LONDON - [2019] WASC 448

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   LONDON [2019] WASC 448
CORAM:   CURTHOYS J
HEARD:   27 NOVEMBER 2019
DELIVERED          :   6 DECEMBER 2019
FILE NO/S:   PRO 6066 of 2019
MATTER:   Estate of DOREEN MARGARET ROSE TESTER late of 122B Planet Street, Carlisle, Western Australia (Dec)

EX PARTE
JEREMY THOMAS LONDON
Applicant

Catchwords:

Letter of administration - Non-relative - Executor renounced - Beneficiaries consent - Applicant with no interest in the estate

Legislation:

Probate Act 1957, 20 & 21 Vict 77

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Applicant

In Person

Solicitors:

Applicant

Robertson Hayles Lawyers

Case(s) referred to in decision(s):

Brotherton [1901] 139
Bullar (1870) 22 LT (NS) 140
Estate of Nicholls [2003] WASC 85
Farrell v Brownbill (1864) 3 Sw & Tr 467
Hale (1874) 3 P&D 207
Potter [1899] p 265
Prosser (1876) 11 LR Eq R 37
Richardson (1871) 2 P&D 244
Teague v Wharton (1871) 2 P&D 360

CURTHOYS J:

Introduction

On 16 October 2019 Jeremy London, a solicitor, filed an application for letters of administration with the will annexed of Doreen Margaret Rose Tester.
The executors named in the will have renounced and the beneficiaries of the will have consented to Mr London's appointment.
Mr London was not a beneficiary under the will nor was he related to Mrs Tester. In effect, what he is asking is that the court grant letters of administration to someone who has no interest in the estate.

