In the Estate of KYAW NYUNT (DECEASED) - [2015] SASC 14

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of KYAW NYUNT (DECEASED)
[2015] SASC 14
Reasons for Decision of The Honourable Justice Gray
10 February 2015
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF ADMINISTRATION GENERALLY - TO WHOM GRANTED AND WHEN NECESSARY GENERALLY - SOUTH AUSTRALIA
SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - TESTAMENTARY CHARACTER - GENERALLY
Application for a grant of letters of administration. The application was brought by the widow of the deceased. The deceased left a document of a testamentary nature written in the Burmese language. The applicant initially sought a grant of probate of the document on the basis that the document was to be recognised for the purposes of South Australian law as a will pursuant to Part 3 of the Wills Act 1936 (SA). The applicant subsequently submitted that the document did not appoint an executor and, if it were a will, would be wholly ineffective in disposing of the deceased’s Australian estate. Accordingly, the applicant sought a grant of letters of administration on the basis that the deceased died intestate.
Whether the document is a will pursuant to Part 3 of the Wills Act. Whether a grant of letters of administration should be made to the applicant. Whether the applicant should be exempted from the requirement that she transfer the interests of the deceased’s children, who are not sui juris, to the Public Trustee pursuant to section 67 of the Administration and Probate Act 1919 (SA).
1. The applicant did not discharge the burden of showing that the document was to be regarded as a will for the purposes of Part 3 of the Wills Act.
2. A grant of letters of administration of the deceased’s estate be made to the applicant.
3. A dispensation order under section 67 of the Administration and Probate Act be made. The interests of the deceased’s children in the deceased’s estate appropriately protected.
Wills Act 1936 (SA) Pt 3; Probate Rules 2004 (SA) r 32.01; Administration and Probate Act 1919 (SA) s 65, s 67, s 72G and s 72H, referred to.
Tsagouris v Bellairs (2010) 5 ASTLR 403; In re Debney (1927) 1 ALJ 17 (n); In the Estate of Richter [2011] SASC 124, considered.

In the Estate of KYAW NYUNT (DECEASED)
[2015] SASC 14
Testamentary Causes Jurisdiction
GRAY J.

This is an application for a grant of letters of administration of a deceased’s estate.
Kyaw Nyunt, the deceased, died on 26 November 2013 in South Australia. The deceased died leaving personal property in South Australia. Khin Ma Ma, the applicant, is the widow of the deceased.
Affidavits sworn by the applicant were filed in support of the application. In making the findings recorded in these reasons, I have acted on those affidavits.
The deceased and the applicant were both born in Myanmar on 1 September 1967 and 25 December 1971 respectively. The deceased and the applicant met in 1987. On 12 April 1995, they were married in Myanmar. They have two children together, aged 11 and 12 years. The family moved to Australia in 2010.
On 7 December 2011, the deceased and the applicant executed a document during a trip to Myanmar. The document is in the Burmese language. An English translation of the document has been provided to the Court. That translation provides:
Kyaw Nyunt works at (Australian Mud Company) AMC- Index of Australia and Khin Ma Ma runs jewelry [sic] businesses in Australia and Myanmar.
Both parties have Buddhism as their religious faith and believe in Buddhist doctrine of the consequences of good deeds. Both parties understand that life can be expired within the time frame between the bending finger to the stretching finger and the time frame between the stretching finger to the bending finger.
So as to understood [sic], in the event that Kyaw Nyunt expires Khin Ma Ma, wife, Banyar Set, son, and Yonnady May Shin Thant, daughter shall have all the entitlements accrued to the late Kyaw Nyunt by the Australian Mud Company, AMC-Index.
In the event that Khin Ma Ma expires all the jewelry businesses, any profits thereof and any receiveables arising out of the businesses both situated in Australia and Myanmar shall go to Kyaw Nyunt, the husband, Banyar Set, son, and Yonnidy May Shin Thant, daughter.
