In the Estate of Koncula - [2023] NTSC 41

CITATION:In the Estate of Koncula [2023] NTSC 41
PARTIES:IN THE ESTATE of the late HALINA KONCULA

REFERENCE from the Registrar of the Supreme Court of the Northern Territory

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory Jurisdiction
FILE NO:2023-01313-SC
DELIVERED ON:  23 May 2023
HEARING DATE:  On the papers
JUDGEMENT OF:  Barr J
CATCHWORDS:

SUCCESSION – Administration – Administration and Probate Act NT s 14, s 17, s 33 – Reference by Registrar – executor formally renounced probate – application for grant of administration with will annexed to a solicitor – “necessary or convenient” – appropriate grantee of letters of administration – Court satisfied that next of kin consents to the grant – administration granted.
Administration and Probate Act 1969 (NT) s 14, s 17(2)(c), s 33.
In the Estate of Margaret Walter Sorrell (Deceased) [2015] SASC 68, In the Will of Orloff (Deceased)(No 2) [2010] VSC 83, The Estate of Gustav Ernst Paul Rauch [2013] NTSC 34

REPRESENTATION:
Counsel:
Applicant:M Bowen
Respondent: Not applicable
Solicitors:

Applicant:  Bowen Lawyers
Respondent:   Not applicable
Judgement category classification: B
Judgment ID Number:  Bar2305
Number of pages:  6

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Estate of Koncula [2023] NTSC 41

No. 2023-01313-SC

IN THE ESTATE OF THE LATE HALINA KONCULA
ON REFERENCE from the Registrar of the Supreme Court of the Northern Territory

