In the Estate of CHARLES ALEXANDER ROBERTS (DECEASED) - [2012] SASC 138

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
In the Estate of CHARLES ALEXANDER ROBERTS (DECEASED)
[2012] SASC 138
Judgment of The Honourable Justice Stanley
17 August 2012
SUCCESSION - EXECUTORS AND ADMINISTRATORS - OTHER MATTERS
Application pursuant to section 67 of the Administration and Probate Act 1919 (SA) by the administrator of a deceased's estate for an order dispensing with requirements to pay over money to the Public Trustee in accordance with section 67 of the Act - applicant obtained order for letters of administration of the estate of the deceased, the applicant's father, with the will annexed for the use and benefit of the universal devisee and legatee under the will, the applicant's mother.
Held: Application granted. Beneficiaries of the estate properly protected - beneficial or expedient to make order dispensing with obligation on part of applicant to comply with requirements of section 65.
Administration and Probate Act 1919 (SA) s 31, s 56, s 65, s 67, referred to.
IW v City of Perth (1997) 191 CLR 1; In the Estate of Freebairn (2005) 93 SASR 413; In the Estate of Richter (Deceased) [2011] SASC 124, discussed.
In the Estate of Raymond Charles Estall (Deceased) [2011] SASC 188, considered.

In the Estate of CHARLES ALEXANDER ROBERTS (DECEASED)
[2012] SASC 138
STANLEY J:
Introduction

