Act.

2. The deceased, Bridget Ann Billington, died on 6 October 2015.  In her will, which was executed on 9 April 1991, the deceased appointed her husband, the defendant, as her sole executor.  The deceased and the defendant made mirror wills, each leaving the entirety of their estate to one another.  The deceased provided that her sons, Timothy, David and Jonathan, were to be her executors if the defendant predeceased her.  The plaintiff, Jonathan Billington, is the deceased’s youngest son.  The defendant is the deceased’s sole executor and beneficiary of her estate.  

3. Central to the plaintiff’s application is the submission that the defendant is not fit by reason of his advanced years and poor physical and intellectual functioning to undertake the duties of executor.  

   Application to pass over executor

4. At trial, the plaintiff tendered an affidavit of Dr Timothy Simpson.[1] Dr Simpson is the defendant’s general practitioner and has cared for him since his arrival at a nursing home in 2012.  Dr Simpson deposes that the defendant is 92 years of age and requires high level care.  He suffers from hypertension, ischaemic heart disease, urinary incontinence and vitamin D deficiency.  He previously suffered a stroke in 2012 and a heart attack in 2008.  Dr Simpson has diagnosed the defendant with dementia.  His symptoms include poor concentration, very limited comprehension, poor short term memory, reduced cognition, confusion and disorientation with respect to time, place and people and difficulty performing important tasks.  The defendant resides in a secure facility due to the advanced stages of his dementia.  He requires assistance with dressing, toileting and hygiene, supervision of eating and drinking, assistance with walking and all tasks of daily living.  In Dr Simpson’s opinion the defendant is incapable of managing his legal or financial affairs and will never be capable of doing so.  The severe impairment of the defendant’s short term memory makes such activities impossible.  In Dr Simpson’s opinion the defendant will never be capable of managing his own affairs or the affairs of others.   

   [1]    Exhibit P4, affidavit of Timothy John Simpson, affirmed on 11 August 2016.

5. I am satisfied on the evidence that the defendant will never recover legal capacity or the mental capacity necessary to administer the deceased’s estate.  

6. The plaintiff submits that the executor should be passed over given his age, prior history of heart attack and stroke and the fact that the advanced stage of his dementia renders him permanently incapacitated.  The plaintiff submits that the clear terms of the will render it unnecessary for the grant to be limited and it would cause considerable inconvenience and difficulty if the defendant were to die during pendency of the administration as a further application for a grant would be required.  The plaintiff submits the court should grant the relief sought pursuant to its inherent jurisdiction.  It is necessary to consider this Court’s jurisdiction to pass over an executor. 

   Jurisdiction of the Court to pass over an appointed executor

7. Section 18 of the Supreme Court Act 1935 (SA) (SCA) 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 (Eng) as amended by the Court of Probate Act 1858 (Eng), together with full authority to hear and determine all questions relating to testamentary causes and matters.[2]  That power includes power to revoke grants of probate.[3]  Revocation of probate is the appropriate order where it is necessary, in the interests of the proper administration of the estate, to remove an executor.[4]

   [2]    In the Estate of Crane [2005] SASC 379 at [15], (2005) 93 SASR 198 at 202.

   [3]    Administration and Probate Act 1919 (SA) s 5.

   [4]    Executor Trustee Australia Limited v McDougall & Ors (2011) 110 SASR 462 at 467.

8. In In Re Swale[5] Napier J, as he then was, considered whether this Court had the power to grant letters of administration with the will annexed to a stranger. Such a power was conferred on the court by s 67 of the Testamentary Causes Act 1867 (SA) but that section had been repealed. Napier J held that s 67 was declaratory of the jurisdiction of the Court of Probate in England and that by virtue of s 18 of the SCA this Court has all the inherent powers and authorities which were formerly possessed the Court of Probate in England.

   [5] [1940] SASR 391.

9. Walters J in In the Estate of Smith[6] considered the operation of s 67 of the Testamentary Causes Act 1867 (SA) which, with appropriate modifications, reflected the terms of s 73 of the Court of Probate Act 1857 (Eng). Walters J held that s 67 conferred upon the Court the power to grant administration to a stranger in blood in special circumstances arising out of necessity or convenience. Walters J, relying upon Swale’s case, also held that jurisdiction for the exercise of that power is found in the inherent jurisdiction of the court. 

