In the Estate of FREEBAIRN, DECEASED

[2005] SASC 497

SUPREME COURT OF SOUTH AUSTRALIA

(Testamentary Causes Jurisdiction: Application)

In the Estate of FREEBAIRN, DECEASED

Judgment of The Honourable Justice Besanko

22 December 2005

SUCCESSION - EXECUTORS AND ADMINISTRATORS

Nominated executor of testator’s estate not sui juris – administrator appointed for use and benefit of nominated executor during her incapacity – nominated executor mother of testator and administrator – administrator brother of testator – nominated executor entitled to testator’s estate under will – administrator entitled to nominated executor’s estate on intestacy – administrator applied for dispensation from first, requirement to provide administration guarantee pursuant to Administration and Probate Act 1919, s 31(1) and Probate Rules 2004, r 49.01, and secondly, requirement to deliver property to Public Trustee pursuant to Administration and Probate Act 1919, s 65 – no financial institution offering administration guarantees – Public Trustee willing to abide by decision of court.

Held, granting application – in circumstances, beneficial and expedient to dispense with statutory requirements – order made pursuant to Administration and Probate Act 1919, s 31(10) and Probate Rules 2004, r 49.08 dispensing with requirement to provide administration guarantee – further, order made pursuant to Administration and Probate Act 1919, s 67 that administrator not be bound by s 65 of that Act.

Probate Rules 2004 rr 44, 49; Administration and Probate Act 1919 ss 23, 31, 56, 65, 66, 67, 72G; Administration and Probate (Administration Guarantees) Amendment Act 2003 .; Inheritance (Family Provision) Act 1972 ., referred to.
In the Goods of Locke [1895] P 68; In the Goods of Galbraith [1951] P 422; Riddle v Riddle (1951) 85 CLR 202; Estate J (deceased) (1999) 204 LSJS 205; In the Estate of Sopru, deceased (1992) 165 LSJS 133, considered.

In the Estate of FREEBAIRN, DECEASED
[2005] SASC 497

Testamentary Causes Jurisdiction

1. BESANKO J         This is a summons issued on 27 May 2005 in the testamentary causes jurisdiction of this Court.  Nicholas William Youl Freebairn died on 29 October 2004.  I will refer to him as the testator.  He left a will dated 24 January 1980 in which he appointed his mother, Delsie Audrey Maureen Freebairn, the sole executrix and trustee of his will should she survive him for a period of 28 days.  Except for the testator, I will refer to the parties by their first names.  Delsie survived the testator and is still alive today.  However, she is not sui juris by reason of mental incompetence.  In his will, the testator nominated his brother, Bruce Archibald Neville Freebairn, the executor and trustee of his will in the event Delsie did not survive him for a period of 28 days. 

2. The testator left his estate to Delsie.

3. Delsie’s mental condition led to an order made by the Registrar of Probates on 1 February 2005 that letters of administration with the will annexed be granted to Bruce for the use and benefit of Delsie during her incapacity.  That order was made under r 44.01 of the Probate Rules 2004, and is the appropriate order in circumstances where the nominated executor is not mentally capable of performing the duties of the office: In the Goods of Locke [1895] P 68; Williams on Executors and Administrators (14^th ed, 1990), Chapter 1 [9]).  Ordinarily, a limited order is made, although there may be circumstances in which the court considers it appropriate to make a general order: In the Goods of Galbraith [1951] P 422.

4. The order made by the Registrar and Delsie’s entitlement to the testator’s estate triggered two legal requirements; namely, that Bruce provide an administration guarantee or surety (Administration and Probate Act 1919 (“APA”), s 31(1) and Probate Rules 2004, r 49.01) and that he transfer or convey the property to which Delsie is entitled under the will of the testator to the Public Trustee within one year from the date of the death of the testator (APA, s 65).

5. The summons before me has been issued by Bruce and he seeks (relevantly) the following orders:

   1That Bruce Archibald Neville Freebairn of Owen in the State of South Australia, farmer, be appointed administrator of the estate of the deceased and that pursuant to s 31(10) of the Administration and Probate Act 1919 a grant of letters of administration with the will annexed be issued to him without any administration guarantee being given.

   2That the applicant as administrator be not bound by s 65 of the Administration and Probate Act 1919.

6. The application in paragraph 1 of the summons requires some comment. Bruce has already been granted a limited or special form of administration. He is not seeking a general order for administration but rather, in relation to the order for a grant of administration already made, he seeks a dispensation from the requirement to provide an administration guarantee and from the obligation to comply with s 65 of the APA.

