In the Estate of CHAPPELL (DECEASED) - [2018] SASC 67

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of CHAPPELL (DECEASED)
[2018] SASC 67
Judgment of The Honourable Justice Bampton
23 May 2018
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - JURISDICTION AND DISCRETION OF COURT - SOUTH AUSTRALIA
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF ADMINISTRATION GENERALLY - TO WHOM GRANTED AND WHEN NECESSARY GENERALLY - SOUTH AUSTRALIA
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - ADMINISTRATION WITH WILL ANNEXED - TO WHOM GRANTED
On 7 June 2017, the deceased died, having made a will on 21 March 1997. The deceased appointed her husband as her sole executor and beneficiary. In the event that her husband did not survive her, the deceased appointed one of her three sons and her solicitor as substitute executors and gave the whole of her estate to her children equally.
The deceased’s husband suffers advanced dementia and is subject to a guardianship order made by the South Australian Civil and Administrative Tribunal. As a result of his incapacity, the deceased’s three sons seek orders that he be passed over as executor, and that they be granted letters of administration with the will of the deceased annexed.
An order is also sought dispensing with the requirement to comply with s 65 of the Administration and Probate Act 1919 (SA).
HELD:
1. That the executor named in the will made by the deceased on 21 March 1997 be passed over.
2. That there be a general grant of letters of administration with the will annexed to the deceased’s three sons.
3. That, pursuant to s 67 of the Administration and Probate Act 1919 (SA), the administrators of the deceased’s estate are not bound by s 65 of the same Act.
Guardianship and Administration Act 1993 (SA) s 29; Administration and Probate Act 1919 (SA) s 56(1), s 65, s 67; Supreme Court Act 1935 (SA) s 18; Probate Rules 2015 (SA) r 46, r 63, referred to.
In the Estate of Crane (2005) 93 SASR 198; In the Goods of Loveday [1900] P 154; In the Estate of Stuart (2009) 106 SASR 39; In the Estate of Asimakopolos [2016] SASC 109, considered.

In the Estate of CHAPPELL (DECEASED)
[2018] SASC 67
Testamentary Causes Jurisdiction

