In the Estate of DIXON (DECEASED) - [2019] SASC 87

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of DIXON (DECEASED)
[2019] SASC 87
Judgment of The Honourable Justice Bampton
29 May 2019
SUCCESSION - ADMINISTRATION OF ESTATE - DISTRIBUTION - MATTERS RELATING TO BENEFICIARIES
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - JURISDICTION AND DISCRETION OF COURT - SOUTH AUSTRALIA
Application by administrator seeking an order pursuant to s 67 of the Administration and Probate Act 1919 (SA) dispensing with the requirement to comply with s 65 of the same – where the deceased by his will appointed his wife executor and sole beneficiary of his estate – where applicant adult son of deceased and beneficiary – where beneficiary not sui juris due to advanced dementia – where applicant granted letters of administration with will annexed for the use and benefit of the beneficiary, limited for the period of her incapacity – where s 65 of the Administration and Probate Act 1919 (SA) required that monies be paid to the Public Trustee – where monies paid by applicant’s solicitors directly to beneficiary’s bank account – whether an order pursuant to s 67 of the Administration and Probate Act 1919 (SA) may operate retrospectively.
Held, allowing the application – an order pursuant to s 67 of the Administration and Probate Act 1919 (SA) may operate retrospectively – it is beneficial to order that the applicant not be bound by s 65 of the Administration and Probate Act 1919 (SA).
Administration and Probate Act 1919 (SA) s 65, s 67, referred to.
In the Estate of Estall (Deceased) [2011] SASC 188; In the Estate of Richter (Deceased) (2011) 276 LSJS 324; In the Estate of Freebairn (Deceased) (2005) 93 SASR 415, applied.

In the Estate of DIXON (DECEASED)
[2019] SASC 87
Testamentary Causes Jurisdiction

BAMPTON J: Brian Charles Dixon (“Brian”) died on 30 October 2017. He is survived by his wife, Guelda Frances Dixon (“Guelda”), and their two children, Ian Charles Dixon (“Ian”) and Janet Lesley May (“Janet”). By his will dated 2 July 2004, Brian appointed Guelda his executor and sole beneficiary of his estate.
At the time of his death, Brian and Guelda were living in high level care at Anglicare SA, Grange. In a letter dated 19 December 2017, Dr Louisa Storer, a general practitioner, stated that Guelda has advanced dementia, is unable to make any testamentary decisions, and is unable to act as executor of Brian’s will. Thereafter, Ian made application to the Registrar of Probates for a grant of letters of administration with the will annexed. On 31 May 2018, the Deputy Registrar of Probates granted Ian letters of administration with the will annexed for the use and benefit of Guelda, limited for the period of her incapacity.
Upon completion of the administration of Brian’s estate and payment of his estate liabilities, the sum of $495,177.89 was paid by Ian’s solicitors directly into a bank account in Guelda’s name.
Application pursuant to s 67 of the Administration and Probate Act 1919 (SA)
On 15 March 2019, Ian made application pursuant to s 67 of the Administration and Probate Act 1919 (SA) (“the Act”) seeking an order dispensing with the requirement to comply with s 65 of the Act — which requires that an administrator pay to the Public Trustee any beneficial interest in an estate where a beneficiary lacks capacity or is not resident in the State.
In his first affidavit sworn in support of the application on 7 March 2019, Ian deposes that, following payment of the monies into Guelda’s bank account, he was informed by his solicitor that the monies should have been paid to the Public Trustee pursuant to s 65 of the Act and that the monies were paid into the account by way of an oversight.
Ian’s second affidavit
In his second affidavit sworn on 13 May 2019, Ian deposes that he and Janet acted as attorneys jointly and severally for Brian and for Guelda from July 2013. A copy of Guelda’s enduring power of attorney dated 25 July 2015 appointing Ian and Janet as her attorneys is annexed to Ian’s first affidavit.
Ian explains that, as Janet lives in Melbourne, he took on the responsibility to assist their parents with managing their home and their affairs generally. He explains that from July 2013 to May 2015 the attorney duties performed specifically for his mother were limited as the majority of financial affairs were managed by Brian and Ian assisted when needed.
Ian explains in his affidavit that Brian and Guelda underwent Aged Care Assessment Team assessments in May 2015 which identified them as requiring high level care. Aged care accommodation was secured for the both of them at Anglicare in Grange. Ian says that the assistance that he provided to his parents in the management of their affairs increased as his father became more frail following his move into residential care.
Brian and Guelda’s home had to be sold, together with other assets, in order to realise sufficient funds for their aged care accommodation bonds.
Ian deposes that from September 2015 he and Janet were responsible for the management of the totality of their parents’ financial affairs. Since the death of Brian, Ian and Janet have continued to act for their mother jointly and severally as her attorneys. Ian explains in detail the attorney duties he has undertaken severally, due to Janet living in Melbourne.