We swear that the above mentioned agreement has been entered at the time that we are in good health physically and mentally and with our free consents and free from any deceit and threat committed by any person.
As the above mentioned contents have been read and understood, we sign in the presence of the below witnesses.
Parties to the Family Arrangement:
[Signed]  [Signed]
Kyaw Nyunt  Khin Ma Ma
[address]  [address]
(Husband)  (Wife)
The document is then witnessed by two named persons.
Initially the applicant sought a grant of probate of the document on the basis that the document was to be recognised for the purposes of South Australian law as a will pursuant to Part 3 of the Wills Act 1936 (SA). Section 25B of that Act provides:
Notwithstanding any other provision of this Act, a will is to be treated as properly executed for all purposes if its execution conformed to the internal law in force in the place where it was executed, or in the place where, at the time of its execution or of the testator's death, he or she was domiciled or had his or her habitual residence, or in a country of which, at either of those times, he or she was a national.
An affidavit as to foreign law was filed. The deponent, Khin Maung Latt, was born in Myanmar but now resides in Australia. Between 1988 and 1992, his occupation in Myanmar was a “2^nd Judge of a Township Court”. Mr Latt said that he was closely involved in presiding over civil cases of the Court and is very familiar with the operation of civil law in Myanmar. Mr Latt deposed:
In Myanmar the popularly held system of belief and social organization is a form of Buddhism known as Theravada.
This belief system in particular abhors and denies death as a permanent state.
As a result, Wills in the form known to the Common Law and to specific statutes, are not in any way common in Myanmar.
Much more common and accepted in Myanmar today, as the expression of one’s last testament, is a form of civil contract which declares the unwritten law, that is, that a person’s spouse is the person responsible for taking care of a deceased person’s affairs, similar to the role undertaken by the Executor in Common law jurisdictions. In particular where any children are minors, the surviving spouse becomes the sole beneficiary.
Now produced to me and marked (“A”) is a certified copy of the civil contract and the translation of that Document entitled Agreement on Family Arrangement and signed by Kyaw Nyunt and his spouse Khin Ma Ma on the 7th day of December 2011.
I am of the belief that this document constitutes and carries the same implication as would a Will as commonly known in the Western World.
The Registrar of Probates, in his memorandum referring the application for a grant of probate to me, raised two issues. First, the Registrar noted that it is unclear whether the propounded document is a will. Secondly, if the document is a will, it is unclear whether the applicant is appointed as the executor of the will.
The applicant initially contended that she was appointed as the executor of the deceased’s estate according to the tenor of the propounded document.
In Tristram & Coote’s Probate Practice, it is stated:[1]
An executor according to the tenor of a will is a person, not expressly nominated an executor, who is directed by the will to perform one or more of the duties of an executor.
[Footnote omitted.]
[1] JI Winegarten, R D’Costa and T Synak, Tristram and Coote’s Probate Practice (LexisNexis Butterworths, 30^th ed, 2006) [4.19].
In Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, it is said:[2]
An executor appointed by implication is usually called executor according to the tenor; for although no executor is expressly nominated in the will by the word “executor”, yet, if by any word of circumlocution the testator recommends or commits to one or more the charge and office, or the rights which appertain to an executor, it amounts to as much as the ordaining or constituting him or them to be executors. Thus an executor may be appointed by necessary implication.
[Footnote omitted.]
[2] EV Williams, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (Sweet & Maxwell, 19^th ed, 2008) [3.13].
In Tsagouris v Bellairs,[3] I summarised the authorities relating to whether a will contains an appointment of an executor by the tenor. I refer in particular to paragraphs 28 to 31 of that judgment. For present purposes, it is convenient to include the following extract:[4]
… the appointment of an executor may be express or implied; whether it is implied will depend on a construction of the whole will and whether a conclusion is reached that the named persons will carry out the functions normally associated with the office of executor; upon reaching such a conclusion, the persons named are said to be called the executor according to tenor; a mere direction to persons to pay debts, funeral and other testamentary expenses can appoint such persons as executors according to tenor; and, in order for named persons to constitute executors according to tenor, a reasonable construction of the will should disclose an intention on the part of the testator that the named persons should collect the assets of the testator, pay the debts and funeral expense and discharge the legacies contained in the will.
