Re Mutch
[2018] VSC 619
•17 October 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S PRB 2016 20507
IN THE MATTER of the will and estate of ELVA MAISIE MUTCH, deceased
APPLICATION BY:
| LESLIE JAMES CLARKE | Plaintiff |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 17 October 2018 |
CASE MAY BE CITED AS: | Re Mutch |
MEDIUM NEUTRAL CITATION: | [2018] VSC 619 |
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PROBATE − Application by plaintiff for grant of administration with the will annexed − Where plaintiff not a beneficiary of the estate − Standing of plaintiff − Where plaintiff foreshadowed claim for family provision from the estate − Due and proper administration of estate − Application dismissed − Fodor v Simudvarac [2014] VSC 227 − Mataska v Browne [2013] VSC 62.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W F Gillies | Law Albury Wodonga Pty Ltd |
HER HONOUR:
Introduction
Elva Maisie Mutch died on 4 November 2015, leaving a will dated 15 December 1969. The deceased’s husband predeceased her and she had no children. The deceased’s estate is valued at approximately $120,000.
The deceased’s will appoints her two sisters as the executors of the estate and does not nominate any substitute executors. The deceased’s two sisters predeceased the deceased. The will leaves a gift of $300 to the deceased’s father and the residue of the estate upon trust to the Spastic Centre of New South Wales. The deceased’s father predeceased the deceased. The Spastic Centre of New South Wales no longer exists and its successor in title is the Cerebral Palsy Alliance (‘the charity’).
On 7 December 2016, the plaintiff, in his capacity as the nephew of the deceased, filed an application for letters of administration with the will dated 15 December 1969 annexed.
On 8 December 2016, the Assistant Registrar of Probates raised a requisition, refusing the application, stating that the plaintiff has no beneficial interest in the deceased’s estate.
By letter dated 9 June 2017 to the Registrar of Probates, the plaintiff’s solicitors stated that the plaintiff had standing to make the application ‘as both a potential Part IV claimant and a member of the family of the deceased’.
After further correspondence between the plaintiff’s solicitors and the Registrar of Probates, by email dated 23 April 2018, the Registrar of Probates confirmed that he would not grant the application for the reasons expressed in the chain of correspondence commencing 8 December 2016. Throughout that correspondence, the Registrar of Probates set out succinct reasons for not being able to make the grant of representation to the plaintiff.
On 18 June 2018 the plaintiff filed a notice to produce the file to the Judge in the Trusts, Equity and Probate List.
Plaintiff’s application
The plaintiff asserts that he has standing to be appointed as administrator of the estate on the basis that he is a potential applicant for provision from the estate, pursuant to Part IV of the Administration and Probate Act 1958, principally referring to the decision of Fodor v Simudvarac.[1] Other than asserting that he is an eligible person under the family provision legislation as he was a member of the household of the deceased, no further information is provided as to his potential claim.
[1][2014] VSC 227 (23 May 2014).
The plaintiff informed the Court that the charity, after careful consideration, elected not to make an application for a grant but that it retains its interest as defendant in the matter. The plaintiff indicated that if a family provision proceeding is issued by him, the charity would be named as defendant in that proceeding as the beneficiary of the estate of the deceased.
Consideration
Standing to make an application for a grant of administration is established by a person’s interest in an estate. The person who has the greatest beneficial interest in the estate is the person entitled to a grant of administration.[2] There may be circumstances where this principle may be departed from in the interests of the due and proper administration of an estate, such that the Court may exercise its discretion to appoint a stranger in interest as an administrator of an estate.
[2]See, eg, In the Will of Parsons (deceased) (1887) 13 VLR 169 [171]; In re Gillard [1949] VLR 378; Re Egan [1963] [1963] VR 318; Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014); Van Wyk v Albon [2011] VSC 120 (24 March 2011); Re Gardiner [2016] VSC 541 [23] (9 September 2016).
The decision of Fodor v Simudvarac[3] concerned an application for a limited grant of administration ad litem. The plaintiff claimed that the grant was required in order to undertake an investigation into transactions that occurred during the deceased’s lifetime. The plaintiff alleged that the defendant, who was the executor of the estate, had disobeyed orders of the Victorian Civil and Administration Tribunal and that transfers of the deceased’s interest in real property may have been unconscionable on equitable principles applying to fiduciaries. Those transfers greatly diminished the value of the estate and there was subsequently no need for a grant of probate to administer the estate. A limited grant was considered necessary as it was unlikely that the defendant, who was the named executor and the main beneficiary of inter vivos transfers of the deceased’s property, would undertake the necessary investigations. In the event that the investigations resulted in the property returning to the estate, then a grant of probate would be needed to administer the estate and the plaintiff would be likely to make a family provision claim against the estate.
