In the Estate of MARK DARREN BLANDIS (DECEASED) - [2016] SASC 155

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of MARK DARREN BLANDIS (DECEASED)
[2016] SASC 155
Judgment of The Honourable Justice Stanley
28 September 2016
SUCCESSION - ADMINISTRATION OF ESTATE - DISTRIBUTION - OTHER MATTERS
Application pursuant to s 67 of the Administration and Probate Act (SA) (the Act) by the administrator of a deceased estate for an order dispensing with the requirement to pay over money to the Public Trustee in accordance with s 65 of the Act.
Mark Blandis, the deceased, died intestate on 13 April 2010. He is survived by two children, the plaintiff, who is the administrator of the deceased’s estate, and Eva Anele Blandis (Eva), who is not sui juris, having been born on 15 October 2000.
On 23 March 2015, Letters of Administration of the deceased’s estate were granted to the plaintiff.
The persons entitled to share in the estate of the deceased are the plaintiff and Eva. The net proceeds of the estate are to be distributed to them in equal shares.
The plaintiff proposes that rather than pay the net amount of Eva’s interest to the Public Trustee, to be invested in the common fund investments utilised by the Public Trustee, that all or part of Eva’s interest be invested in an income earning residential property to be purchased with her share of the deceased’s estate and held in the name of her solicitor, Mark Eric Hamilton, as trustee for Eva.
Held:
1. Dispense with the requirement for the plaintiff to comply with s 65 pursuant to s 67 of the Act with respect to the interest in the intestate estate of the deceased of the infant child of the deceased, Eva Anele Blandis (at [14]).
2. Mark Eric Hamilton be appointed as the trustee of the interest in the intestate estate of the deceased of the infant child of the deceased, Eva Anele Blandis (at [14]).
3. The trustee shall, at such times being not more than once in any calendar year as the Public Trustee may require of the trustee, prepare and serve on the Public Trustee a statement, verified by the affidavit or statutory declaration of the trustee showing the property comprising the interest in the intestate estate of the deceased of the infant child of the deceased, Eva Anele Blandis, and the condition of such property and the manner in which such property has been dealt with, administered or applied (at [14]).
4. Pending further order, and subject to the payment of the proper legal costs and other expenses of the trust, the trustee maintain the interest in the intestate estate of the deceased of the infant child of the deceased, Eva Anele Blandis, in a trustee approved interest bearing account (at [14]).
5. The plaintiff’s costs of the application be paid out of the estate of the deceased (at [14]).
6. The plaintiff, Mark Eric Hamilton, Public Trustee and any other person interested may apply for further orders and directions (at [14]).
Administration and Probate Act 1919 (SA) s 65, s 67, referred to.
IW v City of Perth (1997) 191 CLR 1; In the Estate of Richter (deceased) [2011] SASC 124, considered.

In the Estate of MARK DARREN BLANDIS (DECEASED)
[2016] SASC 155
Testamentary Causes Jurisdiction
STANLEY J:
Introduction