CORAM: Barr J
REASONS FOR DECISION
(Delivered 23 May 2023)
Introduction

This matter comes before a single judge by Registrar’s reference dated 2 May 2023, made pursuant to s 17(2)(c) Administration and Probate Act 1969 (NT) (“the Act”). The issue is whether the Registrar should grant administration of the estate of the deceased to the applicant, Marguerite Blanka Bowen, Barrister and Solicitor, the executor in the will having renounced probate.
Halina Koncula (“the deceased”)[1] was born on 14 January 1925 and died, aged 97, on 23 October 2022.[2]
The deceased left an estate within the Territory being money in bank accounts and an accommodation bond. In the Affidavit of Assets and Liabilities promised 4 April 2023, the gross value of the estate is calculated as $333,705.04.
The deceased left a valid will dated 14 September 2017. The deceased did not marry and she had no children.[3]
The sole beneficiary named in the will, entitled to 100% of the estate, is Kazimierz (also known as ‘Kazmierz’) Bernard Chodnicki. He is the deceased’s nephew and next of kin.
The executor named in the will is Michael Francis Corley. Mr Corley renounced his right to probate on 24 February 2023.[4] In an email addressed to Mr Chodnicki, he noted that due to his age and geographic location, administering the will would be “draining [on his] physical and mental state”[5]. He suggested that the Darwin law firm, De Silva Hebron, be appointed in his place.
In circumstances where the executor of a will renounces probate, the Registrar of the Supreme Court has broad jurisdiction to grant administration of the estate to an individual considered fit to assume the responsibilities.[6]
The Registrar refers to s 33(c)(i) of the Act:
33 Power as to appointment of administrator
The Court may, in any case where a person dies:
…
(c) Leaving a will and having appointed an executor thereof, who:
(i)is not willing and competent to take probate;
…
If it thinks it necessary or convenient, appoint some person to be the administrator of the estate of the deceased person or of any part of the estate, upon his or her giving such security (if any) as the Court directs, and every such administration may be limited as the Court thinks fit.
The general proposition for determining to whom administration should be granted is that the right ‘follows interest’. That is, the person who has the greatest interest as a beneficiary in the estate is usually entitled to the grant of administration. However, the court has jurisdiction to depart from this and appoint an impartial person.[7]
The person with the greatest (and only) interest in the deceased’s estate is Mr Chodnicki. However, Mr Chodnicki resides in Poland and his English is limited. On 24 November 2022 he contacted the applicant to request that she consider becoming executor of the deceased’s will. From his correspondence I am satisfied that Mr Chodnicki, despite being the next of kin of the deceased and sole beneficiary of the estate, does not wish to have administration granted to him due to English language difficulties and the fact that he lives in Warsaw.[8]
From the affidavit material provided as part of this application I note the following reasons for Mr Chodnicki seeking the grant of administration to the applicant:
a.The applicant is fluent in Polish and therefore able to communicate with Mr Chodnicki in the Polish language;
b.Mr Chodnicki wishes to avoid seeking assistance of a third party in Poland for interpretation and translation purposes;
c.Mr Chodnicki wishes to avoid any additional costs associated with the preparation of documents, such as the cost of a Notary Public to act as a witness, and any costs associated with interpreting and translating during the process of preparation and execution;
d.The time difference between Poland and Darwin is 8.5 hours making it difficult to liaise with the relevant offices and authorities during compatible business hours. Mr Chodnicki and the applicant have determined a convenient time for communication being 6pm to 7pm Northern Territory time.[9]
The applicant duly caused a Notice of Intended Application for Administration to be published on the Supreme Court website on 23 February 2023. That notice did not elicit any relevant response, in that no caveat was lodged and no election made for administration.[10]
A formal application for administration of the estate was made on 4 April 2023. The applicant filed a number of documents in support of the application including an “Oath of Office” in which she promised that, if granted letters of administration of the deceased’s estate, she would well and truly collect and administer the estate of the deceased according to law.[11] The applicant has no personal interest in the estate and, as a solicitor and barrister, she is to be considered a fit and proper person to be granted administration.[12]
In determining this matter I refer to the decision of Re Gustav Ernst Paul Rauch [2013] NTSC 34. There, the decision to grant administration pursuant to s 33 of the Act was influenced by the consent of the deceased’s next of kin. The Court found that following the renouncement by the named executors it was necessary to have an administrator appointed, and the solicitor who had assisted in the initial execution of the will was deemed a suitable applicant.
In the present circumstances it appears “necessary and convenient”[13] to grant administration of the will to the applicant. The application has come to the Registrar at the request of the deceased’s next of kin and the only interested party. Further, the applicant is an appropriate person by virtue of her profession, language ability and convenient location. Her appointment would avoid further costs and delays, and aid in the proper administration of the estate.
Section 33 of the Act contemplates that a person appointed as an administrator may be required to give security. As the applicant is a lawyer and therefore an officer of the Court, I do not believe this to be necessary.[14]
Accordingly, I make the following order:
Pursuant to s 14, s 33(c)(i) and s 17(2)(c) Administration and Probate Act 1969 (NT), I make an order for the grant of administration of the estate with the will annexed of Halina Koncula, deceased, to the applicant, Marguerite Blanka Bowen.
------------------------

[1]According to the affidavit material provided by the applicant, the deceased was also known as ‘Halena Koncula’, ‘Halena Lodyga’ and ‘Halina Aleksandra Lodyga’.

[2] Affidavit of Death promised 4 April 2023, Annexure ‘B’.

[3] Ibid.

[4]Renunciation of Probate promised 24 February 2023.

[5]Affidavit in Support of Appointment of Marguerite Blanka Bowen as the Administrator of the Estate promised 25 April 2023, Annexure ‘B’.

[6] Administration and Probate Act 1969 (NT) s 14.

[7] In the Will of Orloff (Deceased)(No 2) [2010] VSC 83 at [20].

[8] Affidavit in Support of Appointment of Marguerite Blanka Bowen as the Administrator of the Estate promised 25 April 2023.

[9] Affidavit in Support of Application for Letters of Administration with a Will Annexed promised 14 April 2023, par 6 and Annexure ‘A’; Affidavit in Support of Appointment of Marguerite Blanka Bowen as the Administrator of the Estate promised 25 April 2023, pars 8-11.

[10]Affidavit of Publication and Search promised 4 April 2023, par 2.

[11] Oath of Office promised 4 April 2023.

[12] In the Estate of Margaret Walter Sorrell (deceased) [2015] SASC 68 at [36]; Re Gustav Ernst Paul Rauch [2013] NTSC 34 at [43].

[13] Administration and Probate Act 1969 (NT) s 33.

[14] Re Gustav Ernst Paul Rauch [2013] NTSC 34 at [42].