Dismissal of application

On 22 October 2019 Registrar Whitbread made the following orders:
The application dated 17 October 2019 for a grant of probate is refused for the following reasons:
1.The executors appointed under the Will have renounced. There are beneficiaries of the estate resident in Western Australia who have the right to apply, and are the only persons entitled to apply for letters of administration with the Will annexed. It does not matter that the residual beneficiaries are the executors appointed under the Will. The right to take a grant cannot be conferred by consent. The right to take a grant can only be conferred by law.
2.The current applicant has no standing to apply.
3.The filing fee will not be refunded as the application has been considered and determined.
4.The correct application is for letters of administration with the will annexed by one, or more, of the beneficiaries of the Will.
On 24 October 2019 Mr London wrote to Registrar Whitbread asking for the decision to be reconsidered. The letter stated:
1.Section 37 of the Administration Act 1903 restricts the Court to granting letters of administration with the will annexed to 'any person interested in the estate, or […] any creditor of the testator'. However, this section only applies where an executor neglects to obtain or renounce probate within two months of the testator's death or where the executor is unknown or cannot be found. None of those circumstances apply to this matter.
2.Section 36 applies in circumstances where, inter alia, an executor is not willing to take probate, as in this matter. This section allows the Court to appoint an administrator (with the will annexed). In contrast to s 37, the class of eligible applicants is not expressly limited. In our respectful opinion, this difference necessitates an interpretation of s 36 under which, where this section applies, the Court's discretion to grant administration with the will annexed to any person is unfettered, except perhaps by general law principles (which apply pursuant to s 4 of the Administration Act 1903).
3.Rule 28 of the Non-contentious Probate Rules 1967 prohibits executors who have renounced from taking a representation to the same deceased in another capacity. This prevents the appointed executors in this matter from applying for administration with the will annexed. Accordingly, if the Registrar's order were to stand, there would no one eligible to apply for a grant in respect of this estate.
4.In the Will of Ruane [1959] QWN 32 is precedent of an Australian court granting letters of administration with the will annexed to a person with no interest under the will in circumstances where the sole executor renounced and was the sole beneficiary of the will. This case supports the proposition that the class of persons under general law who are eligible to apply for a grant of administration with the will attached is not limited to beneficiaries of the will.
5.The purpose of probate applications is to enable estates to be administered expeditiously. In our respectful view, the Court ought to be inclined to exercise its discretion in favour of allowing a grant especially in circumstances such as this one where granting the application will not prejudice anyone because both beneficiaries of the will have consented to the writer's application. Such an approach is consistent with ) 1 rr 4A and 4B of the Rules of the Supreme Court 1971, which apply to non-contentious probate matters pursuant to r 3(1) of the Non-contentious Probate Rules 1967. We have also noted in the writer's affidavit that the two executors appointed by the will who are also the only beneficiaries of the estate do not speak to each other. Hence, an application by them to become joint executors or administrators would hinder rather than facilitate the proper administration of the estate.
On 28 October 2019 Registrar Whitbread provided reasons for decision to Mr London:
1.Whilst paragraphs 1 and 3 (of your letter of 24) are correct they serve only to eliminate possible bases for making the grant. They do nothing to advance your contention that there was an error in the dismissal of application PRO 6066/2019.
2.It is the last observation in paragraph 2 (of your letter) that is critical. Section 36 of the Administration Act 1903 must be read, by virtue of s4, as subject to the principles that govern who can obtain a grant of administration with the will annexed where the appointment of an executor had failed or there is no appointed executor who has not renounced. That is confirmed by s18 of the Supreme Court Act 1971, which mirrors earlier statutory provisions.
The result is that standing to apply for a grant of letters of administration with the will annexed is that application in England before the changes effected there by the Administration of Estates Act 1925. That standing is set out in the 27^th edition of Tristram and Coote at p. 180. The application in PRO 6066/2019 has no standing thereunder.
3.As to paragraph 4 (of your letter), the Queensland case of Ruane does not support the applicant's contention that the dismissal of the application in PRO 6066/2019 was incorrect. As the (very limited) report of Ruane makes clear, the applicant there was in fact next of kin of the deceased. That is not so here. The applicant in PRO 6066/2019 has no connection to the estate.
4.Paragraph 5 (of your letter) invites an obvious response. Of course public policy requires that estates be administered. However since 1529 at the latest, there has run through the English law, which law this jurisdiction has inherited, an adamant principle that an administrator must have a connection to the estate: that was the principle that seized control of the personality of the deceased from the Bishop's ordinary (the executive power exercised over the entire diocese).
The need to have an estate administered does not justify making a grant of administration something that is at large, or the subject of commercial arrangements. An arrangement where an appointed executor renounces with the intent that a solicitor should apply is an objectionable artifice. There is nothing in particular conveyed by the fact the applicant is a solicitor; the principle the applicant contents for in PRO 6066/2019 would apply to anyone to whom consent was given (regardless of their occupation).
In circumstances where the last available executor is intent on renouncing, then either trustee companies or the Public Trustee become the appropriate applicant for a grant. That is a circumstance such bodies exist for.
I agree with Registrar Whitbread's statement of the law.
Mr London filed a notice of appeal dated 29 October 2019, which relevantly stated:
[1]This is an appeal de novo.[1]
[1] Estate of Nicholls [2003] WASC 85 [14].
…
[5]As stated in paragraph 2 of the learned Registrar's letter, the general law principles incorporated into the Supreme Court of Western Australia's inherent jurisdiction are those applying in the United Kingdom before the changes effected by the Administration of Estates Act 1925 (UK). Section 73 of the Court of Probate Act (20 & 21 Vict c 77), 1857 Act (UK) was in force as originally enacted until the time it was repealed by s 56 of the Administration of Estates Act 1925 (UK).[2] Section 73 provided, inter alia, that where a person died leaving a will affecting personal estate but without having an executor willing and competent to take probate and it appeared to the court to be necessary or convenient by reason of special circumstances to appoint some person to be the administrator of the personal estate other than the person who would otherwise have been entitled to a grant under law, the court was given the discretion to appoint such person as the court thought fit to be administrator. Accordingly, contrary to paragraph 2 of the learned Registrar's letter, the Supreme Court of Western Australia does have the discretion to give the appellant in this case standing to take a grant of administration with the will annexed.
[2] Tristram and Coote's Probate Practice, Butterworths, 21st ed (1960) p 780 fn (m).
[6]It is submitted that the present circumstances are sufficiently 'special' to warrant a grant. The special circumstances relevantly include the following facts:
(a)The executors appointed under the deceased's will do not speak to each other;
(b)The executors have both renounced;
(c)The only beneficiaries under the will are the same persons who have already renounced probate;
(d)The beneficiaries/executors, before requesting the appellant to apply for a grant, requested the Public Trustee to apply, but the Public Trustee declined to do so (the appellant seeks leave to file an affidavit deposing to this fact if required); and
(e)If the learned Registrar's decision that the beneficiaries' only option is to request a trustee company to administer the deceased's estate were to stand, this would not be concomitant with the interests of justice because:
(i)It would be to the detriment of the estate/beneficiaries due to:
(A)The delay in the administration of the estate resulting from the need to engage a trustee company to apply for a fresh grant;
(B)The extra expenses which would burden and be charged to the estate by the trustee company and the Court in respect of a fresh application for a grant; and
(C)The beneficiaries being content with the proposed appointment of the appellant as administrator but not having desired to appoint a trustee company; and
(ii)The only person who would benefit would be the trustee company.
In the Goods of Anne Warren [1867] 1 LR P&D 538 is authority for the proposition that the court may exercise its discretion under the said s 73 to grant administration with the will annexed to her attorney, a stranger in blood.
The present beneficiaries filed consents to the appellant's application, not powers of attorney, but they are prepared to execute and file powers of attorney appointing the appellant their attorney for the purpose of applying for administration with the will annexed if the court so requires.
The general rule is that the court will not grant administration to a person who has no interest in the estate: See Farrell v Brownbill (1864) 3 Sw & Tr 467; Bullar (1870) 22 LT (NS) 140; Richardson (1871) 2 P&D 244; Teague v Wharton (1871) 2 P&D 360; Hale (1874) 3 P&D 207; Prosser (1876) 11 LR Eq R 37; Potter [1899] p 265; Brotherton [1901] 139. The authorities overwhelmingly support that general rule.
To the extent that there are authorities to the contrary they should be seen as anomalous exceptions to the rule. In Farrell v Brownbill the order was made by consent. Sir J.P Wildes' reasons simply state 'As all the parties consent, I see no objection to the application'. In Potter the administrator, who had previously been appointed as administrator and receiver pending suit, was appointed by the agreement of the parties as part of a settlement of litigation. Gorrell Baines J held that there were 'special circumstances' so as to bring it within s 73 of the Probate Act 1857 (20 & 21 Vict 77).
In this matter the general rule should be followed. The fact that the beneficiaries do not 'get on' does not amount to a special circumstance. This is a common feature of probate.
I accept that it may be more expensive to employ a trustee company. However, the additional cost is 'self‑inflicted'.
The long established rule of probate practice should be followed.
The appeal is dismissed.

Order

1.Appeal dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MDM
Associate to the Honourable Justice Curthoys
5 DECEMBER 2019