   [6] (1972) 2 SASR 477.

10. In In the Estate of Crane[7] Besanko J held that the Court has jurisdiction in limited circumstances to pass over an executor named in a will. He held that jurisdiction is given to the Court by s 18 of the Supreme Court Act 1935 (SA) and the provisions of the Act.[8] 

    [7] [2005] SASC 379, (2005) 93 SASR 198.

    [8] [2005] SASC 379 at [23], (2005) 93 SASR 198 at 203.

11. The rationale for the limit on the circumstances in which a court will pass over an executor named in a will is that generally speaking, a person who is named as executor by a testator or testatrix is entitled to a grant of probate. As Besanko J noted, s 67 of the Testamentary Causes Act refers to “special circumstances” and the jurisdiction to pass over an executor is properly described as a limited jurisdiction.[9]

    [9] [2005] SASC 379 at [24], (2005) 93 SASR 198 at 203.

12. Besanko J identified nine well accepted grounds for passing over an executor or revoking a grant of probate:[10]

    [10] [2005] SASC 379 at [25], (2005) 93 SASR 198 at 204.

    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:

    1.The executor was of bad character, had been convicted of manslaughter in relation to the death of the testator and was in prison;

    2.The executor had neglected his duties;

    3.The executor had intermeddled in the estate and refused to take a grant;

    4.The executor was absent abroad;

    5.The executor was suffering from ill-health;

    6.The executor was of unsound mind;

    7.The executor was not competent to take probate;

    8.The executor had disappeared; or

    9.The estate was insolvent.

    [Citations omitted].

13. At issue is always the question of when the jurisdiction will be exercised.  Some assistance is obtained from a consideration of the authorities. 

14. In In the Goods of Loveday[11] concerned an application for revocation of an outstanding grant where the administrator of an estate could not be found.  Jeune P said that in exercising the jurisdiction to revoke a grant of administration a court must have regard to the due and proper administration of the estate and the interests of the parties beneficially entitled to the estate.[12]  Jeune P held:[13]

    After all, the real object which the Court must always keep in view is the due and proper administration of the estate and the interests of the parties beneficially entitled thereto; and I can see no good reason why the Court should not take fresh action in regard to an estate where it is made clear that its previous grant has turned out abortive or inefficient.

    [11] [1900] P 154.

    [12]   Cited with approval in Bates v Messner (1967) 67 SR (NSW) 187 at 189, In the Estate of Crane [2005] SASC 379 at [24], (2005) 93 SASR 198 at 203-204, In the Estate of Stuart [2009] SASC 399 at [24], (2009) 106 SASR 39 at 46, In the Estate of Asimakopoulos [2016] SASC 109 at [23].

    [13] [1900] P 154 at 156.

15. Bates v Messner[14] involved an executor of an estate who had been granted probate and who for six years had done almost nothing to ensure the proper administration of the estate.  The executor disappeared and it was discovered that there had been misconduct on his part.  Asprey JA, in invoking the Court’s inherent jurisdiction to revoke a grant of probate, said:[15]

    I shall make no attempt to define all circumstances which may attract the exercise of the court’s jurisdiction, but where circumstances clearly appear to have arisen after a grant of probate which impel the court to the firm conclusion that the due and proper administration of an estate has either been put in jeopardy or has been prevented either by reason of acts or omissions on the part of the executor, or by virtue of matters personal to him, for example, mental infirmity, ill health, or by virtue of the proof of other matters which establish that the executor is not a fit and proper person to carry out the duties which he has sworn to the court that he will perform, the court may exercise its inherent jurisdiction to revoke the grant.

    [14] (1967) 67 SR (NSW) 187.

    [15] (1967) 67 SR (NSW) 187 at 191-192.

16. More recently in Mavrideros v Mack[16] Sheller JA, with whom Priestley JA and Beazley JA agreed, applied the dicta of Asprey JA in Bates v Messner and observed:[17]

    …The question [is] whether the due and proper administration of an estate had either been put in jeopardy or had been prevented either by reasons of acts or omissions on the part of the executor or by virtue of matters personal to him, for example, mental infirmity, ill health, or by virtue of the proof of other matters which established that the executor was not a fit and proper person to carry out the duties he had sworn to perform.  His Honour applied a far too rigid test by saying that one had to get close to the position of the grant being useless.

