In the estate of Vicki Maree Livingstone

[2024] ACTSC 290

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

In the estate of Vicki Maree Livingstone

Citation: 

[2024] ACTSC 290

Hearing Date: 

20 September 2024

Decision Date: 

20 September 2024

Before:

McCallum CJ

Decision: 

(1) Pursuant to s 25 of the Administration and Probate Act 1929 (ACT), letters of administration of the estate of the deceased, Vicki Maree Livingstone, with the will dated 28 February 1992 annexed (a true copy of which is attached to the application dated 8 July 2024) are granted to Phillip Grant Livingstone.

(2)    Proceeding PRO 633 of 2024 remitted to the Registry to issue a grant of letters of administration with the will dated 28 February 1992 annexed.

(3) Pursuant to r 3046 of the Court Procedures Rules 2006 (ACT), the Court dispenses with the administration bond in relation to the estate.

Catchwords: 

WILLS, PROBATE & ADMINISTRATION – Rectification – where executor of the estate has not renounced as an executor or obtained probate of the will – where executor’s right cease failing to file any notice of intention to respond or defence

Legislation Cited: 

Administration and Probate Act 1929 ss 20, 25

Court Procedures Rules 2006 (ACT)

Parties: 

Phillip Grant Livingstone ( Applicant)

Representation: 

Counsel

L Babic ( Applicant)

Solicitors

Thomson Geer ( Applicant)

File Number:

PRO 633 of 2024

McCALLUM CJ:       

EX TEMPORE REASONS (REVISED)

1․This is an application under s 25 of the Administration and Probate Act 1929 (ACT) for the grant of letters of administration of the estate of the deceased, Vicki Maree Livingstone to her widower, Phillip Grant Livingstone.

2․The application is made in circumstances where the individual named as executor of the estate, the brother of the applicant, has not renounced as an executor or obtained probate of the will.  According to the evidence before me, the last known will of Vicki Livingstone is a will dated 28 February 1992 in which she appointed National Mutual Trustees Limited and Michael Livingstone as executors.  She did not appoint a substitute executor.

3․Ms Livingstone died on 20 January 2016.  National Mutual Trustees Limited renounced its rights to probate of the will, as notified in a renunciation of probate filed with the Court which was dated 11 March 2016.  However, despite many attempts by both Phillip Livingstone and his solicitor to contact his brother, Michael Livingstone, the latter has not responded to any requests in respect of the estate and has neither obtained probate nor renounced as an executor.

4․It follows that the Court’s power under s 25 of the Act to make an order for the administration of the estate is enlivened. Furthermore, in accordance with s 20 of the Act, application having been made under s 25 and the named executor, Michael Livingstone, having failed to file any notice of intention to respond or defence in the Court within the time required by the Court Procedures Rules 2006 (ACT), his rights as executor have ceased.

5․The section provides that, in those circumstances, the rights as executor of the will are taken without further renunciation to devolve as if the person had not been appointed executor.  The applicant, Phillip Livingstone, is the sole beneficiary under the will.  The only asset of the estate that requires administration is a holding of some 2,800 shares which have a relatively small value.  In any event, as the evidence demonstrates, the Court’s authority to make the orders is enlivened.  The rights of the appointed executor have ceased and accordingly the Court must make the orders sought. 

Orders

6․For those reasons I make the following orders:

(1)Pursuant to s 25 of the Administration and Probate Act 1929 (ACT), letters of administration of the estate of the deceased, Vicki Maree Livingstone, with the will dated 28 February 1992 annexed (a true copy of which is attached to the application dated 8 July 2024) are granted to Phillip Grant Livingstone.

(2)Proceeding PRO 633 of 2024 is remitted to the Registry to issue a grant of letters of administration with the will dated 28 February 1992 annexed.

(3)Pursuant to r 3046 of the Court Procedures Rules 2006 (ACT), the Court dispenses with the administration bond in relation to the estate.

I certify that the preceding six [6] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: