In the Estate of O'LOUGHLIN (DECEASED) - [2013] SASC 20

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of O'LOUGHLIN (DECEASED)
[2013] SASC 20
Judgment of The Honourable Justice Gray
20 February 2013
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 - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF ADMINISTRATION GENERALLY - PUBLIC TRUSTEES AND CURATORS
Two applications for a grant of letters of administration were made - the first was for a grant to the deceased's niece - the second was for a grant to the Public Trustee - whether the grant should be made to the deceased's niece or to the Public Trustee.
Held: No adequate reason was established for the passing over of the deceased's niece as administrator - letters of administration granted to the deceased's niece.
Administration and Probate Act 1919 (SA) s 72G and 72J; Public Trustee Act 1995 (SA) s 9; Court of Probate Act 1857 (Eng) s 73; Probate Rules 2004 (SA) r 32, r 36 and r 49, referred to.
In the Estate of Crane (2005) 93 SASR 198; Tsaknis as Executor and Trustee of the Estate of Lilburne (deceased) v Lilburne [2010] WASC 152; Re Curran [2010] VSC 455; Bourdales v Carroll (2007) 1 ASTLR 202; In the Estate of Carey deceased [2011] VSC 682; In the Goods of Stainton (1871) 2 LR P & D 212; Bain v Morabito (Unreported, Supreme Court of New South Wales, Powell J, 14 August 1992); In the Will of Parsons deceased (1897) 13 VLR 169; Cardale v Harvey (1752) 1 Lee 177, considered.

In the Estate of O'LOUGHLIN (DECEASED)
[2013] SASC 20
Testamentary Causes Jurisdiction
GRAY J.

Two applications were made for a grant of letters of administration in respect of the estate of Dennis John O’Loughlin, the deceased.
In March 2012, Patrick Martin O’Loughlin and Kym Megan O’Loughlin were joint applicants for a grant of letters of administration. Patrick subsequently informed the Court that he does not seek a grant. The application has been pursued by Kym alone.
The Registrar of Probates was prevented from considering a grant to Kym by a caveat entered by Raymond Leslie O’Loughlin on 12 April 2012. On 12 June 2012, Raymond applied for a grant of letters of administration to the Public Trustee.
Background Facts
The deceased died on 20 February 2011, aged 72 years. The net value of his estate is approximately $300,000.00.
The deceased died intestate. He was not survived by his parents and he did not have a spouse or domestic partner, or issue. The deceased had nine siblings, including Patrick and Raymond. One of the siblings, Barry Peter O’Loughlin, predeceased the deceased. Barry left three children who survived the deceased – Kym, Jay Louise O’Loughlin and Lea Anne O’Loughlin.
Pursuant to sections 72G(1)(d) and 72J(b)(iii) of the Administration and Probate Act 1919 (SA), the deceased’s intestate estate is divisible into nine equal portions. Each of the deceased’s eight surviving siblings are entitled to one portion. The remaining portion is to be divided between Kym, Jay and Lea.
The underlying reason for the dispute in the family appears to be centred on the dealings of Patrick with the business affairs of the deceased. The deceased operated a scrap metal business. Before the death of the deceased, the local council had ordered there be a clean up of the house and yard of the deceased’s property at Wingfield. Patrick claimed to have been requested by the deceased to carry out the clean up on his behalf. The clean up commenced before the deceased’s death and continued after his death. Patrick claimed that he had salvaged and sold scrap metal from the yard and, as a consequence, had deposited more than $46,000.00 in the deceased’s bank account. Additionally, he had disposed of forklifts and a truck and, again, had deposited those amounts in the deceased’s bank account. Patrick claimed a total of about $60,000.00, through a corporate entity, in respect of his work. It is the legitimacy of these dealings that appears to be the primary matter of dispute between the parties.
Claims were also made against the estate by Patrick and his wife in respect of attendances on the deceased during the final stages of his life. Apparently these accounts also caused concern. However, the Court has been advised that neither Patrick nor his wife is pursuing any payment in respect of their attendances.
The ultimate issue to be decided is whether the grant of letters of administration should be made to Kym or to the Public Trustee.