    [16] (1998) 45 NSWLR 80.

    [17] (1998) 45 NSWLR 80 at 108.

17. The statement of principle in Bates v Messner was approved by this Court in In the Estate of Stuart[18] and in Mullins-Trnovsky v Adams[19] where Gray J said:[20]

    The courts have identified several circumstances in which it is appropriate to revoke a grant of probate or pass over an executor.  The executors who were the subject of those decisions were variously in prison, in neglect of their duties, had refused to take a grant of probate, had disappeared or were otherwise absent abroad, or were otherwise not physically or mentally capable of taking probate.

    [Citations omitted].

    Gray J concluded that the guiding principle in determining whether to revoke a grant of probate is ensuring the due and proper administration of the estate in the interests of the parties beneficially entitled thereto.[21]  This reflects the governing principle in the exercise of the jurisdiction to pass over an executor identified by Besanko J in In the Estate of Crane.[22]

    [18] [2009] SASC 399 at [21]-[22], (2009) 106 SASR 39 at 45-46.

    [19] [2014] SASC 116, (2014) 121 SASR 155.

    [20] [2014] SASC 116 at [16], (2014) 121 SASR 155 at 160.

    [21] [2014] SASC 116 at [18], (2014) 121 SASR 155 at 161.

    [22] [2005] SASC 379 at [40], (2005) 93 SASR 198 at 206.

18. The authorities strongly support the conclusion that this Court has the power to pass over an executor in circumstances where the executor is physically or mentally incapable of taking probate.  In deciding whether this should occur in a particular case and the basis upon which it should occur, it is necessary to consider the rules applicable to this area of law. 

    Rules

19. In this case the issue is not whether an order granting letters of administration should be made but whether that order should be a limited order or a general order. The plaintiff submits that a general grant should be made pursuant to r 63 of the Probate Rules 2015 (SA).  Rule 63 provides:

    Grants of administration under discretionary powers of Court and grants ad colligenda bona

    An application for an order for:

    (a)a grant of administration to a person not entitled under other provisions of these Rules (for example, a grant of administration of the kind formerly granted under section 67 of the Testamentary Causes Act 1867 to administer personal estate where no grant has been obtained); or

    (b)a grant of administration ad colligenda bona,

    may be made to the Registrar by summons in Form 34 and is to be supported by an affidavit setting out the grounds of the application.

20. The plaintiff submits that it is appropriate to proceed under r 63 as the alternative of a grant under r 46 would be limited to the “use and benefit” of the executor during incapacity. Rule 46 provides:

    Grants in case of mental or physical incapacity

    (1)Where the Registrar is satisfied that a person entitled to a grant is by reason of mental or physical incapacity incapable of managing his or her affairs — the Registrar may on application by summons in Form 34 order that administration for such person’s use and benefit limited during such person’s incapacity or in such other way as the Registrar may direct, be granted—

    (a) to any administrator of the estate of such person appointed pursuant to section 35 of the Guardianship and Administration Act 1993; or

    (b)     to any manager of the property of such person appointed under the Aged and Infirm Persons’ Property Act 1940; or

    (c)     where there is no such administrator or manager appointed—

    (i)where the person incapable is entitled as executor and has no interest in the residuary estate of the deceased— to the person entitled to the residuary estate;

    (ii)where the person incapable is entitled otherwise than as executor or is an executor having an interest in the residuary estate of the deceased— to the person who would be entitled to the grant in respect of his or her estate if he or she had died intestate;

    or to such other person as the Registrar may by order direct.

    (2)Where after a grant has been made the sole executor or administrator, or the surviving executor or administrator, becomes by reason of mental or physical incapacity incapable of managing his or her affairs— upon the grant being impounded, an application for a grant of administration de bonis non for the use and benefit of the incapable grantee, limited during his or her incapacity may be made in accordance with subrule (1).

    (3)Where a grant of probate has been made to one executor with leave reserved to one or more executors and the proving executor becomes, by reason of mental or physical incapacity, incapable of managing his or her affairs— upon the grant being impounded, an application for double probate may be made by one or more of the non-proving executors.