BAMPTON J: Maria Anna Katerina Chappell (“Maria”) died on 7 June 2017 having made a will on 21 March 1997 (“the Will”). Maria is survived by her husband John Francis Chappell (“John”) and their four children: Mark John Chappell (“Mark”), James Michael Chappell (“James”), John William Chappell (“John Jnr”) and Catherine Ann Chappell (“Catherine”).
In the Will, Maria appointed John her sole executor and beneficiary. In the event John did not survive Maria by 30 days, Maria appointed Mark and her solicitor, Peter Scragg, as substitute executors and gave the whole of her estate to her children equally.
John survived Maria by 30 days; however, he suffers advanced dementia and is subject to an order made by the South Australian Civil and Administrative Tribunal on 18 March 2016 under s 29 of the Guardianship and Administration Act 1993 (SA) (“the SACAT order”).
Pursuant to that order, Mark, James and John Jnr (“the Chappell brothers”) are appointed John’s legal guardians and authorised to act jointly and severally. It is a condition of that order that the Chappell brothers confer and endeavour to reach agreement about all major decisions relating to John’s health, accommodation, and lifestyle.
The Application
As a result of John’s mental incapacity, the Chappell brothers seek an order that John be passed over as the executor of the Will and that they jointly be appointed administrators of their mother’s estate.
By an amended summons filed on 3 May 2018, the Chappell brothers seek:
1that John be passed over as executor; and
2that there be a grant to the Chappell brothers of letters of administration of Maria’s estate; and
3an order pursuant to s 67(1) of the Administration and Probate Act 1919 (SA) (“the Act”) dispensing with the requirement for the proposed administrators to comply with s 65 with respect to John’s interest in Maria’s estate.
Affidavits filed in support of the application
Rosita Victoria Scragg has sworn an affidavit 14 November 2017 of due execution of the Will. I am satisfied the Will is a valid will.
In a joint affidavit sworn by the Chappell brothers on 8 November 2017, they depose to John being appointed executor of the Will and that as a result of his incapacity he is unable to seek a grant of probate. A copy of the SACAT order is annexed to the affidavit.
In his affidavit sworn on 7 February 2018 and filed in support of the application, John Jnr deposes to making the affidavit on behalf of and as the representative of Mark and James. John Jnr refers to having obtained a report from John’s general practitioner, Dr Rebekah Webb, in relation to John’s mental capacity. Dr Webb’s report is annexed to the affidavit and attaches a letter from Dr Ashwin Shukla, a consultant geriatrician, dated 5 October 2016 and a separation summary from the Queen Elizabeth Hospital dated 24 February 2016. These reports confirm that John suffers a mental incapacity caused by advanced dementia. John Jnr deposes that his sister Catherine, who lives in Germany, has informed Mark, by email dated 22 January 2018, that she agrees to the Chappell brothers making this application on her behalf and to have the Chappell brothers appointed administrators of Maria’s estate. Exhibited to John Jnr’s affidavit is a copy of an email apparently from Catherine stating:
I am perfectly happy for my brothers Mark Chappell, James Chappell and William Chappell to seek orders on my behalf in reference to the application to pass over an executor. I also consent to my said brothers being the administrators of my mother’s Maria Anna Katerina Chappell estate.
The Court’s jurisdiction to pass over an executor
I am satisfied that John lacks, and will not recover, mental capacity to take a grant of probate and administer Maria’s estate. It follows that it is appropriate to invoke the Court’s jurisdiction to pass over an executor pursuant to s 18 of the Supreme Court Act 1935 (SA), and the Act.[1]
[1] In the Estate of Crane (2005) 93 SASR 198.
The substitute executors renounce their entitlement to probate
On 3 May 2018 the Probate Registry received documents dated 1 May 2018 and signed by Mark and Peter Scragg wherein each renounces their “right and title to probate” of the Will.
John Jnr, in a further affidavit sworn on 2 May 2018, deposes that he makes the affidavit with the knowledge and approval of Mark and James in support of their joint application to pass over John as executor of the Will and to be given leave to dispense with requirement to pay over the estate to the Public Trustee in compliance with s 65 of the Act. John Jnr refers to Mark and Peter Scragg having renounced their entitlement to seek probate. He deposes that if John is passed over as executor he, Mark and James jointly seek a grant of letters of administration with the will annexed. He says such a joint grant would give the Chappell brothers an equal say in how their father’s assets will be administered. He explains that as Catherine now resides in Germany she has not sought to be a joint administrator. He says that, as administrators of John’s estate pursuant to the SACAT order, the Chappell brothers are required to manage John’s finances and expenses. Annexed to the affidavit is a copy of a report pertaining to John and Maria’s estates prepared by Scott Tilley, a chartered accountant, for the financial year ending 30 June 2017, which has been submitted to the Public Trustee in accordance with the SACAT order. Copies of a number of bank statements, together with a copy of the statement of assets and liabilities in respect of Maria’s estate, are also annexed to the affidavit.
Rule 46 of the Probate Rules 2015 (SA) provides for grants in cases of mental or physical incapacity limited to period of incapacity. It is evident that John will not regain mental capacity to manage his own affairs. In determining whether to order a limited grant or a general grant pursuant to r 63 of the Probate Rules 2015 (SA), I must bear in mind the need to ensure the due and proper administration of the estate and the protection of those beneficially entitled to the estate.[2] I am satisfied that to ensure the due and proper administration of Maria’s estate that a general grant of letters of administration with the Will annexed should be granted to the Chappell brothers. This will obviate the need to obtain a second grant of administration should John die during the administration.
[2] In the Goods of Loveday [1900] P 154 at 156; In the Estate of Stuart (2009) 106 SASR 39 at 46–47 [23]–[24]; In the Estate of Asimakopoulos [2016] SASC 109 at [23]-[28].
Application to dispense with compliance with s 65 of the Act
Section 65 of the Act obliges administrators possessed of property belonging to a person who is not sui juris to deliver or transfer that property to the Public Trustee. In light of the SACAT order, the Chappell brothers seek an order that they are not bound by s 65 of Act with respect to John’s assets.
John Jnr says that he is aware of and has properly discharged his obligations as administrator of John’s estate and intends to do so in the future. He believes there is no good reason for the Public Trustee to be directly involved, save as to the extent that SACAT order provides. John Jnr holds the view that a greater involvement by the Public Trustee is likely to increase the costs of administration without there being any material benefit or advantage.
Having regard to the SACAT order, it is beneficial and expedient to order pursuant to s 67 of the Act that the proposed administrators shall not be bound by s 65. It is not in the interests of the estate to incur the costs of administration by the Public Trustee where the SACAT order operates. The transfer of the estate to the Public Trustee will provide no greater protection.
Conclusion
I make the following orders, noting Catherine’s consent, that the substitute executors appointed under the Will have renounced their entitlement to probate, and without relieving the administrators of the obligation imposed upon them by s 56(1) of the Act to deliver to the Public Trustee the statement and account prescribed by that section:
1That John Francis Chappell, the executor appointed in the Will of Maria Anna Katerina Chappell, be passed over;
2That there be a general grant of letters of administration with the Will annexed jointly to Mark John Chappell, James Michael Chappell and John William Chappell;
3That, pursuant to s 67 of the Act, Mark John Chappell, James Michael Chappell and John William Chappell as administrators of the estate of Maria Anna Katerina Chappell shall not be bound by s 65 of the of the Act;
4The administrators are to serve a copy of these reasons and orders on the Public Trustee;
5The costs of and incidental to this application be paid out of the estate.