This is an application pursuant to s 67 of the Administration and Probate Act 1919 (SA) (“the Act”) by the administrator of a deceased’s estate for an order dispensing with the requirements to pay over money to the Public Trustee in accordance with s 65 of the Act. Section 65 requires an administrator to deliver property held on behalf of a beneficiary who is not sui juris to the Public Trustee.
Charles Alexander Roberts (“the deceased”) died on 11 November 2010. He was survived by his wife, Norma Betty Roberts (“Norma”), and three adult children, the applicant David Charles Roberts (“the applicant”), Kathryn Norma Taylor (“Kathryn”) and Diane Elizabeth Roberts (“Diane”). The applicant, Kathryn and Diane are the only children of Norma. The will of the deceased appointed Norma as his sole executor and also made her the universal devisee and legatee. The will further provided that in circumstances where Norma predeceased the deceased (which did not occur), then he appointed the applicant and Kathryn his executors and divided his entire estate between the applicant, Kathryn and Diane.
Norma suffers from dementia. She is unable to administer the estate. Accordingly, she was unable to take the grant of probate. The applicant, with the support and consent of Kathryn and Diane, applied for and received in Norma’s favour an order for letters of administration of the estate of the deceased with the will annexed for the use and benefit of Norma during her incapacity. The grant of letters of administration was made on 17 January 2012. By affidavit sworn by the applicant on 26 June 2012, he deposed to the facts giving rise to the within application.
By a grant dated 27 October 1997 the applicant and Kathryn were appointed Norma’s attorneys pursuant to an enduring power of attorney. That grant has not been revoked subsequently. The applicant has tended to the day-to-day administration of his mother’s financial affairs since March 2007 due to her incapacity. He is, and has been since 2007 the signatory to Norma and the deceased’s bank accounts.
The assets of Norma consist of a residential security bond at St Martin’s Aged Care Facility (“St Martin’s”), bank savings of $9,800 and a term deposit of $50,000.
On 16 August 2011 an order was made by the Registrar of Probates that letters of administration with the will annexed of the deceased be granted to the applicant. The net estate of the deceased disclosed in the statement of assets and liabilities records a value of $165,051.27. The only significant asset of the estate, the accommodation bond due to the deceased from St Martin’s, has been collected by the applicant and the proceeds are held in the trust account of his solicitors.
The legislative scheme
The applicants seek an order under s 67 of the Act that they not be bound by s 65 of the Act, which section relates to the duty of the administrator of the estate to pay over money and deliver property belonging to a person who is not sui juris to the Public Trustee after a certain period of time. Section 65 provides:
65—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.
Section 67(1) provides a dispensing power and is relevantly in the following terms:
67—Judge may dispense wholly or partially with compliance with section 65
(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.
As is apparent, s 67 provides that a judge may, being satisfied that it is “beneficial and expedient so to do”, order that an administrator not be bound by s 65. The applicants contend that an order should be made that they 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 the circumstances of this matter. That application is not opposed by the Public Trustee. Before returning to address this contention and the merits of the application, it is appropriate to say something about the legislative scheme concerning the relevant provisions of the Act.
Section 65 seeks to protect a person where an administrator, not an executor, has been appointed by the Court to administer an estate where a beneficiary is not sui juris. The protection is effected by obligating the administrator to convey the property due to such a beneficiary to the Public Trustee. In enacting s 67 of the Act, Parliament conferred on the Court the power to relieve the administrator from the obligation under s 65 when it is “beneficial and expedient so to do”.
It is clear that s 65 has, at least in part, a beneficial and remedial purpose. It is settled that beneficial and remedial legislation is to be interpreted as widely as its terms permit.
In IW v City of Perth,[1] Brennan CJ and McHugh J said in a joint judgment:[2]
[It is a] rule of construction that beneficial and remedial legislation … is to be given a liberal construction. It is to be given “a fair, large and liberal” interpretation rather than one which is “literal or technical”. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.
(Footnotes omitted)
[1] (1997) 191 CLR 1.
[2] (1997) 191 CLR 1 at 12.
Section 65 has been considered in two decisions of this Court in In the Estate of Freebairn[3] and In the Estate of Richter (Deceased).[4]
[3] (2005) 93 SASR 415.
[4] [2011] SASC 124.
In Freebairn[5] and in Richter,[6] the Court considered the meaning of the phrase “beneficial or expedient”.
[5] (2005) 93 SASR 415.
[6] [2011] SASC 124.
In Freebairn, Besanko J concluded that the expression required a careful consideration of the facts of the particular case. The important consideration is the due and proper administration of the estate. That was in the context of an application pursuant to s 31(10) of the Act for an order dispensing with the requirement that an administrator provide a surety in accordance with the obligation under s 31(1) of the Act.
In Richter, Gray J, after analysing Freebairn, concluded that there are important differences between the use of the expression as it appears in different places in the Act. Accordingly, s 65 permitted the court to contemplate considerations other than the due administration of the estate. His Honour concluded that on an application pursuant to s 65 the key consideration is whether a beneficiary who is not sui juris is properly protected. This Court has subsequently followed the same approach in In the Estate of Raymond Charles Estall (Deceased).[7]
[7] [2011] SASC 188.
Consideration
The applicant is employed as a nursing management facilitator by the Women’s and Children’s Hospital. He has been managing Norma’s financial affairs since March 2007.
Norma executed her own last will and testament on 27 October 1997 whereby she appointed the applicant and Kathryn as executors in the event she survived her husband, and declared the deceased the universal devisee and legatee of her estate unless he did not survive her, in which event her estate is to be divided equally between the applicant, Kathryn and Diane. Since the death of the deceased, Norma has not remarried nor does she have a putative spouse, nor, by reason of her mental incapacity, is she able to execute a further will.
Kathryn and Diane have consented to the within application and generally for the applicant to conduct the financial affairs of Norma in her personal capacity and as the universal devisee and legatee to the deceased’s estate.
Norma receives a fortnightly income of $850.44 from Centrelink and bank interest. She has no liabilities and modest expenses, including her board at St Martin’s of $632.52 each fortnight, medication and medical expenses of $17 each month, and miscellaneous personal expenses of approximately $40 per week. As her income exceeds her expenses, her income is sufficient to meet her needs. Those needs are unlikely to significantly increase other than her medical expenses as she ages and her health deteriorates.
The applicant has a net income of more than $90,000 per annum, and owns residential real estate valued at $530,000. He has minimal debts and liabilities. I am satisfied he is financially secure.
All of the work undertaken by the applicant in managing Norma’s financial affairs has been done without charge or payment of a fee.
I am satisfied that if an order is made as sought by the applicant, Norma’s affairs will continue to be managed by him in a competent manner without additional cost to Norma.
On the other hand, if an order is not made and the property of the estate currently under administration is transferred to the Public Trustee for future management and administration, it will be subject to commission charged by the Public Trustee for the performance of this function together with a commission taken by the Public Trustee on the income received from the investment of funds comprising the estate.
The applicant indicates that he understands that, if an order is made as sought, he would be obliged to lodge an administration account with Public Trustee pursuant to s 56 of the Act. I am satisfied he will do so.
I note that the application is not opposed by the Public Trustee.
In all these circumstances, I am satisfied that by making the orders sought, Norma, as the beneficiary of the deceased’s estate, will be properly protected. It would be beneficial to the interests of Norma and expedient that the funds due to Norma be joined with her funds administered by the applicant pursuant to his appointment as Norma’s attorney jointly with Kathryn.
Conclusion
Accordingly, I make an order dispensing with the obligation on the part of the applicant to comply with the requirements of s 65 of the Act.