    (4)Where a grant of probate has been made to two or more executors of whom one becomes by reason of mental or physical incapacity incapable of managing his or her affairs— upon the grant being revoked, a grant of probate may be made to the capable executor or executors leave being reserved to the incapable executor to apply for probate when such executor becomes capable of managing his or her affairs.

    (5)Unless the Registrar otherwise directs, no grant of administration will be made under this rule unless all persons entitled in the same order of priority as the person incapable have been cleared off.

    (6)In the case of physical incapacity the application for the grant under this rule must, unless the Registrar otherwise directs, be supported by evidence of the consent of the person alleged to be so physically incapacitated.

    (7)An administrator appointed under section 35 of the Guardianship and Administration Act 1993, or a manager appointed under the Aged and Infirm Persons’ Property Act 1940, of a person incapable of managing his or her affairs may, on such person’s behalf, renounce probate or administration except where such person is also a minor.

1. In In the Estate of Freebairn[23] Besanko J held that an order pursuant to r 44.01 of the Probate Rules 2004 (SA) (now r 46(1) of the Probate Rules 2015 (SA)) that letters of administration with the will annexed be granted for the use and benefit of an executor but limited to the period of incapacity, is the appropriate order in circumstances where the nominated executor is not mentally capable of performing the duties of office.[24] His Honour relied upon the authority of In The Goods of Cooke.[25]However, Besanko J recognised that while ordinarily an order is made limited in that way, there may be circumstances in which the court considers it appropriate to make a general order.[26] His Honour referred to the authority of In the Goods of Galbraith.[27]

   [23] [2005] SASC 497, (2005) 93 SASR 415.

   [24] [2005] SASC 497 at [3], (2005) 93 SASR 415 at 416.

   [25] [1895] P 68.

   [26] [2005] SASC 497 at [3], (2005) 93 SASR 415 at 416.

   [27] [1951] P 422.

2. In my view there is some doubt as to the correctness of the reasoning in In the Goods of Cooke in the present day.  The Court in Cooke made an order for a grant of administration for the use and benefit of an administrator declared a lunatic limited to the period of his lunacy.  That approach reflects an antiquated understanding of mental illness and is factually distinct from this case where, unlike in Cooke, there is no prospect of the defendant recovering from his mental incapacity. 

3. By way of contrast, in In the Goods of Galbraith[28] the two surviving executors of the will of the deceased had become unable properly to carry out their duties by reason of physical and mental illness.  An application was made to the Court for the revocation of probate and for a grant of letters of administration de bonis non.  The Court granted the application on the basis that the respective infirmities of the executors made a continuance of their duties impossible and having regard to the Loveday principle it was appropriate to revoke the existing grant and to make a general grant of letters of administration.   This approach is reflected in other cases. 

   [28] [1951] P 422.

4. In In the Goods of Leese[29] the next of kin of an intestate deceased was elderly and infirm.  The applicant had been appointed to receive her income and to manage her estate.  The Court made a general grant rather than a grant limited to the lifetime of the next of kin. 

   [29] [1894] P 160.

5. In In the Estate of Smith[30] the deceased had died intestate.  His widow who survived him, was entitled to the whole of his estate and to a grant of administration.  His widow was, by reason of mental and physical infirmity, unable to manage her affairs and was deemed a protected person.  Walters J held that an order should be made granting letters of administration but while limited to the use and benefit of the protected person was not limited to the period of her infirmity. 

   [30] (1972) 2 SASR 477.

6. A grant for use and benefit is intended to ensure that discretionary decisions are made in the interests of the person who would otherwise be entitled to the grant. In cases such as this involving an executor of proven incapacity r 46 is the appropriate rule under which to proceed. However as was recognised in Freebairn by Besanko J, citing In the Goods of Galbraith,[31] while ordinarily a limited order is made where an executor’s incapacity prevents him or her from fulfilling the duties of executor there may be circumstances in which the Court considers it appropriate to make a general order.

   [31] [1951] P 422.