The Evidence
Four affidavits and a letter tendered by counsel for Kym were received into evidence. They comprised three joint affidavits of Kym and Patrick all sworn on 7 March 2012, a letter from DBH Commercial Lawyers to Patrick dated 11 March 2011 and an affidavit of Kym sworn on 24 January 2013, which was subject to the limitation that paragraphs four and five and exhibit A were not to be used for hearsay purposes.
Counsel for Raymond tendered three affidavits – an affidavit of Raymond sworn on 30 May 2012 and two affidavits of Joan Patricia Stribley sworn on 14 January 2013 and 5 February 2013.
At the hearing, counsel for Raymond cross-examined Kym. Counsel sought to establish a lack of independence by demonstrating that Kym has a reliance on Patrick. Counsel also sought to establish a lack of care on the part of Kym due to deficiencies in the statement of the deceased’s assets and liabilities. I was impressed by Kym a witness. She was aware of the need to act independently and testified that, if appointed as administrator, she would do so. She also testified that she would seek legal advice in respect of legal issues arising during the administration of the estate. Further, Kym was aware that, when necessary, she could seek advice and directions from the Court. I am of the view that Kym was a credible and reliable witness.
The Application
This Court is empowered, in the circumstances, to order that a grant of letters of administration be issued to the Public Trustee as the requirements in section 9(1)(e) of the Public Trustee Act 1995 (SA) are satisfied.[1] However, counsel for Kym contended that it would not be an appropriate exercise of the Court’s power to make such an order in the circumstances of the application by Raymond.
[1] Section 9(1)(e) of the Public Trustee Act 1995 (SA) provides:
(1)The Court may make an order (an administration order) granting administration of the estate of a deceased person to the Public Trustee, or authorising the Public Trustee to administer the estate of a deceased person—
…
(e)if no person entitled to obtain administration (with or without a will annexed) obtains it within three months after the death of the deceased; or
…
The order of priority for a grant of letters of administration is governed by rule 32 of the Probate Rules 2004 (SA). Rule 32 provides:
32.01 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;
(iii)    The father or mother of the deceased;
(iv)    Brothers and sisters of the deceased, or the issue of any deceased brother or sister who died before the deceased;
(v)     Grandparents of the deceased;
(vi)    Uncles and aunts of the deceased and the issue of any deceased uncle or aunt who died before the deceased.
32.02 In default of any person having a beneficial interest in the estate, administration shall be granted to the Attorney-General if the Attorney-General claims bona vacantia on behalf of the Crown.
32.03 If all persons entitled to a grant under Rule 32.01 have been cleared off, a grant may be made to a creditor of the deceased or to any person who, notwithstanding that he or she has no immediate beneficial interest in the estate, may have a beneficial interest in the event of an accretion thereto:
Provided that the Registrar may give permission to a creditor to take a grant if the persons entitled in Rule 32.01(i) have been cleared off and if the Registrar is satisfied that in the circumstances of the case it is just or expedient to do so.
32.04 Subject to Rule 35.03, the personal representative of a person in any of the classes mentioned in Rule 32.01 or the personal representative of a creditor shall have the same right to a grant as the person whom he or she represents:
Provided that the persons mentioned in Rule 32.01(ii) shall be preferred to the personal representative of a spouse [or a domestic partner] who has died without taking a beneficial interest in the whole estate of the deceased as ascertained at the time of the application for the grant.
32.05 For the purposes of this Rule it is immaterial whether a relationship is of the whole blood or the half blood and references to "children of the deceased" include references to the deceased's natural or adopted children and "father or mother of the deceased" shall be construed accordingly.
Pursuant to rule 32.01(iv), Kym is entitled to apply for a grant of letters of administration. There is no one with a higher order of priority than her. Kym has the same order of priority as each of the other beneficiaries of the intestate estate. Counsel for Kym drew the Court’s attention to the fact that no one with an equal entitlement, apart from Patrick until he withdrew his joint application with Kym, has sought a grant to himself or herself.
