In the Estate of HUGH GRANT ROWELL

[2006] SASC 313

Supreme Court of South Australia

(Testamentary Causes Jurisdiction)

In the Estate of HUGH GRANT ROWELL

[2006] SASC 313

Judgment of The Honourable Justice Debelle (ex tempore)

4 October 2006

WILLS, PROBATE AND LETTERS OF ADMINISTRATION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION

Application for grant of letters of administration ad colligenda bona – relevant factors – application granted to allow applicant to make application pursuant to s 50 of Legal Practitioners Act 1981 (SA).

Administration of Probate Act 1919 (SA) s 5; Court of Probate Act 1858 (UK); Legal Practitioners Act 1981 (SA) s 50; Supreme Court Act 1935 (SA) s 18; Testamentary Causes Act 1867 (SA) s 6 and s 14, referred to.
Hoare v Johnson (1998) 8 Tas R 76; Re Bolton [1899] P 186; Re Clarkington (1861) 2 SW & TR 380; 164 ER 1043; Re Clore [1982] Ch 456; Re Cohen deceased [1975] VR 187; Re Crane (2005) 93 SASR 198; Re Edwards (1981) 28 SASR 280; Re Hilder [1998] SASC 6549; Re Kuhl [1933] SASR 394; Re Matthew [1984] 2 All ER 396; Re Schwerdtfeger (1876) 1 PD 424; Re Smith deceased (1972) 2 SASR 477; Re Stewart (1869) 1 P & D 727; Re Swale [1940] SASR 391; Whitehead v Palmer [1908] 1 KB 151, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"ad colligenda bona"

In the Estate of HUGH GRANT ROWELL
[2006] SASC 313

Testamentary Causes Jurisdiction

1. DEBELLE J.  (ex tempore)            This is an application for grant of letters of administration ad colligenda bona of the estate of Hugh Grant Rowell deceased.

2. An administrator ad colligenda bona is a person to whom the court has made a limited or temporary grant of letters of administration for the purpose of collecting the property or part of the property of a deceased person where that property is of a perishable or precarious nature or where a regular administration cannot be granted at once: see Jowett’s Law Dictionary; Osborn, A Concise Law Dictionary (5^th edition) and Mortimer On Probate Practice (2^nd edition, 1927) at 394-395. Some aspects of the grant are noted in Whitehead v Palmer [1908] 1 KB 151 at 156 to 157.

3. The object of a grant of this kind is to enable an administration where there is a wasting asset, that is to say, an asset which may deteriorate or diminish in value, and it is not possible for a person to apply for a grant of probate or letters of administration in a timely manner. The purpose is to enable the protection and preservation of the asset. The administration is limited for the purpose of protecting and preserving the asset and may be granted to any fit person. Examples of orders made to protect wasting assets in the case of a business are Re Schwerdtfeger (1876) 1 PD 424; Re Bolton [1899] P 186; Re Stewart (1869) 1 P & D 727; and Re Clarkington (1861) 2 SW & TR 380, 164 ER 1043. More recent decisions in this country include Re Cohen deceased [1975] VR 187, Re Hilder [1998] SASC 6549, and Hoare v Johnson (1998) Tas R 76. A recent example of the application of the principle in a large estate is Re Clore deceased [1982] Ch 456 at 476.

4. In making these orders, the court is exercising the jurisdiction vested in it by s 5 of the Administration of Probate Act 1919 and by s 18 of the Supreme Court Act 1935. That jurisdiction is ultimately founded on the jurisdiction of the Court of Probate in England immediately after the Court of Probate Act 1858 (UK): see s 6 and s 14 of the Testamentary Causes Act 1867. The history of the jurisdiction is noted by Napier J in Re Kuhl [1933] SASR 394. See also Re Swale [1940] SASR 391 at 394, Re Smith deceased (1972) 2 SASR 477, Re Edwards (1981) 28 SASR 280 and Re Crane (2005) 93 SASR 198 at 202-203. Nothing is to be gained by adding to these discussions. It is sufficient to note that there is clear authority for the jurisdiction to make the order.

5. The deceased died on 23 September 2006. He was a legal practitioner. At the time of his death, he carried on the practice of Rowell Forrest & Co as a sole practitioner. There are employed members of the firm who hold practising certificates under the Legal Practitioners Act 1981. In consequence of his death, there are real restrictions upon the capacity of the employees of the firm to conduct the business of the firm.

6. The deceased left a will made on 21 April 1988. By that will, he appointed his wife, Heather Margaret Rowell, as his sole executor provided she survived him by one calendar month. If she did not so survive him, he appointed Mr H.J.F. Treloar and Mr P.J. England as executors and trustees of his will.

7. The legal practice of Rowell Forest & Co will be an asset of the estate. Mrs Rowell seeks to sell the business of the practice. An order appointing Mrs Rowell as an administrator ad colligenda bona will enable her to do so.

8. Mrs Rowell, who is not a legal practitioner, also intends to apply pursuant to s 50 of the Legal Practitioners Act for an order authorising her to carry on the practice of Rowell Forrest & Co for the benefit of the estate of the deceased pending the sale of the practice. It is plainly desirable that she be at liberty to make the application in order to preserve the practice to the best possible advantage. In making that observation, I do not in any sense prejudge the outcome of any application under s 50.

9. The only person entitled to make an application under s 50 of the Legal Practitioners Act is the legal personal representative of the estate of the deceased legal practitioner. Mrs Rowell will not be able to get in any assets of the practice until an order is made pursuant to s 50 of the Legal Practitioners Act. At the same time she cannot apply for an order under s 50 unless she is the personal representative of the estate of the deceased. It is plain that the application under s 50 should be made. If it is not, the conduct of the practice is at a virtual standstill and that must adversely affect the value of the practice. It is a paradox of Gilbertian proportion. The appropriate way to resolve it is to make a grant of letters of administration ad colligenda bona to enable her to make the application and that the order be subject to a favourable determination pursuant to s 50 of the Legal Practitioners Act. As Mrs Rowell is not in a position to apply for a grant of probate for one month and as the practice may waste in that period, it is desirable that a grant of letters of administration ad colligenda bona be ordered to enable her to make that application. The order will operate until Mrs Rowell or some other person obtains a grant of probate of the will of the deceased. The order will operate until there is a grant of probate: Re Matthew [1984] 2 All ER 396.

10. There will be orders:

    1.That letters of administration of the estate of Hugh Grant Rowell deceased be granted to Heather Margaret Rowell limited to

    (a)collecting, getting in and receiving that part of the personal estate of the deceased which is represented by the legal practice of Rowell Forrest & Co and any assets connected, directly or indirectly, to that practice and in doing such acts as may be necessary for the preservation of the same and until such time as a grant of probate is made of the will of the deceased, Hugh Grant Rowell.

    (b)applying to the Supreme Court of South Australia pursuant to s 50 of the Legal Practitioners Act 1981, to carry on the practice of Rowell Forrest & Co subject to such conditions as the court may determine, and if so authorised to get in and collect that part of the personal estate of the deceased which is represented by the legal practice of Rowell Forrest & Co and any assets connected directly or indirectly to that practice, with power to take legal proceedings for the recovery thereof and to give receipts therefor and to operate on any bank accounts for the practice, including the trust account, and generally to do all things necessary or expedient for the carrying on of the practice and with power to sell the goodwill of the practice with or without any of the assets relating thereto until such time as a grant of probate is made of the will of the deceased Hugh Grant Rowell.

    2.Liberty to apply.