   The facts

7. The testator was a farmer and grazier at Owen in the State of South Australia.  Bruce was his only sibling.  Their father died on 13 September 1969.  He was a farmer and he left his farm at Owen to Delsie for life or re-marriage and to the testator and Bruce in remainder.  Delsie subsequently married her late husband’s cousin, Melville Morrison Freebairn, and the farm passed to the testator and Bruce.  Under a deed of family arrangement, the testator and Bruce each took over a part of their father’s farm.

8. There was no issue of the marriage of Melville and Delsie.  Melville died on 16 April 1976.  He owned land at Owen at the date of his death.  That land was sold and the testator, through Melville Park Nominees Pty Ltd (“Melville”) as trustee of the Nicholas Freebairn Family Trust, purchased some of that land.  Delsie received one-half of Melville’s estate.

9. The testator did not marry, did not have a putative spouse and did not have children.  He left his estate to Delsie upon condition that she survived him for a period of 28 days.

10. Bruce is 62 years of age and has been a farmer since 1960.  He is married and has two sons, aged 34 and 30 years, respectively.  He has conducted the farming operations of the testator since his death.  This has included arranging for crops grown by the testator to be harvested and arranging a loan with the National Australia Bank in his name to pay expenses and to repay all of the unsecured liabilities other than the liability to the Nicholas Freebairn Family Trust.

11. Delsie is 85 years of age and she resides at the Hamley Bridge Memorial Hospital at Hamley Bridge in South Australia.  The medical evidence before me is to the effect that she suffers from dementia of the Alzheimer type and she is incapable of arranging her affairs.  She has been a resident of the local secure dementia unit since 10 November 2003.  Although it is not expressly said, I gather that it is most unlikely she will recover.

12. Delsie’s estate consists of a house property at Somerton Park in South Australia, a bank account, shares, an accommodation bond with the Hamley Bridge Hospital and loan accounts with the Nicholas Freebairn Family Trust.  Delsie owes the sum of $35,708 to NWY Freebairn and Co.  Bruce visits Delsie weekly and manages her finances.  Her financial needs at the present time are limited and clearly defined.  They are set out in Bruce’s affidavit and it is not necessary for me to set out the details.

13. Delsie executed a will on 9 May 1986 and Bruce has sworn that he believes that this is the last will she executed.  Under her will, Delsie appoints the testator and Bruce the executors of her will, and, after making particular provision for the disposition of a house property at Somerton Park in the State of South Australia, she gives her residuary estate to the testator.  Since executing her will, Delsie has not remarried, nor does she have a putative spouse.  By reason of her mental incapacity, she is not capable of executing another will.  In those circumstances, Bruce, as her only living child, is the only person entitled to share in her estate:  APA, s 72G. On 19 July 2000 Delsie granted Bruce and the testator an enduring power of attorney that, to Bruce’s knowledge, remains current and has not been revoked.

14. To summarise to this point: Delsie is the person entitled to a grant of probate of the testator’s estate, but she is not mentally competent to take up and perform the office of executor.  Delsie is the beneficiary of the testator’s estate.  As circumstances presently stand, upon Delsie’s death Bruce will become entitled to her estate, and that will include the testator’s estate.

15. The testator left a large estate, consisting of a farm and other assets.  The farm comprises eight parcels of land registered in the name of Melville as trustee of the Nicholas Freebairn Family Trust and one parcel of land registered in his name.  The Valuer-General’s valuation of the nine parcels of land is $2,615,000.  For present purposes, it is sufficient to note that the beneficiaries of the Nicholas Freebairn Family Trust are Delsie and her children.

16. There are two issued shares in Melville, one held by the testator and one held by Delsie.  Article 88 provides that the office of a director becomes vacant if the director becomes of unsound mind.  Bruce believes Delsie is no longer a director of the company because she is of unsound mind, but that until the testator’s share is transmitted to him and a general meeting of the company is held, at which new directors are appointed, the affairs of the company are effectively frozen. 

17. Details of the financial operations of the company and the ownership of farming implements, plant and equipment, and growing crops were put before me.  The testator and his company had financial arrangements with the National Australia Bank and details of those arrangements were also put before me.  It is not necessary for me to set out the details in relation to either of those matters.

