Re Korp

[2005] VSC 337

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
IN ITS PROBATE JURISDICTION

IN THE MATTER of the Will and Estate of Joseph William Korp

Application by:

Gust Korp   Plaintiff

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JUDGE:	Whelan J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 and 17 August 2005
DATE OF RULING:	16 August 2005
CASE MAY BE CITED AS:	In the Matter of Korp
MEDIUM NEUTRAL CITATION:	[2005] VSC 337

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SUCCESSION – Wills, probate and administration – Letters of administration – Application to represent deceased in a proceeding – Preservation of certain assets of estate before grant of probate.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Marshall	Kavanagh Lawyers
No other appearances

HIS HONOUR:

1. This is an application for letters of administration in peculiar circumstances.  The application is twofold.  On the one hand it is to collect and preserve certain assets, the concern being that their value may depreciate if their realisation is delayed until probate is granted.  The second is to represent the deceased in a proceeding, being proceeding no. 7333 of 2005.

1. The application was initially supported by an affidavit sworn by the plaintiff applicant, Mr Gust Korp, on 16 August 2005.  Mr Gust Korp, in that affidavit, deposed to the fact that he is the brother of the deceased, Joseph William Korp, who died on 12 August 2005.  

1. He swore that the deceased left a will made 11 August 2005, which names him as executor.

1. Amongst the provisions in that will is a provision referring to a video produced by the deceased.  That provision is to the effect that Mr Gust Korp, the deceased’s brother, is to sell the video to whomever he feels is “the best option”, and provision is then made for division of what are described as the proceeds.

1. In his affidavit, Mr Gust Korp deposed that he wishes to follow the provisions in the will, and in particular, this provision concerning the video, and he believes that its value will decline if he cannot realise it until probate is granted, which will be not before the elapse of some months.

1. In his affidavit he also refers to an autobiography and to a diary apparently maintained by the deceased.

1. Proceeding no. 7333 of 2005 is a proceeding in which the deceased is a defendant.  In that proceeding on 1 August 2005, Justice Mandie made an order authorising a will to be made for Maria Matilde Korp.  This is an order which affects the position of the deceased and of the deceased’s estate.

1. After the matter was initially heard, it was stood down for further material to be sworn.  Two further affidavits were then relied upon.  The first was a further affidavit by Mr Gust Korp in which he deposed that he intended to apply for probate and had instructed his solicitor, Mr Michael Kavanagh, to make that application.

1. A further affidavit was also sworn by his solicitor, Mr Michael Kavanagh.  That affidavit indicates that he has acted for and advised members of the Korp family.  It also indicates that he telephoned Mrs Leonie Korp on 16 August 2005 to ask of her attitude to this application and she, in effect, indicated that she wished the executor to follow the deceased’s wishes.

1. Mr Kavanagh also swears that in his position as a solicitor, he has received inquiries from media outlets about the diary and the video and as a result of his dealings with those outlets, he has been told that those items would be of “notably greater fiscal value in the next two to three weeks, compared to their value in two to three months.”

1. Applications of this kind are made to meet contingencies which need to be dealt with in the administration of an estate before a grant of probate or general administration is made.

1. In my view, it is appropriate to make an order in relation to the litigation.  As to the appropriateness of such an order in order to enable an appeal to be prosecuted, I refer to McLean v Sydney Water Corporation.[1]

   [1][2001] NSWCA 122.

1. In relation to the other matter, my only concern is the position of the estate.  The material suggests the value of at least two assets of the estate, the video and the diary, may decline if not dealt with.  I think in those circumstances I should make the order.  I otherwise say nothing of the course envisaged of, in effect, selling the deceased’s videotape and diary to the media.  My order is by no means an endorsement by the Court of the course proposed.

1. I will not make any order concerning the deceased’s autobiography as it does not appear to me that the material presently establishes any need to do so in advance of the grant of probate or general administration.

1. This application has not been advertised, but in the circumstances, I do not consider that is an impediment to the order sought.  In that respect I refer to Greenway v McKay.[2]

   [2](1911) 12 CLR 310.

1. I do not consider in the circumstances here that a surety, under s 57 of the Administration and Probate Act 1958, is warranted.  I have reached that conclusion for the reasons Brooking J reached the same conclusion in Re Tratt (deceased).[3]

   [3][1980] VR 657.

1. Accordingly, the order I make is that letters of administration of the estate of the above named Joseph William Korp, late of 4 Hilton Street, Craigieburn in the State of Victoria, manager, be granted to Gust Korp of 6 Baudelaire Avenue, Wantirna in the said State, bus driver, limited for the purpose only of him:

(a) representing the said deceased estate in conducting negotiations with respect to the publication of the videotape and diary referred to in paragraphs 14(a) and (c) respectively of the affidavit of Gust Korp sworn 16 August 2005, making an agreement concerning that publication, and investing any proceeds received in the name of the estate in an investment appropriate for the investment of trust money;

(b) representing the said deceased in proceeding no. 7333 of 2005, and in particular, in any appeal from, or application to set aside, the order made in that proceeding by Justice Mandie on 1 August 2005

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.

1. I will further order that the plaintiff be at liberty to apply to the Court further hereinafter from time to time for the purpose of administering the said estate as he may be advised.

1. I will order that the plaintiff’s costs of this application be paid and retained out of the estate of the deceased and I will direct that this order be prepared by the solicitors for the plaintiff and signed by the Judge.

1. I will direct that the affidavit of Mr Kavanagh, sworn today, remain confidential and not be inspected without leave of the Judge.