Mercuri v Petta
[2005] VSC 199
•17 June 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
PRACTICE COURT
No. 5701 of 2005
IN THE MATTER of the Will and Estate of GIOVANNINA PETTA (deceased)
- and -
IN THE MATTER of an Application pursuant to Section 15 of the Administration and Probate Act (1958) (as amended)
B E T W E E N :
| ROSA MERCURI and CONCETTA PANSINO | Plaintiffs |
| V | |
| GIOVANNI PETTA and ANTONIO PETTA | Defendants |
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JUDGE: | Byrne J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 June 2005 | |
DATE OF JUDGMENT: | 17 June 2005 | |
CASE MAY BE CITED AS: | Re Petta | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 199 | |
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ADMINISTRATION and PROBATE – application summoning executor to prove or renounce probate - application for administration – whether Court should make order for grant of administration subject to compliance with requirements of Registrar of Probate.
Administration and Probate Act 1958 s. 15
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr A.J. Verspaandonk | Russo Pellicano Carlei |
| For the Defendants | Mr D. D’Orazio | Portelli & Co |
HIS HONOUR:
Giovannina Petta died on 1 August 2002 leaving a last will dated 26 November 1991. In the will she appointed her husband to be her executor and sole beneficiary but, in the event of his predeceasing her, she appointed to be her executors her two sons Giovanni Petta and Tony Petta who are the defendants to this application. Having regard to the prior death of her husband, her estate was, under the will, given to the executors upon trust for sale with the proceeds, after payment of the usual expenses, to be divided equally between her five children, that is the two sons and her three daughters.
It seems that, for reasons which are of no present concern, the sons have failed to prove the will or to realise the estate, which for the most part comprises the family home. Accordingly, Rosa Mercuri and Concetta Pansino, two of the three daughters, have applied by originating motion filed on 26 April 2005 for orders pursuant to s. 15 of the Administration and Probate Act 1958. The section is in the following terms:
“15. Executor etc. neglects to prove, renounce or bring in the will
The Court shall continue to have power to summon any person named as executor in any will to prove or renounce probate of the will and to do such other things concerning the will as have heretofore been customary and in particular and without limiting the generality or effect of the foregoing provision in any case where the executor named in a will or any person having possession of any will neglects to bring such will into court within six weeks from the death of the testator or where the executor named in a will neglects to prove the same or renounce probate thereof within six weeks from the death of the testator any party interested under such will or in the estate or the State Trustees or any creditor of the testator may apply to the Court for an order calling upon the executor or any person having possession of such will to show cause why he should not bring such will into court or why such executor should not prove the same or renounce probate thereof or in the alternative why administration with such will annexed should not be granted to the applicant and upon proof of service of the summons, if the executor or such person does not appear or show sufficient cause as aforesaid, it shall be lawful for the Court to make an order upon such executor or person to bring such will into court and make such order in the premises and as to costs as appears just and the Court may grant administration of the estate to such applicant.”
It seems that this has brought matters to a head. In due course, as directed by the Court on 12 May 2005, the executors have brought the will into court. Mr Giovanni Petta has renounced probate and Mr Tony Petta has agreed to apply for probate with a view to carrying out the terms of his late mother’s will.
So much calls for no comment and I made orders that the renunciation of probate by Mr Giovanni Petta be filed and that the will be released to the solicitors for Mr Tony Petta to enable his application for probate to be made. The point of difficulty arose when counsel for the plaintiffs asked me to make forthwith an order that probate be granted to the secondnamed defendant. When I queried how this might be done when no application was before me and little, if any, of the usual paperwork had been completed, I was told of a practice that has been followed in this jurisdiction that such an order may be made subject to compliance with any requirement of the Registrar of Probates. For reasons which will appear, I was resistant to this course. I was disposed to return the file to the Registrar of Probates so that the probate application might be processed by him in the normal way.
It has been established by authority that the power to grant probate under s. 15 is not available to the Registrar; where the section says in its final words that the Court may grant administration to the applicant, it means that only the Court itself may do this[1].
[1]In re Sturt [1942] VLR 129
Nevertheless, since a grant in this case was not to be made to the plaintiffs but to the secondnamed defendant, it could not in any event be made under s. 15. There is, therefore, no impediment to the Registrar dealing with the secondnamed defendant’s application for probate in the usual way pursuant to s. 12.
I return, however, to the suggested practice under which I might make an order for administration, whether under s. 15 or otherwise, subject to the Registrar being satisfied that the application was in order. Such an order, if made, would be authenticated with the consequence that administration would then be deemed to be granted[2]. The advantage of the practice, where it is adopted under s.15, is that it would save the parties the trouble and expense of returning to the Court for an order for administration when the requirements of Ch III Order 3 for the making of a grant have been satisfied.
[2]Section 12(3)
The practice seems to me nevertheless to be a highly undesirable one for the following reasons at least. First, a grant of administration is an order in rem which has legal consequences as to the rights of beneficiaries, as to the rights and duties of executors or administrators and as to the title to property[3]. It is undesirable that such an order should be, as it were, subject to a condition subsequent. Second, it may be that when the application is made to the Registrar it might appear that there is some doubt about the validity of the will, a caveat is lodged or that, for some other reason, the matter should be referred into court. In that event, the application for a grant of administration referred into court is considerably complicated by the fact that an order has already been made granting administration. Third, similar complications would arise if it should appear, following advertisement or otherwise, that a later will exists, so that the conditional grant must be revoked before probate or administration may be granted of the later will.[4]
[3]See, for example, s. 13(1)
[4]Section 9. See, also, s. 10
In Sturt’s case, the report shows that Gavan Duffy J stated that he would read the affidavits in support of the grant of administration and, if he were satisfied that they were in order and an affidavit of further searches for caveats is filed and discloses no caveat, he would make the grant[5]. I take this to mean that his Honour, having read the affidavits, would advise the parties that they appear to be in order and would invite them to file the affidavit of searches. Doubtless this is a course open to the Court in the appropriate case. I leave to one side the question whether the consequential order may be pronounced in chambers rather than in open court, a matter about which I express no view. This is, of course, a very different procedure from the practice which I was told has been adopted.
[5][1942] VLR 129 at 129-30
This is not to say that the Court might not, in the appropriate case, indicate a disposition to make an order for the grant of administration, such order to be made upon the performance of some act. In such a case, no order is made until the act has been performed. I would suppose, however, that, even this course, would not be adopted where the requirements for a grant had not already been substantially satisfied.
Having given consideration to the matter and having discussed the matter with the Registrar of Probates, I have concluded that the suggested practice ought not to be followed. An alternative to the course proposed in Sturt’s case is for the Judge to refer the papers to the Registrar for consideration with the request that, if they are found to satisfy the requirements for a grant of administration with the will annexed, the Court be advised of this fact. The Court would then have regard to this advice when deciding whether to make an order for administration.
I add one further observation in the light of a practical matter raised by the Registrar of Probates. An application of the kind presently under consideration is brought by originating motion[6] filed in the office of the Prothonotary. As such, it is not brought to the attention of the Registrar of Probates as might be the case in other proceedings which might have the consequence of the making of a grant of administration and which are filed in his office. It is therefore administratively desirable that any order for grant of administration made under s. 15 contain a direction that a copy of the order be served on the Registrar of Probates.
[6]Ch III R.3.02(a).
In this case I released the will to the solicitors for the executor, Tony Petta, to enable him to have prepared and lodged an application for probate pursuant to s. 12 of the Administration and Probate Act 1958. I also made consequential orders.
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