In the Estate of HELENE JOSEPHINE STORCH (DECEASED)

[2013] SASC 129

SUPREME COURT OF SOUTH AUSTRALIA

(Testamentary Causes Jurisdiction: Application)

In the Estate of HELENE JOSEPHINE STORCH (DECEASED)

[2013] SASC 129

Judgment of The Honourable Justice Gray

7 August 2013

SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - ALTERATION AND REVOCATION OF GRANTS - GENERALLY

SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - ALTERATION AND REVOCATION OF GRANTS - CIRCUMSTANCES - OTHER CASES

Application for order revoking grant of probate – grant of probate of estate of deceased to three daughters of deceased and solicitor – breakdown of relationship between solicitor and daughters of deceased – application by daughters of deceased for revocation of grant of probate and for new grant of probate in favour of daughters of deceased only – whether appropriate to revoke grant in the circumstances – where all executors consent to revocation of grant of probate.

Held:  Application granted – the due and proper administration of the estate is frustrated by the relationship of the executors – previous grant of probate revoked – fresh grant of probate to be granted.

Administration and Probate Act 1919 (SA) s 69; Probate Rules 2004 (SA) r 51, referred to.
In the Estate of Stuart (2009) 106 SASR 39, considered.

In the Estate of HELENE JOSEPHINE STORCH (DECEASED)
[2013] SASC 129

Testamentary Causes Jurisdiction

GRAY J.

1. This is an application seeking an order revoking a grant of probate in respect of the estate of Helene Josephine Storch, the deceased.

2. The deceased died on 29 October 2011.  On 6 September 2012, probate was granted to the deceased’s daughters, Christine Leeora Cederblad, Shelley Louise Wood and Marie Carolyn Annett de Fontenay Coles, as well as to Donald McRae Bentley, a solicitor. 

3. On 4 July 2013, a summons was filed by the daughters of the deceased naming Mr Bentley as the defendant and seeking the following orders:

   The plaintiffs seek general directions from the Court as to the administration of estate of the late Helene Josephine Storch;

   Direct the Defendant use his best endeavours to finalise the Estate of Helene Josephine Storch; or

   Amend the grant to remove the Defendant as an executor;

   Such further or other orders as the Court may think fit.

4. An affidavit of Ms Cederblad sworn on 26 June 2013 was filed in support of the application, together with various annexures.  An affidavit of Mr Bentley sworn 25 July 2013 has also been filed.  In making the findings recorded in these reasons, I have acted on this affidavit evidence.

5. It is apparent that following the grant of probate, there was a breakdown of the relationship between Mr Bentley and the other executors of the deceased’s estate.  Mr Bentley has entered an appearance to the summons and has indicated that he consents to his removal as an executor of the deceased’s estate. 

6. The summons is expressed to be brought pursuant to section 69 of the Administration and Probate Act 1919 (SA) and Rule 51 of the Probate Rules 2004 (SA). Section 69 provides:

   (1)The Public Trustee shall, and any trustee, executor, or administrator may, when in difficulty or doubt, apply to a Judge for advice or direction as to matters connected with the administration of any estate, or the construction of any will, deed, or document.

   (2)Such application may be made either without notice to or upon summons served upon any of the parties interested.

   (3)Any person interested in any estate, who is dissatisfied with the conduct of the Public Trustee in any matter connected with the management or administration thereof, may apply to a Judge by summons to be served upon the Public Trustee to review such conduct.

   (4)A Judge may, upon the hearing of an application under this section, make any order, declaratory or otherwise, that he sees fit as to the administration of the estate, or the construction of the will, deed, or document, which is the subject of the application, and also as to the costs of the application.

   (5)Any such order made in the absence of an interested party shall have the same effect, or be of the same force or validity, so far as regards protection to the Public Trustee, or other trustee, or the executor, or administrator, as if the same had been a decree or order made in an action where all parties concerned were represented.

   (6)The Judge may refer any question of law arising on an application under this section for the opinion of the Supreme Court, or may direct an issue to be tried by, or an action to be instituted in, the Supreme Court.

7. Rule 51 of the Probate Rules provides:

   51.01An application for an order to amend or revoke a grant may be made to the Registrar by affidavit setting out the grounds of the application.

   51.02If the Registrar is satisfied that a grant should be amended or revoked, the Registrar may make an order accordingly:

   Provided that -

   (a)     a grant may be revoked without being called in if it cannot be called in;

   (b)     except in special circumstances no grant shall be revoked or amended under this Rule unless it is on the application or by the consent of the person to whom the grant was made.

8. In In the Estate of Stuart,[1] I considered the question of whether the Court has power to revoke a grant of probate once issued.  After reviewing the relevant authorities, I concluded:[2]

   The Court will not readily revoke a grant of probate when its grant was valid.  Equally however, I have arrived at the view that the Court should not to [sic] allow the proper administration of an estate to continue to be frustrated to a degree such as that in the within matter.  Where the proper administration of the estate is frustrated by, in effect, the dereliction in the duty to administer the estate, the revocation is warranted.  This is particularly so where there is consent of all the parties to that course.  Accordingly, a grant of probate may be revoked on the application of the executors who took the grant in order to allow for the due and proper administration of the estate, where, as in this case, there exists a near impossibility of that eventuating by virtue of the relationship of the executors.

   [1]    In the Estate of Stuart (2009) 106 SASR 39.

   [2]    In the Estate of Stuart (2009) 106 SASR 39, 46-47.

9. I further observed that the guiding principle in determining whether to revoke a grant of probate is that regard must be had to the due and proper administration of the estate and the interests of the parties beneficially entitled thereto.[3]

   [3]    In the Estate of Stuart (2009) 106 SASR 39, 46.

10. In the present case, it is apparent that the relationship between Mr Bentley and the other executors, the daughters of the deceased, has become entirely unworkable.  Mr Bentley alleges that the daughters of the deceased have acted and made decisions concerning the administration of the estate without his full involvement and consent.  Mr Bentley also alleges that one of the daughters of the deceased has made defamatory remarks against him and he has indicated that he is considering bringing proceedings against her.  Mr Bentley has deposed that, in these circumstances, he does not consider it to be appropriate for him to continue to act as an executor of the deceased’s estate.

11. Mr Bentley’s allegations are denied by the daughters of the deceased.  They have confirmed, however, that there has been a total breakdown of their relationship with Mr Bentley. 

12. It is apparent that the proper administration of the deceased’s estate has been frustrated as a result of the breakdown in the relationship between Mr Bentley and the other executors.  In these circumstances, I am satisfied that an order revoking the grant of probate is in the interests of the due and proper administration of the estate.  Such an order is likely to hasten the final distribution of the estate and is therefore also of benefit to the parties beneficially entitled to an interest in the estate.

13. I revoke the grant of probate in favour of Christine Leeora Cederblad, Shelley Louise Wood, Marie Carolyn Annett de Fontenay Coles and Donald McRae Bentley dated 6 September 2012.  I direct the Registrar of Probates to make a fresh grant of probate in favour of Christine Leeora Cederblad, Shelley Louise Wood and Marie Carolyn Annett de Fontenay Coles.  I direct that minutes of order be prepared to give effect to the above orders.