The present proceeding is not concerned with a dispute between persons entitled in the same order of priority. As noted above, it is a question of whether the Public Trustee or Kym should be appointed. Under rule 32 of the Probate Rules, the Public Trustee has no priority over Kym to appointment. However, under rule 36.01, the priority which Kym has under rule 32 does not operate to prevent a grant being made to the Public Trustee because the Public Trustee is a person to whom a grant may be made under an enactment. In particular, rule 36.01 provides:
Nothing in Rules 31 or 32 shall operate to prevent a grant being made to any person to whom a grant may or may require to be made under any enactment.
It is therefore necessary to look beyond the terms of the Probate Rules to resolve the issue before the Court.
In In the Estate of Crane,[2] Besanko J concluded that in limited circumstances the Court has power to pass over an executor named in a will. Counsel for Raymond sought to extend this to the passing over of a person entitled to a grant of letters of administration. In doing so, it was submitted that Besanko J traced the power back to section 73 of the Court of Probate Act 1857 (Eng) which in its terms provides for the Court’s discretion, in special circumstances, not to make a grant of letters of administration to a person entitled. Insofar as the Court there found the power to be in the inherent jurisdiction of the Court, it was said that there is no reason the inherent jurisdiction would not also permit the passing over of a person entitled to a grant of letters of administration.
[2] In the Estate of Crane (2005) 93 SASR 198, [23].
Counsel for Raymond drew the Court’s attention to Tsaknis as Executor and Trustee of the Estate of Lilburne (deceased) v Lilburne,[3] where Heenan J recognised the application of the power in the case of administration. Heenan J relevantly observed:[4]
Section 36 of the Administration Act recognises that where a person dies leaving a will but without having appointed an executor, or having appointed an executor who is not willing and competent to take probate or is resident out of the State, the court may appoint an administrator of the estate or any part of it and that the administration may be limited as the court thinks fit. This is a partial statutory recognition of the power of the court to pass over the appointment of a named executor in such cases but it is nevertheless part of the inherent or inherited jurisdiction of the court to pass over the appointment of a named executor, or a person entitled to apply for a grant of administration, in special circumstances. Section 36 of the Administration Act has some similarities to s 33 of the Court of Probate Act 1857 (Eng) and s 162 of the Supreme Court of Judicature (Consolidation) Act 1925 (Eng) now s 116 of the Supreme Court Act 1981 (Eng). The first two of those English statutes were examined by Rees J in Re Estate of Biggs (dec’d) [1966] 1 All ER 358 ; [1966] 2 WLR 536 where the court, for special reasons, decided that it was right to pass over the appointment as executor of the person named as the executor who had intermeddled with the estate but who had refused to apply for probate. Rees J also examined a number of other cases in which orders had been made passing over named executors.
In Re Estate of Crane [2005] SASC 379 ; (2005) 93 SASR 198, Besanko J undertook a detailed review of the jurisdiction of the English courts and of the English legislation which conferred such jurisdiction before proceeding to set out how the corresponding jurisdiction was conferred on the Supreme Court of South Australia even without express statutory provision to that effect. His Honour’s exposition of this result for South Australia shows, sufficiently, how the same jurisdiction was acquired by this court.
There can be no doubt that this court does have power to pass over an executor who has been named in a will or a person with a right to apply for administration in exceptional circumstances and even in other circumstances. This frequently occurs, as in the present case, where one of several executors initially decides not to apply for a grant and instead is given leave to apply later. Nor was it suggested in the present case that there was no power of the court to pass over, either temporarily or permanently, the appointment of Mr David Lilburne as a co-executor and co-trustee although, as set out in what follows, many submissions were advanced as to why that should not be done. There are many circumstances in which a named executor will be passed over, at least temporarily, which do not in any way reflect adversely upon that person. So, for example, if the executor named is a minor, he or she will be passed over with liberty to apply upon attaining the age of majority.
…
And at [26-19] dealing with objections to an applicant the learned author observes that if objections exist against an administrator the court will not compel an unobjectionable person to join in and take a grant with him: Bell v Timiswood (1812) 2 Phillim 22 ; 161 ER 1066 (a). Other examples of instances giving rise to an order passing over an applicant include incompatible interests of the applicant, bankruptcy or insolvency, severe ill-health, but there are no limits to the grounds upon which an applicant may be passed over. Every case must depend upon its special facts with each case to be decided upon its own merits: Re Chapman [1903] P 192 — see generally Halsbury’s Laws of England, Re-issue Vol 17(2) [181] and Halsbury’s Laws of Australia, Vol 24 [395–2550].