7. There is some support for this approach in the English authorities.  In Re Mathew (dec’d),[32] the Court said in considering an application to pass over an executor:[33]

   In granting such an application the court has to be satisfied that there are special circumstances from which it appears necessary or expedient that such persons be administrators.  I follow Ewbank J in Re Clore (decd) in giving an unrestricted interpretation to the words “special circumstances”.  ... the court is equipped with a power, in exercising this discretion, which is without fetter:  it may define the grant in any way it thinks fit, ordering an unlimited or limited grant.

   [Citations omitted.]

   [32] [1984] 2 All ER 396.

   [33] [1984] 2 All ER 396 at 398.

8. Where there is a lack of legal capacity on the part of a sole executor or all the executors of an estate there are two courses available to ensure the proper administration of the estate.   The first and usual course is a limited grant to some other person of letters of administration with the will annexed for the use and benefit of the executor during the executor’s incapacity.   That limited grant ceases upon the death of the incapacitated executor unless the executor has recovered capacity in the interim.  The second course is to pass over the appointed executor or executors and to make a general grant to some other person of letters of administration with the will annexed.  Such grant, being a general grant, does not cease upon the death of the executor.  

9. The exercise of the power of the court to adopt either course is governed by the overriding consideration to ensure the due and proper administration of the estate and the protection of the interests of the parties beneficially entitled to the estate.[34] 

   [34]   In the Goods of Loveday [1900] P 154 at 156; In the Estate of Stuart (2009) 106 SASR 39 at [23]-[24]; In the Estate of Asimakopoulos [2016] SASC 109 at [23]-[28].

10. In my view, notwithstanding the terms of r 46, it is within the inherent power of the Court to make a general order where that is necessary to ensure the due and proper administration of the estate and the protection of the interests of the parties beneficially entitled to it. The inherent power cannot be fettered by the rules. In Mullins-Trnovsky,[35] Gray J said that the Court’s inherent jurisdiction over probate matters and power to vary its own orders is sufficiently broad to allow the removal of an executor without revoking a grant of probate.  The essential subject matter is the proper administration of the estate.  His Honour said the revocation of a grant of probate is one of the orders the Court may make to facilitate the proper administration of an estate.  Likewise, I consider the making of a general order that letters of administration with will annexed be granted to a person, consequent upon the passing over of an executor is also one of the orders the Court may make to facilitate the proper administration of an estate. Where the courts have been faced with novel cases which do not fall squarely within the terms of rules of court, the courts have returned to the fundamental principles dictating that the administration of the estate is a priority.[36]

    [35] [2014] SASC 116 at [30], (2014) 121 SASR 155 at 164.

    [36]   In the Estate of Stuart [2009] SASC 399 at [21], (2009) 106 SASR 39 at 45.

11. In deciding which of these two courses to adopt in passing over an executor it is highly relevant that there is no prospect of the appointed executor ever becoming fit to perform his or her duties.  In those circumstances it is open to the Court to adopt the second course and make a general order that letters of administration with will annexed be granted to another person.  Such an order could be justified to avoid the estate suffering the expense and inconvenience of obtaining a second grant of administration where the appointed executor, suffering from a permanent incapacity, dies during the administration. 

    Consideration

12. The plaintiff submits that the defendant should be passed over and a general grant of probate made as there is no prospect of the appointed executor ever becoming fit to undertake an executor’s duties. 

13. The estate is simple: monies and some personal effects.  The administration is also simple: the defendant is the only person beneficially entitled under the will.   He is entitled to the whole estate.  The plaintiff is willing to administer the estate and has given the oath of the administrator.  He has proved his ability to act in the proper administration of the estate through the management of the deceased’s financial affairs and her personal effects.[37]  He has a long history of caring for, and assisting the defendant and the deceased prior to her death.  The plaintiff has acted as a de facto administrator by arranging the deceased’s funeral and relocation of personal effects, managing her financial affairs and arranging for valuations of the deceased’s chattels.  The plaintiff has demonstrated his ability to undertake the due and proper administration of the deceased’s estate. 

    [37]   Exhibit P2, Affidavit of Jonathon Billington, affirmed 23 March 2016.