18. Bruce estimates that the total gross value of the testator’s estate is $1,520,851.82.  He estimates that the gross value of the estate in South Australia is approximately $888,718.59, consisting mainly of land at Owen, crops growing, farming implements, plant and equipment and listed company shares.  The assets of the estate include a debt owed by the Nicholas Freebairn Family Trust to the testator ($162,411), which Bruce says is more than offset by a debt owed by the testator to the Trust ($438,246).  Details of the testator’s share portfolio were also put before me, but, again, it is not necessary for me to set out the details.  The liabilities of the testator’s estate consist of secured and unsecured liabilities.  The secured liabilities comprise debts to the National Australia Bank secured over land and debts to Macquarie Bank Limited secured over listed shares.  Other than the debt to the Nicholas Freebairn Family Trust of $438,246, the unsecured liabilities have been repaid.

    The orders sought in the summons

    1.     Dispensing with the requirement to provide a surety

19. Section 31 of the APA relevantly provides:

    (1)    A person to whom administration is granted must provide a surety in accordance with this section if—

    (a)               the person is not resident in this State; or

    (b)the person has any legal or equitable claim against, or interest in, the estate of the deceased arising from a liability incurred by the deceased before his or her death; or

    (c)any person who is not sui juris is entitled to participate in the distribution of the estate; or

    (d)the Court is of the opinion that in the circumstances of the case a surety is required.

    (2)     The surety must guarantee to make good, subject to this section, any loss that a person interested in the administration of the South Australian estate of the deceased may suffer in consequence of a breach by the administrator of his or her duties in administering the South Australian estate.

    (3)     The maximum liability of a surety under a guarantee given for the purposes of this section is—

    (a)the amount under which the South Australian estate of the deceased is sworn; or

    (b)if the Court, on application, orders a lesser amount, the lesser amount.

    …

    (6)               A guarantee required under this section operates for the benefit of every person interested in the administration of the South Australian estate as if the guarantee were contained in a deed to which the surety and every such person are parties (and, where there are two or more sureties, as if they had bound themselves jointly and severally).

    …

    (9)          This section does not apply to—

    (a)               the Public Trustee; or

    (b)               any other agency or instrumentality of the Crown; or

    (c)               a trustee company under the Trustee Companies Act 1988.

    (10)       The Court may, if satisfied that it is beneficial or expedient to do so, dispense with the requirement to provide a surety.

    (11)       An order under subsection (10) may be obtained ex parte on the application of the person entitled to obtain administration.

    (12)       Without limiting the effect of subsection (10), the Court may, if administration is granted to two or more persons and the Court is satisfied that it is beneficial or expedient to do so, dispense with the requirement to provide a surety.

20. There are two dispensing powers in the section, namely ss 31(10) and (12). This application seeks to invoke the power in s 31(10).

21. In this case, an administration guarantee is required for two reasons. First, under s 31(1)(c) of the APA, an administration guarantee is required because Delsie is a person who is not sui juris and who is entitled to participate in the distribution of the testator’s estate.  Secondly, an administration guarantee under r 49.01 of the Probate Rules 2004 is required, because letters of administration have been granted to Bruce under r 44.01 for the use and benefit of Delsie, who is, by reason of mental incapacity, incapable of managing her affairs.

22. The guarantee is in effect a guarantee against the maladministration of the estate in South Australia.  It is a guarantee against a breach by the administrator of his or her duties in administering the estate.  The cases in which a guarantee is required are cases where the estate is vulnerable in the sense that there is an increased risk of maladministration or an increased difficulty in recovery should there be maladministration.  The guarantee provides an additional assurance of the due and proper administration of the estate and an additional remedy should there be maladministration.  The Probate Rules 2004 contain requirements in relation to the guarantee: r 49.02.

23. The court is given the power to reduce the maximum liability of a surety under a guarantee pursuant to s 31(3). It is also given the power to dispense with the requirement to provide a surety if it is beneficial or expedient to do so (s 31(10), and see also r 49.08 of the Probate Rules 2004) and, without limiting that power, it may, if administration is granted to two or more persons and the court is satisfied that it is beneficial or expedient to do so, dispense with the requirement to provide a surety (s 31(12)). Under s 23 of the APA, which formed part of amendments made in 2003, the court has the power to grant administration to more than one person. Presumably, the fact of two or more administrators lessens the risk of maladministration and increases the chances of recovery should there be maladministration. It is but one circumstance in which the court may dispense with the requirement to provide a surety. It is expressly said in s 31(12) that it in no way limits the general power of the court to dispense with the requirement to provide a surety if it is beneficial or expedient to do so.