[Emphasis added.]
[3] Tsaknis as Executor and Trustee of the Estate of Lilburne (deceased) v Lilburne [2010] WASC 152.
[4] Tsaknis as Executor and Trustee of the Estate of Lilburne (deceased) v Lilburne [2010] WASC 152, [52]-[54], [58].
The Court has a discretion as to who it appoints as administrator.[5] In Bourdales v Carroll, Young CJ in Eq relevantly observed:[6]
The basal rule when the court is considering whether to grant administration in the estate is that the appointment must be one which advances the real object of administration, that is, the due and proper administration of the estate; see Re Loveday [1900] P 154 , 156.
Within that general rule judges have over the centuries enunciated a series of guidelines as to how one ascertains who should administer the estate. In essence, these are that the right to administration follows interest. That is, the person who has the greatest interest as a beneficiary in the estate is normally entitled to the grant. Thus, if one has a situation where four people together hold two thirds of the beneficial interests in the estate and seek administration and another person, with a sibling, hold one third of the estate and also claim the right to administer, then the former group is usually preferred; see Re Slattery (1909) 9 SR (NSW) 577; Bain v Morabito (Powell J, 14/8/ 1992) BC 9201674 and Re Parsons (1887) 13 VLR 169.
[Emphasis added.]
[5] Re Curran [2010] VSC 455, [21].
[6] Bourdales v Carroll (2007) 1 ASTLR 202, [4]-[5].
In the present proceeding, the persons holding five of the nine portions of the deceased’s estate support a grant of administration being made to Kym. As one portion is to be shared between three people, there are seven out of eleven interested persons who support a grant being made to Kym. Accordingly, if the reasoning of Young CJ in Eq were to be adopted in the present proceeding, Kym would be the recipient of the grant. Unsurprisingly, counsel for Kym urged the Court to adopt that reasoning. In particular, it was said that in the absence of some disqualifying factor, such as an unfitness to act, the Court should exercise its discretion to appoint the person favoured by the majority.
In In the Estate of Carey deceased,[7] Habersberger J was concerned with circumstances in which the deceased died intestate leaving two children who were the equal beneficiaries of the intestate estate. With the authorisation of one of the children, State Trustees Limited applied for letters of administration. The other child lodged a caveat and sought a grant of letters of administration herself. Habersberger J relevantly observed:[8]
Affidavits in support of the application by State Trustees for letters of administration have been filed, as have affidavits by Mrs Howden in opposition to that application and in support of her application for a grant of letters of administration to her. She relies on the steps taken by State Trustees in terms of searches and advertising and so forth.
The question for determination is which of State Trustees and Mrs Howden should be appointed administrator. A well recognised general principle is that the person who has the greatest interest as beneficiary is normally entitled to be appointed. Here however, the interests of the siblings are equal and Mr Carey, as he is entitled to do, has appointed State Trustees.
It is my view that, in an appropriate case, where you have a beneficiary who has an equal entitlement to the estate and who is willing to act as administrator, then he or she should be given a grant in preference to a trustee company, even though that company has been appointed by the other equal beneficiary. The question is whether this is an appropriate case for such a decision.
[Footnote omitted. Emphasis added.]
Counsel for Kym submitted that it is a stronger case when, as here, the majority of interests favour the appointment of a beneficiary who is willing to act as administrator.
[7] In the Estate of Carey deceased [2011] VSC 682.
[8] In the Estate of Carey deceased [2011] VSC 682, [4]-[6].
In In the Goods of Stainton, Lord Penzance remarked:[9]
[9] In the Goods of Stainton (1871) 2 LR P & D 212, 213.
… It is true that if the majority of interests desire that the administration should be placed in other hands, the Court, in its discretion, will usually grant it to the nominee of such majority. That is the general rule. …
Further, in Bain v Morabito, Powell J observed:[10]
… the practice of the Court is, and has long been, that, except for good cause shown, as between a number of persons entitled to the property of the relevant deceased the grant should follow the preponderance of interests (In the Estate of Slattery (1909) 9 SR 577) the representative of the majority interests usually being regarded as having the better title to a grant.
