IN the ESTATE of HILDER No. SCGRG-97-188 Judgment No. S6549

[1998] SASC 6549

ESTATE HILDER DECEASED

(ex tempore)

Williams J:

Motion for probate and associated orders.

The application concerns the estate of Frederick Murray Hilder late of 124 Penfold Road Wattle Park Retired Grazier deceased who died on 25 August 1997 aged 75 years.  He was a widower.

There has been brought before the Court the following testamentary instruments:

1. Will dated 30 July 1976

1. First Codicil dated 1 February 1978

1. Will dated 10 August 1982

1. Codicil (expressed as "Second Codicil") dated 3 September 1996

1. Codicil (expressed as "Third Codicil") dated 2 June 1997

The instrument dated 3 September 1996 contains an appointment (in the events which have happened) of Mr Craig Anthony Martin Chartered Accountant and Mr Robert Critchley Porter Solicitor as executors.  Messrs Martin and Porter were the deceased usual professional advisers.  They are the present applicants upon the motion which is before me today.

There is evidence of mistake in relation to the preparation and execution of the instruments of 1996 and 1997.  The affidavit evidence supports the contention that the deceased intended these instruments to operate as codicils to his will dated 10 August 1982 despite the language of the instruments themselves which in a limited way expressly confirm the 1976 and 1978 instruments.  The 1982 will upon its face revokes all former wills.

As a result difficult questions arise as to the law of rectification relating to testamentary instruments and the doctrine of revival of wills.  The notice of motion seeks appropriate orders in this behalf.  These questions deserve mature consideration after extended argument.  Unfortunately the exigencies are such that I am unable at present to give to this application the close attention which it deserves.  The interests of other litigants must be considered and this matter should take its place in the Court list.

However urgency has been demonstrated.

The executors named in the will dated 3 September 1996 have embarked upon an administration and have sold the deceased’s house property at 124 Penfold Road Wattle Park; the contract of sale is expressed to be conditional upon a grant of probate within three months from 30 November 1997 but with settlement fixed for 18 February 1998.  The vendors on behalf of the estate are concerned that this contract should be settled.

Bearing in mind the uncertainties which surround the testamentary instruments it is important that steps be taken forthwith for the preservation of the estate and so as to allow the abovementioned sale to proceed.

In my opinion this is a special case where upon the abovementioned motion the court should give interim relief.  The court is empowered to make an order for administration ad colligendum bona where delay in securing the general estate administration may imperil the property. In such a case the court may grant to any fit person administration limited to the collection of the property of the deceased and for such further purposes for the protection and preservation of the estate as the court may direct; the administrator so constituted may be given such powers as the court deems fit.  The practice in this behalf is identified in Mortimer on Probate 2nd ed at 394-395 and in Tristram and Cootes Probate Practice 15th ed at 172-173.

In the particular circumstances of this matter it seems to me that Mr Porter as a practitioner of this court is an appropriate person to take this limited grant of administration - bearing in mind that he is named as an executor in the instrument dated 3 September 1996.  The estate asset represented by the house property needs to be administered without delay in order to preserve the value pending consideration of the substantive questions raised in the notice of motion.  Mr Porter has made the appropriate application today with a supporting affidavit which explains how the estate will be prejudiced if the sale cannot proceed.

Accordingly an order will be made in the following terms:

1. That letters of administration of the estate of Frederick Murray Hilder late of 124 Penfold Road Wattle Park in the said State Retired Grazier deceased be granted to the said Robert Critchley Porter limited for the purpose only of carrying into effect and execution the agreement dated the 30th day of November 1997 for the sale and purchase of the real estate of the deceased namely the house property situate at 124 Penfold Road Wattle Park aforesaid being the whole of the land comprised in Certificate of Title Register Book Volume 2782 Folio 143 and of collecting and getting in the proceeds of sale thereunder and until further representation be granted but no further or otherwise.

1. That the said Robert Critchley Porter as such administrator have power to execute all or any instruments as may be necessary and proper for carrying the said agreement into complete effect including power to give a good receipt for the purchase money paid under the said agreement.

1. That the said administrator do retain the said proceeds of sale coming into his hands and invest the same in investments authorized by law for the investment of trust funds and do hold such investments and the income thereof until further representation be granted or until further notice.

1. That when required to do so by the Court the administrator do:

1. exhibit in the Court a full statement of the moneys coming into his hands and render an account thereof to the Court; and

1. deliver up to the Court the grant of letters of administration ad colligenda bona.

1. That upon application being duly made by the said Robert Critchley Porter for a grant of letters of administration in pursuance of this order the said letters of administration do issue without an administration bond being given.

1. That an office copy of this order be served upon Public Trustee within 14 days after the same shall have been sealed and entered.

AND further consideration of the said motion is adjourned.

AND the administrator and any other party interested may be at liberty to apply.

AND the question of costs is reserved.