In the Estate of MARIA GEPPA - [2013] SASC 153

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of MARIA GEPPA
[2013] SASC 153
Judgment of The Honourable Justice Gray
11 October 2013
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF ADMINISTRATION GENERALLY - JOINT GRANTS
Appeal against decision of the Deputy Registrar of Probates to refuse to grant a joint application for letters of administration of the deceased’s estate. The application was made by the son of the deceased and his solicitor. The deceased’s son is the only person entitled to an interest in the deceased’s estate. The deceased’s son was required to provide a surety’s guarantee unless an order was made by the Registrar under rule 49.08 of the Probate Rules 2004 (SA) dispensing with that requirement. The purpose of the joint application was to obtain the protection of the solicitor’s professional indemnity insurance and to thereby encourage the making of a dispensation order under rule 49.08. The Deputy Registrar refused to grant the joint application. The Deputy Registrar indicated that, as the deceased’s son was the only person entitled to the estate, a dispensation order could be made without recourse to the protection of the solicitor’s indemnity insurance.
Held: Appeal dismissed. The starting position in relation to the deceased’s estate is that a grant of administration should be made to the deceased’s son only. It was unnecessary in this instance for the deceased’s son to apply for letters of administration jointly with his solicitor. The Deputy Registrar’s decision to refuse to grant the joint application for letters of administration was within his discretion.
Administration and Probate Act 1919 (SA) s 23 and s 31; Probate Rules 2004 (SA) r 32, r 49 and r 76, referred to.

In the Estate of MARIA GEPPA
[2013] SASC 153
Testamentary Causes Jurisdiction
GRAY J.