[3] Tsagouris v Bellairs (2010) 5 ASTLR 403.
[4] Tsagouris v Bellairs (2010) 5 ASTLR 403, [31].
After the matter was called on for a directions hearing, the applicant filed written submissions in which she accepted that there was nothing on the face of the document which would necessarily give to the applicant the performance of any functions to be undertaken by an executor. The applicant therefore accepted that if the document were to be regarded as a will, it would be necessary for her to seek letters of administration with the will annexed, rather than a grant of probate.
The applicant informed the Court that she no longer sought to advance a case that the document should be recognised as a will in South Australia.
The document has on translation been described as an “Agreement on Family Arrangement”. There are two parties to the document, namely the deceased and the applicant. The document was signed in the presence of two witnesses.
The document sets out certain entitlements which are to apply “in the event that Kyaw Nyunt” expires. Therefore in that sense the document is concerned with what is to take place after the death of the deceased. In that event, the applicant and her two children “shall have all the entitlements accrued” to the deceased “by the Australian Mud Company, AMC-Index”. The document does not deal with the disposition of any other entitlements or property that the deceased had upon his death.
Therefore even if it were to be regarded as a will, the document does not deal exhaustively with the deceased’s Australian estate.
If the document were a will a question of construction would arise as to whether the major asset forming part of the deceased’s estate met the description of being an entitlement accrued to the deceased “by the Australian Mud Company, AMC-Index”. If it did not, the document as a will would be wholly ineffective in any event to dispose of the deceased’s Australian estate.
The statement of assets and liabilities affirmed by the applicant reveals that the deceased’s estate has the benefit of a life assurance policy described as “Spectrum Super Employer Sponsored Division Insurance Policy [membership number]”. The deceased did not die entitled to any benefit directly accruing to him from the Australian Mud Company, AMC-Index. In these circumstances, the applicant submitted that it was not essential for the Court to seek to answer the first question identified by the Registrar of Probates in his memorandum because the document, even if a will, is not likely to be effective to dispose of any part of the deceased’s estate in Australia.
The practice of the Court where a will is inoperative is not to prove the will, but to issue letters of administration without the inoperative will being annexed. The failed will is recorded in the grant of letters of administration and recited in the oath of administration. It appears that the practice in South Australia is based on the practice established in the New Zealand case of In re Vogel.[5] The Court adopted the practice in 1926 by a decision of Richards AJ in the case of In re Debney.[6]
[5] In re Vogel (1910) 13 NZ Gaz LR 117.
[6] In re Debney (1927) 1 ALJ 17 (n).
The applicant accepted that, on the state of the evidence, the Court would be entitled to find that the applicant had not discharged the burden on her of showing that the document was to be regarded as a will for the purposes of Part 3 of the Wills Act. In my view, this concession was appropriate.
On 11 December 2014, the applicant filed a fresh summons seeking an order for a grant of letters of administration to her on the basis that the deceased died intestate. According to rule 32.01 of the Probate Rules 2004 (SA), if the deceased died intestate, the applicant as the surviving spouse is the person with the highest priority to seek a grant of letters of administration.
A statement of assets and liabilities indicates that the deceased’s estate has a net value of $441,219.63. Pursuant to Part 3A of the Administration and Probate Act 1919 (SA), if the deceased died intestate, the applicant and her two children with the deceased would be the persons entitled to the estate. In accordance with section 72H(1) of the Administration and Probate Act, the applicant is entitled to the personal chattels of the deceased, which in this case include a motor vehicle with an estimated value of $27,500.00. The applicant is then entitled to the first $100,000.00 of the intestate estate in accordance with section 72G(1)(b) of the Administration and Probate Act. Of the balance of the estate, the applicant is entitled to one half and the other half is to be shared equally between the two children of the deceased. It follows that if the deceased died intestate, the two children will have an interest in the estate in the order of $78,000.00 each.