[Emphasis added.]
Webb J made a similar point in In the Will of Parson deceased:[11]
… There are several rules adopted by the Court as to the party to whom administration will be granted. One is that a male is preferred to a female. Another one of greater force and which abrogates the first is that the party first applying has the best right to administration. A third rule of still greater force, and abrogating both the others, is that administration will follow the interests, and that where there is a dispute, the party applying, who can show the majority of interests, is best entitled to administration. That is the rule which has obtained in a grant of administration simply, and of course there the majority of interests means numerically, the number of persons who are entitled on a distribution of the estate, or rather I should perhaps say the number of shares …
[Emphasis added.]
[10] Bain v Morabito (Unreported, Supreme Court of New South Wales, Powell J, 14 August 1992).
[11] In the Will of Parsons deceased (1897) 13 VLR 169, 171.

To my mind, the authorities outlined above provide a strong basis in favour of a grant of letters of administration to Kym. However, in my view, the observations of Sir George Lee in Cardale v Harvey are noteworthy:[12]
… though it is a good general rule to grant administration to the largest interest, yet that is only introduced by practice, and not by any positive law, and the court is not obliged to grant it to the largest interest. …
Accordingly, granting administration to the largest interest or that which the majority of parties select is the practice rather than the law.
[12] Cardale v Harvey (1752) 1 Lee 177, 179-180.
Counsel for Raymond relied on three matters to support his contention that the grant of letters of administration should be made to the Public Trustee. First, it was said that there was substantial delay by Kym in making her application. It was not made until about one year after the deceased’s death. Secondly, it was said that Kym was closely aligned with Patrick and that Patrick is clearly an inappropriate person for the grant of administration. Thirdly, it was said that there was a risk that Kym would not apply the appropriate care and attention to the duties of an administrator.
In response to the first of these contentions, counsel for Kym submitted that there was no relevant delay which can be attributed to Kym or which would justify the selection of the Public Trustee in lieu of Kym as administrator. It was said that following the deceased’s death on 20 February 2011, Kym and Patrick instructed Beger & Co Lawyers to take the steps required to obtain a grant. In May and June 2011, Beger & Co Lawyers communicated with the other beneficiaries. To facilitate an application for a grant of letters of administration, Patrick and Kym sought the consent of the other beneficiaries to the appointment of a duly authorised agent or attorney within South Australia. The other beneficiaries did not reside in South Australia. Counsel for Kym drew the Court’s attention to the fact that whether or not such an appointment is to be made affects the documents to be filed in support of the application under the Probate Rules. The appointment of an agent or attorney within South Australia was not forthcoming from the other beneficiaries. In March 2012, Kym and Patrick jointly applied for a grant.
In my view, the complaint about delay is without substance. This is particularly so given that Raymond’s application for a grant to be made to the Public Trustee was filed approximately three months after Kym and Patrick’s joint application.
In relation to the second matter relied upon by Raymond, namely Kym’s close alignment to Patrick, counsel for Kym submitted that the reason for Kym’s joint application with Patrick for a grant of letters of administration was because she was independent from Patrick and the only other family member and beneficiary of the intestate estate resident in South Australia. It was said that the appointment of two joint administrators both being resident in South Australia had certain procedural advantages in the obtaining of a grant of letters of administration. In particular, it allowed compliance with the requirements relating to the giving of sureties in rules 49.02(a) and 49.02(b) of the Probate Rules.
Counsel for Raymond further submitted that a review of the history of the matter disclosed that Kym had not dealt appropriately with the major contentious issue arising in the estate, namely the earlier discussed dealings by Patrick with the affairs of the deceased. It was pointed out that Kym had indicated to Patrick’s solicitors that, as a beneficiary, she had no objection to the acceptance of Patrick’s claim. It was then argued that this compromised Kym’s independence as administrator in the consideration of Patrick’s claim. It was said that she could not bring an independent mind to this task.
It was pointed out that to assist with the administration of the estate, Kym was proposing to instruct the same solicitors who had initially acted for Patrick and had then acted in the preparation of the joint application. It was suggested that a conflict may arise as a consequence. It is to be accepted that circumstances may arise where a firm of solicitors may need to withdraw and other solicitors engage. It may be that, if a conflict arose, it would be sufficient for other solicitors or independent counsel to be obtained to advise on a discrete issue. Both in evidence and during the course of submissions, it was Kym’s position that if the need arose, independent legal advice would be obtained.