24. The criterion in s 31(10) of the APA is what is “beneficial” or “expedient”.  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”.

25. 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.  If the particular circumstances of the case suggest that there is a reduced risk of maladministration or less difficulty is likely to be encountered in recovering loss and damage, should there be maladministration, and there are disadvantages or detriments associated with the provision of a guarantee, then the court may form the view that it is beneficial or expedient to dispense with the requirement of a guarantee.

26. I am not aware of any authorities on s 31. The section in its present form came into effect on 1 March 2005 and was part of amendments made in 2003 pursuant to the Administration and Probate (Administration Guarantees) Amendment Act 2003, which repealed the then ss 31, 32 and 33 of the APA. I will refer to the amendments as “the 2003 amendments”. Prior to the 2003 amendments, ss 31, 32 and 33 of the APA were in the following terms:

    31.     (1)     A person to whom administration is granted and who is required to enter into an administration bond under subsection (2) of this section, shall enter into a bond with the Public Trustee, with one or more sureties, conditioned upon –

    (a)     duly getting in and administering the estate of the deceased;

    (b)     the delivery by the administrator at the office of the Public Trustee, within six months from the date on which administration was granted, or such extended time as the Public Trustee upon the application of the administrator may allow, of a statement and account, verified by the administrator’s declaration, of all the estate of the deceased, and of his administration thereof;

    (c)     the delivery by the administrator to the Public Trustee of an account of his administration of the estate, verified by his declaration, whenever ordered by the Court to give such an account;

    and

    (d)     the due performance by him of all acts required of him under this Act.

    (2)     Subject to subsection (3) of this section, a person to whom administration is granted is required to enter into an administration bond if –

    (a)he is not resident in this State;

    (b)he has any legal or equitable claim against, or interest in, the estate of the deceased arising from a liability incurred by the deceased before his death;

    (c)any person who is not sui juris is entitled to participate in the distribution of the estate;

    or

    (d)the Court is of the opinion that in the circumstances of the case an administration bond should be required.

    (3)     Notwithstanding the provisions of subsection (2) of this section no administration bond shall be required of –

    (a)     any agency or instrumentality of the Crown;

    (b)     the Public Trustee;

    or

    (c)any body corporate authorized by a special Act to administer the estates of deceased persons.

    32.     Such bond shall be in a penalty of the amount under which the estate of the deceased is sworn; but the Court may reduce the amount of such penalty in any case, and may also order that more bonds than one be given, so as to limit the liability of any surety to such amount as to the Court seems reasonable.

    33.     (1)     A Judge may, upon being satisfied by affidavit that it is beneficial or expedient so to do, order that administration issue without any administration bond being given.

    (2)     Such order may be obtained ex parte on the application of the person entitled to obtain administration.

1. Before a previous amendment to s 31 made in 1978, a person granted administration was required to give a bond to the Public Trustee with one or more sureties in every case. The 1978 amendment limited the requirement to enter into an administration bond to the four cases identified in s 31(2) as it stood prior to the 2003 amendments, which are the same as the four cases identified in s 31(1) in its present form. Under the relevant sections before the 2003 amendments, the bond was to be in a penalty of the amount under which the estate of the deceased was sworn. There was power in the court to reduce the amount of such penalty (s 32) and there was power in the court, where it was satisfied it was beneficial or expedient so to do, to order that administration issue without any administration bond being given (s 33). In Estate J (deceased) (1999) 204 LSJS 205, Williams J expressed the view that, although not expressly provided for in the sections, there was by implication a power in the court to dispense with the requirement for one or more sureties. I respectfully agree with that view.

2. In In the Estate of Sopru, deceased (1992) 165 LSJS 133 (“Sopru”), Legoe J considered the section before the 2003 amendments.  He referred to the Law Reform Committee’s 22^nd Report of 1972, which he said led to the amendment in 1978.  The Law Reform Committee had there reported:

   In Australia and England the Administration of Bond achieves four purposes:-

   (a)     It repeats, albeit in vague and general terms, the duties of the administrator;

   (b)It affords an aggrieved creditor or beneficiary an additional remedy against a defaulting administrator;

   (c)Where there are sureties it affords an aggrieved creditor or beneficiary a remedy against the sureties in the event of default by the administrator;

   (d)In the case of a grant to a creditor as such it is used as a device to exclude the administrator’s rights of retainer and preference.