As both children are minors, and therefore not sui juris, section 65 of the Administration and Probate Act provides that the administrator is to transfer their interest in the estate to the Public Trustee.
The applicant has applied under section 67 of the Administration and Probate Act for an order dispensing with compliance with section 65. Section 67 provides:
(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 without notice to any interested party 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 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.
It is to be noted that an application for a dispensation order under section 67 can be made by a “proposed administrator”. Accordingly, an application need not await the obtaining of a grant of letters of administration. Here, the applicant is clearly a proposed administrator, as she is the applicant for a grant of letters of administration.
The Public Trustee was given notice of the application for a dispensation order under section 67. When the application was called on for hearing, counsel attending on behalf of the Public Trustee confirmed that the Public Trustee did not oppose that order being made.
In In the Estate of Richter, I made the following observations regarding the scheme of the provisions:[7]
Section 65 seeks to protect a person where an administrator, not an executor, has been appointed by the Court to administer an estate and where a beneficiary is not sui juris. The protection is effected by obligating the administrator to convey the property due to such a beneficiary to the Public Trustee. In enacting section 67 of the Act, Parliament conferred on the Court the power to relieve the administrator from the obligation under section 65 when it is “beneficial or expedient to do so”.
...
It is clear that section 65 has, at least in part, a beneficial and remedial purpose[8]. It is settled that beneficial and remedial legislation is to be interpreted as widely as its terms permit.[9]
[7]    In the Estate of Richter [2011] SASC 124, [13], [15].
[8]    In In the Estate of Marden [2008] SASC 312 at [14] with respect to this type of statutory provision, I observed: “A beneficial or remedial statutory provision is one that gives some benefit to a person and thereby remedies some injustice [Re McComb [1993] 3 VR 485, [22]].”
[9]    In this respect, Brennan CJ and McHugh J in IW v City of Perth (1997) 191 CLR 1 at 12 outlined the approach to be taken on the construction of beneficial or remedial statutory provisions:
“[It is a] rule of construction that beneficial and remedial legislation … is to be given a liberal construction. It is to be given “a fair, large and liberal” interpretation rather than one which is “literal or technical”. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.” [Footnotes omitted.]
After discussing the relevant authorities, I concluded that the key consideration in an application under section 67 is whether a beneficiary who is not sui juris would be properly protected by the proposed dispensation order sought. I also concluded that the broadness of the word “expedient” as it appears in section 67 permits the court to contemplate considerations other than the due administration of the estate.[10]
[10] In the Estate of Richter [2011] SASC 124, [16]-[18].
In this case, the applicant submitted that it would be beneficial or expedient for a dispensation order to be granted. The applicant is employed as a managing director of a number of companies and has business interests in Myanmar. Accordingly, the applicant appears to be a person of some business acumen and experience. The applicant deposed that she intends to remain resident in Australia with her children. She informed the Court that she would, if the dispensation order were granted, place each child’s interest into a fixed term bank account in the child’s name to be kept on deposit until they attain 18 years of age. The applicant’s compliance with her duties as administrator can be readily monitored by empowering the Public Trustee to request annual reports from the applicant.

In these circumstances, I am satisfied that the interests of the deceased’s children in the deceased’s estate will be appropriately protected by the making of a dispensation order under section 67 of the Administration and Probate Act. The asset and liability position of the estate is straightforward, and the extent of the children’s interests in the intestate estate will be able to be readily calculated. Due to the relatively modest size of the children’s interests in the deceased’s estate, I consider that it would be beneficial to the children to have those interests administered by the applicant, without charges being incurred by the Public Trustee. I am satisfied that it is beneficial to order that the applicant not be bound by section 65 of the Administration and Probate Act.
For the above reasons, on 16 December 2014, I made orders that letters of administration of the deceased’s estate be granted to the applicant and that the applicant not be bound by the requirements of section 65 of the Administration and Probate Act.