This is an appeal pursuant to rule 76 of the Probate Rules 2004 (SA) against a decision of the Deputy Registrar of Probates to refuse to grant a joint application for letters of administration in respect of the estate of Maria Geppa, the deceased.
The application for a grant of letters of administration was jointly made by the deceased’s son, Rosario Joseph Geppa, and his solicitor, Christopher Douglas Hamilton. The Deputy Registrar declined to grant joint letters of administration to the applicants. The applicants appeal against that decision.
Affidavits sworn by both applicants have been tendered in support of the application. In recording the facts that appear later in these reasons, I have drawn from the contents of those affidavits.
The deceased died intestate on 27 September 2012. The statement of assets and liabilities records a gross value of the deceased’s estate of $477,600.95. According to the rules of intestacy, Mr Geppa is the only person entitled to the estate. Mr Geppa resides in Victoria. As Mr Geppa is not a resident of South Australia and as the gross value of the estate exceeds $250,000.00, he is required by section 31 of the Administration and Probate Act 1919 (SA) and rule 49.07 of the Probate Rules to provide a surety’s guarantee in relation to his application for letters of administration. Mr Geppa has deposed that he is unable to provide such a guarantee.
Rule 49.08 of the Probate Rules gives the Registrar a discretion to dispense with the requirement to provide a surety’s guarantee.   Rule 49.08 provides:
The Registrar may, upon being satisfied by affidavit that it is beneficial or expedient to do so –
(a)     dispense with the requirement to provide a guarantee;
(b)     reduce the liability of a surety under a guarantee;
(c)     require as a condition of dispensing with the requirement of a guarantee or reducing the liability of a surety under a guarantee that administration be granted to not less than two individuals:
Provided that the Registrar may impose such other conditions as the Registrar may see fit.
It is evident that the purpose for Mr Geppa making an application for letters of administration jointly with Mr Hamilton was the belief that Mr Hamilton’s professional indemnity insurance would justify the making of an order pursuant to rule 49.08 of the Probate Rules dispensing with the requirement to provide a surety’s guarantee. Mr Hamilton has deposed that he holds professional indemnity insurance for an amount of at least the gross value of the assets of the deceased’s estate.
Section 23 of the Administration and Probate Act enables the Court to make a joint grant of administration. That section provides:
The Court has the power to grant administration to more than one person.
By memorandum dated 24 July 2013, the Deputy Registrar informed Mr Hamilton of his decision to refuse to grant the joint application for letters of administration. The Deputy Registrar indicated that as Mr Geppa was the only person entitled to the deceased’s estate, it was not necessary for Mr Geppa to obtain the benefit of Mr Hamilton’s professional indemnity insurance before an order would be made under rule 49.08 of the Probate Rules dispensing with the requirement to provide a surety’s guarantee. The Deputy Registrar expressed his view that an application for letters of administration should be made by Mr Geppa solely. The applicants appealed against the decision of the Deputy Registrar.
Rule 76.01 of the Probate Rules provides for a right of appeal from decisions of the Deputy Registrar. That rule relevantly provides:
An appeal shall lie to a Judge in Chambers from any judgment, determination, order, direction or decision given or made by the Registrar or Deputy Registrar and shall be instituted in the manner prescribed by Supreme Court Rule 97.03(1).
Provided that where any person aggrieved is desirous of appealing from any judgment, determination, order, direction or decision of the Deputy Registrar the matter must first be referred to the Registrar for a direction (unless the Registrar is absent) and the Deputy Registrar must act in accordance with such direction.
While there has been no formal referral of the matter to the Registrar, the Registrar has indicated that he has discussed the matter with the Deputy Registrar and that he agrees with the decision of the Deputy Registrar. I am therefore satisfied that formal compliance with rule 76.01 should be dispensed with in this instance.
In his referral of this matter to me, the Registrar indicated that in this case, dispensation with the requirement to provide a surety’s guarantee could be given under rule 49.08 without recourse to Mr Hamilton’s insurance. The Registrar based this suggestion on the following factors: Mr Geppa is prepared to act as administrator; Mr Geppa is aware of and has undertaken to comply with the obligations of an administrator; Mr Geppa has instructed his solicitor, Mr Hamilton, to attend to the administration of the estate; there are ample assets to pay the only creditor of the estate; and, most importantly, Mr Geppa is the only person entitled to the estate.
The Registrar pointed out that it is unusual for administration to be granted to more than one person, particularly where one of the applicants has an interest in the estate and the other does not. The Registrar indicated that a grant of joint administration would generally only be made in such circumstances where the person without an interest in the estate is needed in order to secure the interests of other persons entitled. The Registrar indicated that Mr Hamilton has previously been successful in obtaining grants of joint administration and orders under rule 49.08 of the Probate Rules. However, the Registrar pointed out that in other cases in which Mr Hamilton has obtained a joint grant of administration, his involvement has been necessary as there was more than one person entitled to the estate, and so there were other interests requiring the protection of his insurance. In this case, as Mr Geppa is the only person entitled to the estate, the Registrar indicated that the protection of Mr Hamilton’s indemnity insurance was not necessary for a dispensation order to be made under rule 49.08 of the Probate Rules.
On the appeal, Mr Hamilton submitted that there is nothing in the relevant legislation to preclude the making of a joint grant of administration in the circumstances. It was contended that the mere fact that Mr Hamilton’s involvement as a joint administrator may not have been strictly necessary to obtain a dispensation order under rule 49.08 of the Probate Rules did not mean that the joint application should be refused. Mr Hamilton suggested that no concern should arise merely because more security has been provided in relation to the administration of the estate than the Registrar believes is necessary. It was contended that an application which otherwise complies with the legislation should not be rejected merely because the Registrar has a different opinion as to the way in which the application could have been made. Mr Hamilton further submitted that the approach taken by the Registrar was unduly technical and contrary to the flexibility encouraged by the Probate Rules. Mr Hamilton went so far as to suggest that, for the above reasons, it was oppressive to require Mr Geppa to incur the cost and delay associated with filing a fresh application for letters of administration.
Rule 32.01 of the Probate Rules outlines the order of priority for grants of letters of administration. Rule 32.01 relevantly provides:
Where the deceased died on or after the 29th January 1976, wholly intestate, the persons entitled in distribution under Part IIIA of the Act shall be entitled to a grant of administration in the following order of priority, namely -
(i)Where the spouse [or the domestic partner] of the deceased has survived the deceased for 28 days, the surviving spouse [or the domestic partner];
(ii)The children of the deceased, or the issue of any such child who died before the deceased;
…
The starting position in relation to the deceased’s estate is therefore that a grant of administration should be made to Mr Geppa. It may be necessary in some circumstances to depart from the order of priority specified in rule 32.01. For instance, it may be necessary to order a joint grant of administration where it would not be otherwise possible to obtain either a surety’s guarantee or a dispensation order under rule 49.08. However, as earlier mentioned, it is unnecessary in this case that any grant of letters of administration to Mr Geppa be made jointly with Mr Hamilton.
The Deputy Registrar’s decision to refuse to grant the joint application for letters of administration was within his discretion. The appeal is dismissed.