[3][2014] VSC 227 (23 May 2014).
The plaintiff also referred the Court to the decisions of Mataska v Browne,[4] Re Culina; Poulos v Pellicer[5] and Hogarth v Johnson[6] as relevant case law, but made no submissions in respect of these cases.
[4][2013] VSC 62 (22 February 2013).
[5][2004] NSWSC 504 (11 June 2004).
[6][1987] 2 Qd R 383.
In Mataska v Browne,[7] a limited grant of administration ad litem was also made to a potential Part IV applicant for the purposes of commencing and prosecuting a proceeding against the defendant, seeking to recover the estate’s real property that was subject to inter vivos transactions in favour of the defendant. It was unlikely that the defendant, who stood to benefit as the recipient of the inter vivos transactions, and who was the named executor and the only beneficiary of the estate, would conduct any investigation into the transactions. As with the plaintiff in Fodor v Simudvarac,[8] the plaintiff in Mataska v Browne[9] could only consider making a family provision claim against the estate if the property were returned to the estate.
[7][2013] VSC 62 (22 February 2013).
[8][2014] VSC 227 (23 May 2014).
[9][2013] VSC 62 (22 February 2013).
In Re Culina; Poulos v Pellicer,[10] the deceased left two wills. In the earlier will, the testatrix appointed her son as executor and left him the bulk of the estate. In the later will, the son remained executor, but the estate was left to the deceased’s niece. The son did not apply for a grant of probate of the later will. The niece therefore appointed Mr Poulos as her attorney to apply for a grant of letters of administration with the later will annexed. The defendant was the estranged wife of the deceased’s son and sought to defend the proceeding brought by Mr Poulos. She was engaged in property adjustment proceedings against the deceased’s son in the Family Court, who had little by way of assets, unless the earlier will was proved. The question for the Court was whether the estranged wife had a sufficient interest in the estate entitling her to oppose the application for a grant of letters of administration with the will annexed. The son had no intention of making a claim for provision from his mother’s estate if the last will was proved. The Court held that the wife’s interest was too remote, so that the application for the grant was likely to be successful.
[10][2004] NSWSC 504 (11 June 2004).
In Hogarth v Johnson,[11] the ex-nuptial son of the deceased sought declarations that the two wills of the deceased were invalid and that the deceased died intestate. The claim was brought against the executrix, who was also the sole beneficiary under the two wills, and the deceased’s next of kin, who did not defend the action. The son also claimed further and better provision from the deceased’s estate against the next of kin. The Court held that the extent of the son’s interest depended on the assets in the estate and who might legitimately share in it. Therefore, he had a right to the determination of questions, such as whether the lands subject to gift inter vivos formed part of the estate, and who should administer the estate.
[11][1987] 2 Qd R 383.
The last two cases are factually very different from the circumstances in this proceeding where there is no challenge to the validity of the will, thereby precluding any issue of the plaintiff being entitled on intestacy. The first two decisions demonstrate that an applicant may have standing to obtain a limited grant of administration in circumstances where the applicant has a prima facie case on the basis of a potential family provision claim against an estate.
A limited grant of administration does not confer the same powers, duties and responsibilities as a full grant of administration. To this end, the instances in which this Court has granted limited administration to a potential Part IV claimant does not provide authority that supports the plaintiff’s application for a full grant as administrator with the will annexed of the estate of the deceased. These cases also do not provide authority that it would be appropriate in such circumstances to depart from the long established principle that the grant ought to follow the person or entity with the interest in the estate of a deceased.
Where it is sought to appoint an administrator who is a stranger in interest, such as in the case of the plaintiff, the interests of the beneficiaries of the estate and the due and proper administration of an estate must be considered by the Court. In this proceeding, a relevant consideration is whether the plaintiff would act impartially in the administration of the estate, or whether there may be a potential conflict between his duty and interest.
The plaintiff filed his application in December 2016. It was not until March 2018, following correspondence from the Registrar of Probates, that the plaintiff made any contact with the charity. The plaintiff’s conduct does not demonstrate a willingness on his part to administer the estate in accordance with the will of the deceased, or to act in the best interests of the beneficiary of the estate.
The charity is a corporation, and not authorised by statute to take a grant. An application for letters of administration with the will annexed may be made by a personal nominee, or syndic, of the charity. Such a syndic is the only person that has standing to apply for a grant of letters of administration with the will annexed in the deceased’s estate.
In the event that the charity is not ready to take a grant, consideration should be given to whether State Trustees Limited should apply for letters of administration with the will annexed, pursuant to s 5 of the State Trustees (State Owned Company) Act 1994.
Orders
The plaintiff’s application is dismissed.
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