Lin v Tatsi
[2001] VSC 255
•13 June 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
IN THE MATTER of the Will and Estate of Peter Enn Tatsi deceased
and
IN THE MATTER of an Application by Ching-Han Lin for a grant of Letters of Administration pendente lite or otherwise limited
| CHING-HAN LIN | Plaintiff |
| V | |
| MARK TATSI | Intervenor |
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JUDGE: | BEACH, J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 JUNE 2001 | |
DATE OF JUDGMENT: | 13 JUNE 2001 | |
CASE MAY BE CITED AS: | LIN v. TATSI | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 255 | |
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CATCHWORDS: Administration and Probate – Grant of administration of colligenda bona – Protection of assets.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr. J.K. Arthur | Mackinnon Jacobs Horton & Irving Pty. |
| For the Intervenor | Mr. A. Southall QC and Ms. D. Lyall | J.J.P. (Phillip) Overell |
HIS HONOUR:
Overnight I have considered the plaintiff's application that a grant of letters of administration pendente lite of the estate of Peter Enn Tatsi be granted to her solicitor, Michael Geoffrey Jacobs.
For reasons I shall outline in a moment, I propose to make a limited grant of administration to enable the administrator to complete the sale of the property at 3 Comfort Close, Rowville (the property) and to deal with the proceeds of sale of the property. The grant I propose to make, however, is one of "ad colligenda bona" and not of "pendente lite". It would seem to me to be far more appropriate in the circumstances of this case.
The plaintiff is the widow of the deceased, Peter Enn Tatsi. The deceased and the plaintiff were the owners of the property as tenants in common in equal shares. It follows therefore that if the property was sold the plaintiff has an entitlement to one half of the net proceeds of the sale after payment out of the mortgage to the National Australia Bank and payment, of course, of the appropriate expenses incurred in relation to the sale.
The deceased died on 28 October 2000. His last will (until such time as someone can discover a later will if such exists) is dated 18 September 2000. By his will the deceased appointed the plaintiff his executor and left the whole of his estate to the plaintiff.
On 22 December 2000 and before she had applied for a grant of probate of the estate of the deceased, the plaintiff entered into a contract to sell the property to John and Lana Troiano for $320,000. The Troianos paid a deposit of $32,000.
Pursuant to the sale note the balance of purchase money is payable "90 days from the date of this contract or within 14 days of grant of probate of the estate of Peter Enn Tatsi deceased whichever is the (sic) latter". I would have thought the parties intended to use the word "later".
On 29 March 2001 the plaintiff lodged an application for a grant of probate of the will and estate of the deceased.
On 10 April 2001 the 18-year-old son of the deceased by a former marriage, Mark Tatsi, filed a caveat in the application. On 16 May 2001 Mark Tatsi filed his grounds of objection to the application. They read:
"1.That there is a later Will of the deceased shown to the Caveator by the Plaintiff, the date of which is not known to the Caveator.
2.That the document of which the grant of Probate is being sought was not executed in conformity with the Wills Act 1997.
3.The document of which the grant of Probate is being sought was not intended by the deceased to be his Will."
It is now clear from the nature of the dispute between the plaintiff and her stepson that the dispute will not be resolved by the court before late 2001 or early 2002.
It is with that background in mind that I deal with the present application.
In her affidavit the plaintiff has sworn that the reason she sold the property at the time she did was that she was very short of cash and needed to sell the property to obtain some funds. There is no evidence before me to suggest that that is not so.
The plaintiff has sworn that she is presently not making any mortgage payments to the National Australia Bank and that she is concerned that the bank may decide to exercise its rights under its mortgage over the property unless the mortgage is paid out shortly.
Whilst clearly the plaintiff should not have sold the property before she obtained a grant of probate, having regard to her ethnic background, and her failure to have a good grasp of the English language (in that latter regard see para.10 of her stepson's affidavit sworn 7 June 2001), one can perhaps understand her actions in that regard.
It is also to be remembered that it was the plaintiff who first purchased the block of land at 3 Comfort Close on which the matrimonial home is now located and that she has a one-half interest in the property.
Counsel for the stepson in opposition to the plaintiff's present application relied upon the decision of Gillard, J. in Re Cohen deceased [1975] V.R.187. But the facts in this case are quite distinguishable from the facts in Cohen. In Cohen the applicant had sold the property without obtaining a grant of probate and at the time of making the application for administration ad colligenda bona had still made no application for probate. At p.190 Gillard, J. said:
"The applicant has had a very long period of time since the date of death on 3 December 1971 for the purpose of applying for probate of the will. She has failed to apply, and as I have said, no explanation for her delay has been given.
The practice of limited grants of administration was never intended to be used for the benefit of an applicant to cover her default. The practice was solely for the purpose of protecting any perishable or precarious assets of a deceased person where normal representation could not be promptly obtained. It seems to me therefore, as I have stated, that this application was misconceived. There was plenty of time to obtain normal representation by obtaining a grant of probate. This is not a bona fide application to protect the assets of the deceased. It is an application to afford, if possible, an answer by a defaulting vendor under a contract of sale."
But in this case an application for probate was made promptly and would have been granted by now had it not been for the action of the plaintiff's stepson. As I have already pointed out, it is now clear that normal representation of the deceased's estate will not be obtained for a significant period of time, and, in my opinion, through no fault on the part of the plaintiff.
Finally, if a grant is made limited to dealing with the proceeds of the sale of the property, by making appropriate orders the estate and the interests of the plaintiff's stepson, if any, in the estate can be protected.
The court orders and directs that:
1.Michael Geoffrey Jacobs be substituted as plaintiff for the present plaintiff, Ching-Han Lin.
2.Letters of administration ad colligenda bona of the estate of the abovenamed Peter Enn Tatsi deceased, late of 3 Comfort Close, Rowville in the State of Victoria, Manager, be granted to Michael Geoffrey Jacobs of 151 Boronia Road, Boronia in the State of Victoria, Legal Practitioner, limited for the purpose only of him:
(a)completing the sale of the property situate at and known as 3 Comfort Close, Rowville, Victoria, 3178 being the land more particularly described in Certificate of Title Volume 10058 Folio 953 to John Anthony Troiano and Lana Michele Troiano pursuant to a contract note dated 22 December 2000 entered into by Ching-Han Lin and signing all documents necessary to complete such sale including an instrument of transfer and receiving the net proceeds of sale of the property;
(b)applying the net proceeds of sale of the property after payment of the costs and expenses thereof as follows:
(i)in payment of the amounts required by the National Australia Bank to discharge the mortgage over the property;
(ii)paying half the net balance to Ching-Han Lin;
(iii)investing the balance of the proceeds of sale of the property in the name of the estate in an investment appropriate for the investment of trust moneys;
(c)and to that end, to operate any bank account
of the deceased.
But limited until a grant of probate or general administration be made or until further order and such administration shall proceed no further or otherwise than as aforesaid or in any other manner whatsoever.
3.The requirement of a surety be dispensed with.
4.The plaintiff's costs of this application be paid and retained out of the estate of the deceased. The costs of Mark Tatsi of the application be reserved.
5.The plaintiff be at liberty to apply further herein from time to time as she may be advised.
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