This is an application pursuant to s 67 of the Administration and Probate Act 1919 (SA) (the Act) by the administrator of a deceased estate for an order dispensing with the requirement to pay over money to the Public Trustee in accordance with s 65 of the Act. I have received affidavits of Katharine Vivienne Blandis and Mark Eric Hamilton both sworn 23 June 2016. I am satisfied it is appropriate to proceed on the basis of the evidence set out therein.
Mark Blandis, the deceased, died intestate on 13 April 2010. He is survived by two children, the plaintiff, who is the administrator of the deceased’s estate, and Eva Anele Blandis (Eva), who is not sui juris, having been born on 15 October 2000.
On 23 March 2015, Letters of Administration of the deceased’s estate were granted to the plaintiff.
The persons entitled to share in the estate of the deceased are the plaintiff and Eva. The net proceeds of the estate are to be distributed to them in equal shares.
The Statement of Moneys Received and Paid of the deceased discloses a net estate of $1,114,322.33. The net estate consists of the proceeds of a superannuation benefit.
Eva’s mother, Katharine Vivienne Blandis, was previously married to the deceased. They were divorced in or about 2005. Eva lives with her mother. Eva attends a private girls’ school. She is currently in year 10. She is doing well at school. Her present intention is to complete year 12 and to progress to study at university.
The plaintiff proposes that rather than pay the net amount of Eva’s interest to the Public Trustee, to be invested in the common fund investments utilised by the Public Trustee, that all or part of Eva’s interest be invested in an income earning residential property to be purchased with her share of the deceased’s estate and held in the name of her solicitor, Mark Eric Hamilton, as trustee for Eva. Mr Hamilton has indicated that he is prepared to accept such an appointment and to act as trustee in those circumstances without payment of any fees. The plaintiff submits that adopting this course will be beneficial and expedient in that if the Court was not to make the order sought Eva’s interest would be transferred to the Public Trustee to be administered by the Public Trustee until she attains her majority on 15 October 2018. Those funds plus earnings and less the Public Trustee’s commission would be transferred to Eva at that time. The plaintiff suggests this would not be beneficial or expedient as Eva would be expecting to undertake her year 12 examinations at that time.
Section 65 of the Act requires the administrator to deliver property held on behalf of a beneficiary who is not sui juris to the Public Trustee. Accordingly, the plaintiff is required to transfer Eva’s share in the estate to the Public Trustee because she is not sui juris.
The Legislative Scheme
The plaintiff seeks orders pursuant to s 67 of the Act. The order sought pursuant to s 67 is that she not be bound by s 65 of the Act which relates to the duty of an administrator of an estate to pay money and deliver property belonging to a person who is not sui juris to the Public Trustee after a certain period of time. Section 65 provides:
65—Administrator to pay over money and deliver property to Public Trustee
(1)Every administrator who is possessed of or entitled to any property within this State, whether personal or real, belonging to any person who—
(a) is not sui juris, or
(b) is not resident in this State, and has no duly authorised agent or attorney therein:
shall deliver, convey, or transfer such property to the Public Trustee immediately after the expiration of one year from the date of the death of the intestate or testator, or within six months after such sooner time as the same or such portion thereof as is available for that purpose, has been sold, realised, collected, or got in.
(2)The Public Trustee shall then administer such property according to law, and in accordance with any will affecting such property.
(2a)The Public Trustee may, in his discretion, (but subject to the provisions of any will or instrument of trust) realise, or postpone the realisation of, any real or personal property delivered, conveyed or transferred to him under subsection (1) of this section.
(3)This section shall not apply in any case where the administrator is a limited company incorporated or taken to be incorporated under the Corporations Act 2001 of the Commonwealth, and is acting as administrator in pursuance of any powers granted to it by any Act.
(4)This section shall not apply to an administrator acting under any probate or administration not granted by the Supreme Court but sealed with the seal of the Supreme Court in pursuance of the provisions of section 17 of this Act.
(5)Subject to the provisions of any will or instrument of trust, the Public Trustee may, if he is satisfied that it will be advantageous to the beneficiaries, authorise the sale of any trust property, not exceeding four thousand dollars in value, to the administrator, or to the administrator conjointly with any other person, notwithstanding that the property has not been offered for sale by public auction or otherwise.
Section 67(1) provides a dispensing power and is relevantly in the following terms:
(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.
As is apparent, s 67 provides that a judge may, being satisfied that it is “beneficial or expedient to do so” order that an administrator not be bound by s 65. The applicant contends that an order should be made that she not be bound by s 65 of the Act, as the protection afforded by s 65 to a beneficiary who is not sui juris, requiring an administrator to pay the funds to the Public Trustee, is not required in the circumstances of this matter. The application is not opposed by the Public Trustee so long as certain orders are made to adequately safeguard the entitlement of Eva. Before addressing the merits of the application it is appropriate to note some important features of the legislative scheme concerning the relevant provisions of the Act.
Section 65 seeks to protect the person where an administrator, not an executor, has been appointed by the Court to administer an estate 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 s 67, Parliament conferred on the Court the power to relieve the administrator from the obligation under s 65 when it is “beneficial or expedient so to do”. It is clear that s 65 and s 67 have, at least in part, beneficial and remedial purposes. It is settled that beneficial and remedial legislation is to be interpreted as widely as its terms permit.[1]
[1] IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 12.
In In the Estate of Richter (deceased),[2] Gray J concluded that the key consideration in the determination of an application pursuant to s 67 is whether a beneficiary who is not sui juris is properly protected.
[2] [2011] SASC 124.
In determining whether Eva will be properly protected by making an order pursuant to s 67(1) dispensing with the requirement to transfer her interest in the property of the estate being administered to the Public Trustee, I consider the following factors are relevant:
1The period during which part of the deceased’s estate would need to be administered before Eva attains her majority is a little over two years.
2Holding assets on trust will adequately protect Eva’s interest.
3I am satisfied that Mr Hamilton will manage the estate competently and gratuitously.
4If an order is not made, the funds will be transferred to the Public Trustee for future management and administration and be subject to the commission charged by the Public Trustee for the performance of the function.
5The estate is a straightforward one.
6The conversion of Eva’s interest in the estate into an income producing real estate asset will alleviate the need for her to direct her mind to how she should most appropriately deal with the funds she would come into on attaining her majority at a time when she should be focussed on completing her year 12 examinations.
7The Public Trustee does not oppose the order sought by the plaintiff on terms reflected in the orders I propose to make.
Conclusion
In these circumstances I am satisfied it is both beneficial and expedient to dispense with compliance with s 65. For these reasons I make an order dispensing with the obligation on the part of the plaintiff to comply with the requirements of s 65 of the Act. Further, I make the orders sought by the plaintiff and not opposed by the Public Trustee as follows:
1.An order dispensing with the requirement for the plaintiff to comply with s 65 of the Administration and Probate Act 1919 (SA) pursuant to s 67 of the Act with respect to the interest in the intestate estate of the deceased of the infant child of the deceased, Eva Anele Blandis.
2.Mark Eric Hamilton be appointed as the trustee of the interest in the intestate estate of the deceased of the infant child of the deceased, Eva Anele Blandis.
3.The trustee shall, at such times being not more than once in any calendar year as the Public Trustee may require of the trustee, prepare and serve on the Public Trustee a statement, verified by the affidavit or statutory declaration of the trustee showing the property comprising the interest in the intestate estate of the deceased of the infant child of the deceased, Eva Anele Blandis, and the condition of such property and the manner in which such property has been dealt with, administered or applied.
4.Pending further order, and subject to the payment of the proper legal costs and other expenses of the trust, the trustee maintain the interest in the intestate estate of the deceased of the infant child of the deceased, Eva Anele Blandis, in a trustee approved interest bearing account.
5.The plaintiff’s costs of the application be paid out of the estate of the deceased.
6.The plaintiff, Mark Eric Hamilton, Public Trustee and any other person interested may apply for further orders and directions.