Ian states that Janet has taken the lead role in managing Guelda’s health, welfare, and lifestyle issues and regularly travels to Adelaide to visit Guelda. Ian says that he and Janet are in constant communication to ensure Guelda is appropriately cared for and they have agreed upon a division of duties in managing and overseeing all aspects of her life. As a result, Ian says that their mother is living in a safe and secure environment and her assets are protected. Guelda now requires full time care, 24 hours a day, and is unable to walk. Ian deposes that whilst she can communicate, she barely recognises him or Janet. She has no short-term memory and her moods vary considerably on a day-to-day basis.
Ian provides details of Guelda’s assets in his second affidavit and explains that when Brian died the monies Guelda inherited from his estate were consolidated with her existing funds.
Ian deposes that, on 3 September 2018, he secured a term deposit investment for a fixed term of 10 months at 2.75 percent, retaining a small balance of the consolidated funds which he paid into his mother’s account for payment of her day-to-day expenses and any shortfall in living cost payments to Anglicare SA. The term deposit will mature in July this year, at which time Ian deposes that it will be rolled over on favourable terms and conditions. Ian explains that Guelda has no current liabilities and, since Brian’s death, no longer qualifies for the aged pension.
Ian deposes that since assuming the total management of his parents’ affairs in September 2015 he has prepared regular budgets and spreadsheets on actual income and expenses. Exhibited to his second affidavit is a copy of the most recent spreadsheet he has prepared in respect of Guelda’s financial affairs. Ian deposes that he has always applied himself diligently to the task of financial management of his parents’ affairs and now the financial affairs of Guelda. He asserts that he will continue to ensure that there are sufficient liquid assets available to pay all of Guelda’s living expenses, including but not limited to those payments due and owing to Anglicare SA for Guelda’s ongoing care being in the order of $2,630 per month. Ian deposes that he has always kept detailed records of all financial matters as required in his role as Guelda’s attorney and will continue to do so. Each year that Guelda was in receipt of the aged pension Ian wrote and informed Centrelink of her financial position.
Ian is the managing director and principal consultant of a business he established in 1999, a Fellow of the Australian Institute of Company Directors, and a Fellow of the Institute of Engineers Australia. He has held positions as a senior executive in the South Australian public sector and as an independent director for the Ngaanyatjarra Aboriginal Corporation. Ian deposes that both he and Janet are financially secure and that he will continue to manage Guelda’s financial affairs until her death and appropriately invest and manage investment of all funds received by Guelda as the sole beneficiary of Brian’s estate. He says that he will also regulate and monitor the expenditure of any portion of the funds if required in order to meet payment of Guelda’s ongoing living expenses. Ian states that Janet has informed him that she will continue to manage Guelda’s affairs in exactly the same manner.
Consideration
As Guelda is a beneficiary who lacks capacity, Ian, as administrator of Brian’s will, was required pursuant to s 65 of the Act to pay to Guelda’s beneficial interest in the Brian’s estate to the Public Trustee. Through an oversight, Guelda’s beneficial interest was paid by Ian’s solicitor into her bank account.
The requirement prescribed by s 65 is subject to the dispensing power prescribed in s 67 of the Act, which provides that a judge, upon being satisfied by affidavit evidence that it is beneficial or expedient so to do, may order that an administrator not be bound by s 65. As Gray J said in In the Estate of Estall (Deceased),[1] repeating his statement in In the Estate of Richter (Deceased):[2]
It is clear that section 65 has, at least in part, a beneficial and remedial purpose.[3] It is settled that beneficial and remedial legislation is to be interpreted as widely as its terms permit.[4]
(Footnotes in original)
[1] [2011] SASC 188 at [9].
[2] (2011) 276 LSJS 324 at [15] (“Richter”).
[3]    In In the Estate of Marden [2008] SASC 312 at [14] with respect to this type of statutory provision, [Gray J] observed: “A beneficial or remedial statutory provision is one that gives some benefit to a person and thereby remedies some injustice [Re McComb [1999] 3 VR 485, [22]].”
[4]    In this respect, Brennan CJ and McHugh J in IW v City of Perth (1997) 191 CLR 1 at 12 outlined the approach to be taken to the construction of beneficial or remedial statutory provisions:
In Richter,[5] Gray J considered the meaning of the expression “beneficial or expedient” and repeated the comments made by Besanko J in In the Estate of Freebairn (Deceased):[6]
… As far as the word “expedient” is concerned, that has been said to be a criterion of the widest and most flexible kind: Riddle v Riddle (1951) 85 CLR 202 per Dixon J (as he then was) at 214. In the same case, Williams J said (at 221–222) that the ordinary natural grammatical meaning of “expedient” is “advantageous”, “desirable”, “suitable to the circumstance of the case”.
It seems to me that the criterion requires a careful consideration of the facts of the particular case, and the important consideration is the due and proper administration of the estate.