In my view, Kym clearly understands the need to act independently from Patrick. She has confirmed this through her evidence. As mentioned earlier, I found Kym to be a credible and reliable witness. This complaint should be rejected.
The third matter relied upon by Raymond to support his contention that Kym should be passed over as administrator was that there is a risk that Kym would not apply appropriate care and attention to the duties of an administrator. This is a point which counsel for Raymond sought to establish during cross-examination of Kym.
It transpired that the first matter of complaint, a purported mathematical error which counsel sought to rely on as an example of Kym’s lack of attention to detail, could not be established. Counsel withdrew this assertion.
Next it was submitted that the statement of assets and liabilities did not include any reference to Patrick’s claim, the major contentious issue between the parties. It was pointed out that earlier drafts of the statement of assets and liabilities had included Patrick’s claim, but it had been removed from the final document. An immediate difficulty confronting this submission is that affidavits filed in Court provide a very full disclosure as to the precise basis of Patrick’s claim. Exhibited to an affidavit of 7 March 2012 is a copy letter of 25 May 2011 sent by Patrick’s solicitors to each of the beneficiaries of the estate, explaining and particularising Patrick’s involvement and the basis of his claim. When the documents on the court file are considered in their entirety, it appears that there has been a very full disclosure of all matters concerning the estate as known to Kym.
Attention was drawn to an affidavit of Joan Patricia Stribley, a sibling of the deceased and a supporter of Raymond’s position, in which she asserted that an amount of $1,000.00 that she had borrowed from the deceased had been repaid. In the joint application by Patrick and Kym, an amount of $2,000.00 was claimed as a debt to the estate by Ms Stribley. It was argued on behalf of Raymond that, given Ms Stribley’s assertions, the amount claimed was incorrect and, in any event, any debt had been repaid. In my view, this is a matter of no consequence. There appears to be a possible dispute of fact surrounding the monies borrowed by Ms Stribley from the deceased and the repayment of those monies. It is to be noted that Kym had no personal knowledge of these matters. I am not prepared to drawn an inference that this topic is evidence that Kym would not apply appropriate care and attention to the duties of an administrator.
As earlier indicated, I was impressed by Kym’s evidence. Kym accepted that if there were any conflict, independent advice would need to be sought. The Court was informed that Kym intended to first marshal the facts, then seek agreement from the beneficiaries and, in the event that agreement could not be reached, take independent advice and, if necessary, approach the Court for directions. Additionally, through her counsel, Kym acknowledged that she did not have any firsthand information about the disputed issues.
Counsel for Raymond submitted that the Public Trustee should be appointed as this would be the most efficient way to manage the administration. In particular, counsel submitted that:
…[T]he Public Trustee is an obvious unconnected administrator where any additional cost will be marginal, if at all. And the administration has the benefit of and [sic] administrator without any connection to any of the parties which one would expect, in the ordinary course of things, will result in a much more efficient administration and the greater potential for the minimisation of disputes in the best interests of all the beneficiaries …
In the event that the Court were to make a grant in favour of the Public Trustee, substantial expense would arise.[13] An initial commission would be incurred and thereafter, an annual commission would accrue on income. However, if the Public Trustee were required to address a disputed claim, it is probable that it would engage either the Crown Solicitor or independent lawyers to act. In that event, the expenses associated with the disputed claim would be recovered from the estate.
[13] See G E Dal Pont and K F Mackie, Law of Succession (LexisNexis Butterworths, 2013) [13.72].
No adequate reason has been established for the passing over of Kym. She has demonstrated an awareness of her responsibilities and has the ability to address those responsibilities. I do not consider the issues raised about her independence to be of sufficient weight to materially weaken her claim.
In the circumstances, I am of the opinion that it is appropriate to exercise my discretion to make a grant of letters of administration to Kym.
Conclusion
The application made by Kym seeking a grant of letters of administration should be granted. The application made by Raymond seeking that a grant be made to the Public Trustee should be rejected.