14. A grant limited to an executor’s use and benefit has been characterised as a grant which is equivalent to a general grant of probate.[38]  While instructive, this characterisation does not eliminate the requirement to apply for a second grant of administration if the defendant was to die before the completion of the administration of the deceased’s estate.  The Court has received consents from the plaintiff’s two brothers.[39]  A fresh grant of letters of administration with the will annexed upon the death of the defendant would be of no greater benefit to the estate than a general grant to the plaintiff.  There is no doubt that the estate will suffer considerable expense and inconvenience if the defendant were to die leaving a portion of the estate unadministered.  Further, the will of the deceased is clear in appointing the plaintiff and his brothers as executors and beneficiaries upon the death of the defendant. 

    [38]   In the Goods of Frengley [1915] 2 Ir R 1.

    [39] Exhibit P2, affidavit of Jonathon Billington, affirmed 23 March 2016 at [37].

15. The Court has before it evidence that the executor is suffering from a degenerative, irrecoverable disease.  He is elderly and has previously suffered a stroke and a heart attack.  There can be no doubt that, having regard to the evidence before the Court, the executor is incapable of managing his own affairs or the affairs of others.  There is no prospect of recovery. 

16. Having regard to the plaintiff’s role in administering the estate and managing the affairs of the deceased and the defendant, the clear terms of the will; the defendant’s degenerating physical and mental health and the expense of the estate in obtaining a second grant, I consider it appropriate that the executor is passed over and letters of administration with the will annexed be granted to the plaintiff.

17. Accordingly, it is unnecessary to consider the alternative orders sought by the plaintiff.

    Application to avoid transfer to public trustee

18. The plaintiff also makes an application pursuant to s 67 of the Act for an order dispensing with the requirement to pay over money to the Public Trustee in accordance with s 65 of the Act.

19. The estate has not yet been administered.  It contains monies and some personal effects.[40]

    [40]   Exhibit P3, affidavit of assets and liabilities.

20. The plaintiff proposes that rather than pay the net amount of the defendant’s interest to the Public Trustee, that all of the estate be transferred to the administrator and distributed in entirety to the defendant. 

    The legislative scheme

21. Section 65 of the Act requires the administrator to deliver property held on behalf of a beneficiary who is not sui juris to the Public Trustee. Section 65 provides:

    Administrator to pay over money and deliver property to Public Trustee

    (1)Every administrator who is possessed of or entitled to any property within this State, whether personal or real, belonging to any person who—

    (a)     is not sui juris, or

    (b)     is not resident in this State, and has no duly authorised agent or attorney therein:

    shall deliver, convey, or transfer such property to the Public Trustee immediately after the expiration of one year from the date of the death of the intestate or testator, or within six months after such sooner time as the same or such portion thereof as is available for that purpose, has been sold, realised, collected, or got in.

    (2)The Public Trustee shall then administer such property according to law, and in accordance with any will affecting such property.

    (2a)The Public Trustee may, in his discretion, (but subject to the provisions of any will or instrument of trust) realise, or postpone the realisation of, any real or personal property delivered, conveyed or transferred to him under subsection (1) of this section.

    (3)This section shall not apply in any case where the administrator is a limited company incorporated or taken to be incorporated under the Corporations Act 2001 of the Commonwealth, and is acting as administrator in pursuance of any powers granted to it by any Act.

    (4)This section shall not apply to an administrator acting under any probate or administration not granted by the Supreme Court but sealed with the seal of the Supreme Court in pursuance of the provisions of section 17 of this Act.

    (5)Subject to the provisions of any will or instrument of trust, the Public Trustee may, if he is satisfied that it will be advantageous to the beneficiaries, authorise the sale of any trust property, not exceeding four thousand dollars in value, to the administrator, or to the administrator conjointly with any other person, notwithstanding that the property has not been offered for sale by public auction or otherwise.

22. Section 67(1) provides a dispensing power in the following terms:

    (1)A Judge may, on being satisfied by affidavit that it is beneficial or expedient so to do, order—

    (a) that any administrator, or proposed administrator, shall not be bound by section 65; or

    (b) that any administrator, or proposed administrator, shall not be bound by the said section 65 until after a certain time to be mentioned in the order.

23. Section 67 provides that a judge may, being satisfied that it is “beneficial or expedient to do so”, order that an administrator not be bound by s 65. The plaintiff submits that an order should be made that he not be bound by s 65 of the Act, as the protection afforded by s 65 to a beneficiary who is not sui juris, requiring an administrator to pay the funds to the public trustee, is not required in this matter.  