(Emphasis added [by Gray J])
Gray J continued in Richter:[7]
… There are important differences between the use of the phrase “beneficial so to do” as it appears in various Acts and places in Acts. In particular, it is noteworthy that section 65 of the Administration and Probate Act contemplates the conveying of property when it belongs to a person, which must be after completion of the administration of the estate. Accordingly, the section requires, or at the very least allows, the Court to contemplate considerations other than the due administration of the estate. In my view, the key consideration in the within application is whether a beneficiary who is not sui juris is properly protected.
[5] (2011) 276 LSJS 324 at [16].
[6] (2005) 93 SASR 415 at [24]-[25].
[7] (2011) 276 LSJS 324 at [17].
Accordingly, the overriding consideration in determining whether it is beneficial or expedient to make the order sought by Ian is whether Guelda is protected.
If the monies in Guelda’s bank account were paid to the Public Trustee, there would be a commission charged on a capital basis and an ongoing basis. As submitted by counsel for Ian, it would be in Guelda’s interests for the monies to be received and dealt with in accordance with the rest of her protected estate by Ian and Janet as her attorneys.
Can the dispensing order be made retrospectively?
The s 67 dispensing order sought by Ian is not sought prospectively as the monies have already been distributed to Guelda’s bank account.
Published decisions of this Court to date have considered applications brought by administrators that they not be bound by s 65 in relation to how funds are to be distributed. In In the Estate of Jethava (Deceased),[8] I made a dispensing order in circumstances where the deceased (an Indian national who had been working in South Australia) died intestate in India, owning property in South Australia. The deceased was survived by his wife and infant daughter who returned to India to live following the deceased’s death. The net estate of the deceased was disclosed with a value of $350,601.58. The major asset of the estate was the proceeds of a superannuation account. Letters of administration of the deceased’s estate were granted to the deceased’s widow on 15 May 2015. Following the grant, the proceeds of the superannuation account in the sum of $236,151.90 were paid to the deceased’s widow, as the nominated beneficiary of the account. Thereafter, the deceased’s widow as administrator sought a dispensing order pursuant to s 67 of the Act in respect of the property comprising her infant daughter’s interest in the deceased’s estate which had not been paid to the Public Trustee in accordance with s 65 of the Act. The order sought was not opposed by the Public Trustee. Accordingly, having determined that it was beneficial to do so, I made an order that the administrator not be bound by s 65 in respect of her infant daughter’s beneficial interest in the deceased’s estate that had not been paid to the Public Trustee.
[8] PROGR-15-1893.
Section 67(1) of the Act provides:
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.
Parliament has not specifically stipulated whether the dispensing power may operate retrospectively. As outlined above, the important consideration when applying s 65 and s 67 is whether the beneficiary who is not sui juris is properly protected.[9] The dispensing power of s 67 is necessarily a broad power. It would frustrate the purpose of s 67 if it were read restrictively so as to only allow dispensing orders to operate prospectively.
[9] Richter (2011) 276 LSJS 324 at [17].
In my view, once the Court is satisfied that it is beneficial or expedient to make a dispensing order, the Court may make an order which operates prospectively or retrospectively.
The Public Trustee has been served with the application and does not oppose the order sought.
I am satisfied, having regard to the matters deposed to by Ian, that any breach of s 65 of the Act was made honestly and it has not been to the detriment of Guelda.
I accept the evidence Ian has put before the Court regarding how he has and how he will continue to manage Guelda’s affairs.
Ian has deposed in great detail how he and Janet have both managed their parents’ financial affairs and, following the death of Brian, Guelda’s in particular. It is apparent from the evidence that Ian has intimate and ongoing involvement in Guelda’s affairs. It is clear that Ian understands the responsibilities of attending to the proper management of those affairs. Both Ian and Janet are independently financially secure and have both worked or work in professional capacities. If the balance of Brian’s estate were conveyed to the Public Trustee, a commission would be charged on capital and on income. Ian and Janet, as attorneys, are managing Guelda’s affairs without charge.
It should also be noted that by bestowing powers of attorney on Ian and Janet, Guelda has reposed trust and confidence in her children to administer her affairs.
The due and proper administration of Brian’s estate requires the Court, in determining Ian’s application for a dispensing order, to be satisfied that Guelda, who is not sui juris, is properly protected.
I am satisfied, having regard to matters deposed to by Ian in his affidavits, that Guelda is appropriately protected by making a dispensing order in respect of the monies that have been paid into her bank account.
I am satisfied that it is beneficial to order that Ian not be bound by s 65 of the Act. I make an order pursuant to s 67 dispensing with the obligation on Ian as administrator of Brian’s will to comply with the requirements of s 65 to pay Guelda’s beneficial interest in Brian’s estate to the Public Trustee.

“[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.]
New South Wales v Amery (2006) 230 CLR 174, [138] (Kirby J) citing Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231, 260-261 and Qantas Airways Ltd v Christie (1998) 193 CLR 280, [152].