   Legoe J referred to the abolition of bonds in England and elsewhere.  He then considered the application before him to dispense with the bond, to reduce the penalty and to dispense with one or both of the sureties.  It is clear that he paid close attention to the particular facts of the case before him.  In the circumstances of that case, Legoe J found that no beneficial reason had been established for dispensing with the bond; nor, in his opinion, was it expedient to do so.  Those circumstances included the fact that there were children beneficiaries, who were unable to give their consent, and that the applicant had a substantial interest in one of the principal assets of the estate.

3. In Estate J (deceased) (supra), Williams J considered an application under the relevant sections before the 2003 amendments to dispense with a surety for an administration bond.  He considered the particular facts of the case before him and reached the conclusion that the interests of the infant beneficiaries in that case would be sufficiently protected by the engagement of an independent investigating accountant who would be required to provide periodic reports to the Court and the Public Trustee.

4. In this case, I have considered the Second Reading Speech on the introduction of the 2003 amendments.  I may have regard to that to identify the mischief the amendments were designed to remedy.  The Attorney-General referred to the move away from administration bonds in other jurisdictions and the fact that, owing to changes in the insurance market in South Australia, there was no insurer trading in South Australia willing to act as surety for administration bonds.  The Attorney-General also referred to the expediency of appointing two administrators to guard against maladministration in lieu of requiring an administration guarantee.

5. In my opinion, in the circumstances of this case, it is beneficial or expedient to dispense with the requirement to provide a surety.  Bruce has sworn that he understands no company offers administration guarantees, and he knows of no person who will provide a surety for the amount of the South Australian estate of the deceased or for a lesser amount, other than his wife.  That is supported by evidence from Bruce’s solicitor to the effect that she has contacted various financial institutions and none of them offer security guarantees for administrators of deceased estates.  Bruce believes that unless the requirement for the provision of a surety is dispensed with, the administration of the estate cannot proceed. 

6. As against these considerations, I must have regard to who might suffer in the event of the maladministration of the estate.  On the evidence put before me, I am satisfied that the secured creditors, National Australia Bank Limited and Macquarie Bank Limited, are adequately protected by the security they have over land and listed shares, respectively.  Other than the Nicholas Freebairn Family Trust, the unsecured creditors have been paid.  The beneficiaries of that trust are Delsie and Bruce.  Delsie is the person beneficially entitled to the testator’s estate.  Under the Inheritance (Family Provision) Act 1972, the only potential claimants are Delsie and Bruce.  It is clear that the testator trusted Bruce because he appointed Bruce his “reserve” executor.  It is clear Delsie also trusts Bruce because he is one of the two executors nominated in her will and she gave him an enduring power of attorney.  For some time now, Bruce has been managing Delsie’s affairs and, as I have said, her financial needs at the present time are limited and clearly defined.

7. In addition to these matters, as things presently stand, it is very unlikely that Delsie will make a further will, and Bruce will become entitled to her estate, and, therefore, the testator’s estate, under the intestacy provisions of the APA.  Bruce has a significant financial interest in the due and proper administration of the testator’s estate and that fact significantly reduces the risk of maladministration.  In many cases it will be appropriate to appoint two or more administrators in lieu of requiring an administration guarantee.  For the reasons I have given, I do not think that is necessary in this case.

8. I will make an order pursuant to s 31(10) and the Probate Rules 2004 dispensing with the requirement to provide a surety.

   2. Dispensing with compliance with s 65 of the APA

9. Sections 65, 66 and 67 of the APA provide as follows:

   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.

   66—Effect of delivery etc to Public Trustee

   The delivery, conveyance or transfer of property to the Public Trustee under section 65 has the effect of discharging the administrator and any surety from further responsibility in respect of the property.

   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.

   (2)     The time mentioned in any order made under subdivision (b) of subsection (1) may be extended by a subsequent order.

   (3)     Any order under subsection (1) or (2) may be obtained ex parte on the application of the administrator or proposed administrator.

   (4)     An order under subdivision (a) of subsection (1) may be granted notwithstanding that an order has already been made under subdivision (b) of subsection (1).

   (5)     If the Court so directs, an order under this section has the effect of discharging the administrator and any surety from further responsibility in respect of the property to which the order relates.