24. Section 65 seeks to protect the person, where an administrator, not an executor, has been appointed by the court to administer an estate where the beneficiary is not sui juris. The protection is effected by a requirement that the administrator convey the property due to such a beneficiary to the Public Trustee. In enacting s 67, Parliament conferred on the Court the power to relieve the administrator from the obligation under s 65 when it is “beneficial or expedient so to do”. It is clear that s 65 and s 67 have, at least in part, beneficial and remedial purposes. It is well settled that beneficial and remedial legislation is to be given a liberal construction.[41]

    [41]   IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 12.

25. In In the Estate of Richter (dec’d),[42] Gray J held that the key consideration in deciding an application pursuant to s 65 is whether a beneficiary who is not sui juris is properly protected.  Gray J referred to the decision In the Estate of Freebairn[43] where he observed the criterion for determining if a dispensation should be granted is what is “beneficial” or “expedient”.   In Freebairn Besanko J considered an administrator was well qualified to operate the deceased’s farming business which made up the deceased’s estate, having regard to the administrator’s share in various farming equipment and his operation of the farming business previously conducted by the testator. 

    [42] [2011] SASC 124.

    [43] [2005] SASC 497, (2005) 93 SASR 415.

26. In In the Estate of Estall (dec’d)[44] Gray J considered an application pursuant to s 67 where the applicant was an administrator of the deceased’s estate, having received letters of administration with the will annexed for the benefit of the executor, limited to the duration of her incapacity. The applicant was the executor’s daughter and attorney. She managed the executor’s assets and financial affairs. Gray J referred to his judgment in In the Estate of Richter (dec’d) where he held that the key consideration in the determination of a dispensing application was whether a beneficiary who was not sui juris was properly protected.  Gray J considered that the applicant had detailed and ongoing insight and involvement in the financial affairs of the executor.  He weighed this against the commission to be paid if the assets were conveyed to the Public Trustee.  He considered it beneficial to the executor that the funds received by the estate were administered by the applicant.

    [44] [2011] SASC 188.

    Consideration

27. In this case I consider it relevant that the defendant is financially self-sufficient by virtue of his ComSuper pension which is paid fortnightly into his bank account. Upon compliance with s 65, the Public Trustee would administer the estate in accordance with the deceased’s will and transfer it entirely to the defendant, whose financial affairs are managed by the plaintiff and his brothers as his attorneys.[45] I consider it relevant that there are no competing interests to the estate. It is not in the interests of the estate to incur the costs of administration by the Public Trustee where the plaintiff has been acting in the capacity as de facto administrator. The transfer of the estate to the Public Trustee will provide no greater protection than the plaintiff administering the estate. Section 65 serves no useful purpose in circumstances such as these. I would dispense with compliance with s 65. It is beneficial and expedient to do so.

    [45]   Exhibit P4, affidavit of Timothy John Simpson, affirmed on 11 August 2016.

28. I note that such dispensation does not relieve the administrator of the obligation imposed on him by s 56(1) of the Act to deliver to the Public Trustee the statement and account referred to in that subsection.

    Conclusion

29. In these circumstance I consider it appropriate to pass over the executor appointed by the will of the deceased and grant to the plaintiff, letters of administration with the will annexed. 

30. I am satisfied it is both beneficial and expedient to dispense with compliance with s 65.

31. Without relieving the plaintiff of the obligation imposed upon him by s 56(1) of the Administration and Probate Act 1919 (SA) to deliver to the Public Trustee the statement and account referred to in that subsection, I make the orders sought by the plaintiff as follows:

    1The executor appointed in the will of the deceased, Christopher Billington, be passed over. 

    2Grant to Jonathan Billington, son of the deceased, letters of administration with the will annexed. 

    3An order dispensing with the requirement for the plaintiff to comply with s 65 of the Administration and Probate Act 1919 (SA) pursuant to s 67 of the Act with respect to the interest in the estate of the deceased of Christopher Billington.

    4Within 14 days of these reasons being published, the plaintiff is to serve a copy of these reasons and orders on the Public Trustee. 

    5The plaintiff’s costs of and incidental to the proceedings be paid out of the estate.