Ludwig v Houseman - [2018] SASC 51

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
LUDWIG & ANOR v HOUSEMAN & ANOR
[2018] SASC 51
Judgment of Judge Dart a Master of the Supreme Court
19 April 2018
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION
Defendant obtained grant of probate in 2010 - plaintiff obtained a grant of double probate in 2017 - defendant has not administered the estate - plaintiff seeks order revoking or suspending grant of probate made in favour of the defendant.
Held: Grant of probate suspended.
In the Estate of Edwards Deceased (1981) 28 SASR 380; In the Estate of Raymond Francis Stuart (deceased) (2009) 106 SASR 39; Mavridos v Mack (1998) 45 NSWLR 80, considered.

LUDWIG & ANOR v HOUSEMAN & ANOR
[2018] SASC 51
JUDGE DART:

These reasons deal with the resolution of a dispute that has arisen in respect of the administration of the deceased estate of Shirley May Houseman, who died on 29 December 2009.
The plaintiff and defendant are brother and sister and were appointed as the joint executors of their mother’s estate in the subject will. They are the only beneficiaries under the will and share equally in the residue. Originally the defendant, on 17 May 2010, obtained a grant of probate in favour of himself. The plaintiff sought and obtained a grant of double probate on 18 January 2017.
The complaint of the plaintiff is that her brother has taken no effective steps in the eight years since the death of their mother to properly administer the estate. The principal asset in the estate is a residential property at Marion Road, Plympton Park (“the property”). The title of that property has not been transferred in to the name of the executors. It has not been sold. The defendant has continued to reside in the property rent-free. The plaintiff originally consented to that arrangement, but only on the understanding it would be for a short term.
The plaintiff had a solicitor write a number of letters to the defendant, with a view to progressing the administration of the deceased estate and selling the residential property. There was very little response from the defendant. The affidavit material discloses that the defendant has declined requests to vacate the property to allow its sale.
The plaintiff has also raised a concern about the conduct of the bank accounts of the deceased. The defendant was operating the bank accounts. That issue does not fall for resolution at the moment.
The principal concern of the plaintiff is to attend to the sale of the property and to have the defendant vacate the property to allow that process to proceed. The defendant is self-represented and has filed no answering affidavit material. The defendant did not attend Court on 5 April 2018 when the matter came on for hearing. He did attend on 22 March 2018. I directed that the plaintiff provide a copy of her proposed minutes of order to Mr Houseman. It has been established that she did do so on 8 April 2018.
The matter came on for hearing on 13 April 2018, at which time the defendant attended. The parties had still not reached an agreement in respect of the selling of the property. The defendant accepts that the property needs to be sold. The Court has appraisals from three agents. There is no agreement about which agent should be appointed.
The Court’s jurisdiction
In these proceedings the plaintiff seeks an order that the first grant of probate be revoked. As an alternative or interim position the plaintiff seeks to suspend that grant of probate.
As a first step it is necessary to establish the jurisdiction of the Court to make the orders the plaintiff seeks.
In In the Estate of Raymond Francis Stuart (deceased) Gray J held: [1]
The Supreme Court has power to revoke grants of probate and letters of administration pursuant to section 18 of the Supreme Court Act 1935 (SA)[2] and section 5 of the Administration and Probate Act 1919 (SA).[3] The power also forms part of the inherent jurisdiction of the Court.[4]
[1] (2009) 106 SASR 39 at [6].
[2] The court shall, in relation to probates and letters of administration, have the following jurisdiction, that is to say:
(a)The like voluntary and contentious jurisdiction and authority in and for the State in relation to the granting or revoking of probate of wills, and administration of the effects of deceased persons, as was vested in or exercisable by the Court of Probate established in England under the Court of Probate Act 1857, together with full authority to hear and determine all questions relating to testamentary causes and matters:
(b)The like jurisdiction and powers with respect to the real estate of deceased persons as it has with respect to the personal estate of deceased persons:
(c)All probate jurisdiction which, under or by virtue of any enactment not repealed by this Act, is vested in or capable of being exercised by the court.
[3](1) The like voluntary and contentious jurisdiction and authority as immediately before the coming into operation of this Act belonged to or were vested in the Supreme Court, in relation to granting or revoking probate of wills and letters of administration of the effects of deceased persons, shall be vested in and exercised by the said Court in relation to granting or revoking probate of wills and letters of administration of the estate, as well real as personal, of deceased persons within the said State; and the Court shall have the same power of granting probate or administration, where the only estate within the State consists of realty, as if such estate comprised both realty and personalty.
(2)The said Court shall also have and exercise the like powers, and its grants and orders shall have the like effect within the said State, in relation to the real and personal estate therein of deceased persons, as immediately before the coming into operation of this Act the said Court and its grants and orders respectively had within the said State, in relation to those matters and causes testamentary, and those effects of deceased persons, which were within the jurisdiction of the said Court.
(3)All duties which by statute or otherwise were, immediately before the coming into operation of this Act, imposed on or to be performed by the said Supreme Court in respect to probates, or administrations, or matters or causes testamentary within its jurisdiction shall continue to be performed by such Court within the said State.
[4] In the Goods of Loveday [1900] P 154; Bates v Messner (1967) 67 SR (NSW) 187.
In In the Estate of Edwards Deceased[5] Sangster J was considering the jurisdiction of the Court to revoke a grant of probate. His Honour accepted that the Court had an inherent power to revoke or suspend the grant of probate. [6]
[5] (1981) 28 SASR 380.
[6] (1981) 28 SASR 380 at 382.
In Mavridos v Mack Sheller JA was considering the principles upon which a court acts when revoking a grant of probate and observed:[7]
The question is whether the due and proper administration of an estate has been put in jeopardy or has been prevented by acts or omissions of the executor, or by matters personal to the executor, or by other matters establishing the executor is not a fit and proper person to carry out the duties the executor has sworn to perform. It is not a matter of getting close to the position of the grant being useless.
[7] (1998) 45 NSWLR 80 at 108.
The evidence put forward by the plaintiff is uncontradicted. It shows a history of the defendant being un-cooperative and obstructive in respect of the sale of the property. The defendant has attended at Court on at least two occasions. It is clear from what he has said to the Court that he is only prepared to cooperate in the process if it proceeds in the manner that he deems appropriate. The due and proper administration of the estate is being prevented by the conduct of the defendant. That appears to have been the position for nearly eight years. There is no proper explanation for the failure to sell the property.
In my opinion, the due and proper administration of this estate requires the temporary suspension of the first grant of probate. That will permit the plaintiff to conduct the sale of the property without obstruction from the defendant. The suspension of a grant of probate is uncommon. However, I am not satisfied any more is required at the moment.
Once the property has been realised, the Court can re-consider the future administration of the estate and whether to reinstate the defendant as a joint executor.
I will make orders suspending the grant of probate in favour of the defendant and for the sale of the property in terms of the minutes of order settled by me.