   (6)     The Public Trustee, or any person interested, may issue a summons requiring the administrator, or proposed administrator, to appear before a Judge to show cause why any order made under this section should not be set aside, and the Judge may set aside such order, or vary the same, or make such other order as seems to him best.

10. Section 65 operates in this case because an administrator has been appointed as Delsie is not sui juris. I have the power to dispense with the requirement that the testator’s estate be conveyed or transferred to the Public Trustee if I am satisfied that it is beneficial or expedient so to do: s 67(1).

11. Bruce has sworn that after the administration of the estate he believes there will be a sum of approximately $500,000 net to which Delsie is entitled. The Public Trustee charges a commission for performing the functions referred to in s 65, which Bruce believes would be in the order of $13,200, together with a commission based on the income received from the investment of the funds in the estate.

12. One of the orders sought by the applicant in Sopru was that the administratrix not be bound by the provisions of s 65. Legoe J said that the section provides for the protection of minority interests. He said that the jurisdiction appeared to be unique to South Australia. However, in this State, there is no requirement that a grant need be made to more than one administrator where there is a minority interest. In England, if there is a minority or life interest in the estate, whether arising under the will or under any partial intestacy, administration (with will) may not normally be granted to a single individual, but must be granted to a trust corporation (with or without an individual) or to not less than two individuals: Tristram & Coote’s Probate Practice (29^th ed, 2002), [157]. 

13. Again, the criterion for determining if a dispensation should be granted is what is “beneficial” or “expedient”.  In Sopru, the conveyance or transfer of all the property to the Public Trustee would have incurred a considerable amount of conveyancing work and costs.  In that case, the estate consisted of real estate and an air charter company.  Legoe J found that the administratrix was well-qualified to manage and control the company, in which she had a substantial financial interest.  Legoe J said that if all of the assets were transferred to the management and control of the Public Trustee, the Public Trustee would have to contract out the control of the business, and that the only logical person to contract out to would be the applicant herself.  Legoe J also referred to the capital commission and income commission which would be payable to the Public Trustee.  Even though he referred to that as a relevant matter, he considered that it was expedient to make the order because the applicant was capable of continuing to operate the businesses, was especially qualified to do so, and would be able to maintain a reasonably conservative cost structure for the operations.

14. In this case, I think it is beneficial or expedient to dispense with compliance with s 65. Prior to the testator’s death, he and Bruce and Bruce’s wife were 50/50 co-owners of certain farming plant and equipment, which they shared in the operation of their respective farming businesses that were conducted on nearby parcels of land. Since the testator’s death, Bruce has continued the farming operations previously conducted by the testator. He has arranged for crops grown by the testator to be harvested, and he has negotiated a loan facility with the National Australia Bank Limited. Bruce is well‑qualified to conduct the farming business.

15. Bruce and the testator were given an enduring power of attorney by Delsie, and Bruce has been managing her affairs for some time.  For reasons I have already given, in the circumstances, Bruce has a significant financial interest in the due and proper administration of the testator’s estate.

16. The Public Trustee was given notice of this summons. By letter from her solicitors, the Public Trustee said that she had no issue with respect to this matter and would abide the court’s decision as to whether or not s 65 should be dispensed with. The Public Trustee said:

    It is clear that the applicant will receive the ultimate benefit of his brother’s estate, that his mother is self-sufficient from her assets and that the applicant or his family will ultimately benefit under intestacy from his mother’s estate.

17. In all the circumstances, I consider that it is beneficial or expedient to make an order pursuant to s 67 of the APA that Bruce not be bound by s 65.

18. I note that such an order does not relieve the administrator of his obligation under s 56 of the APA.

    Conclusion

19. For these reasons, the following order is appropriate.

    On being satisfied that it is beneficial or expedient to do so but without relieving the applicant of the obligation imposed upon him by s 56(1) of the Administration and Probate Act 1919 to deliver to the Public Trustee the statement and account referred to in the subsection I order that:

    1Upon application being duly made by Bruce Archibald Neville Freebairn for a grant of Letters of Administration of the estate of Nicholas William Youl Freebairn deceased for the use and benefit of Delsie Audrey Maureen Freebairn during her incapacity the said letters of administration with the will annexed do issue without a surety.

    2The applicant be not bound by s 65 of the Administration and Probate Act 1919.

    3An office copy of this order be served upon the Public Trustee 14 days after the grant shall have been sealed and entered.

20. I will hear the applicant as to the other orders sought in the summons.