Re Russell;
[2009] WASC 233
•20 AUGUST 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE RUSSELL; EX PARTE VAN DER KWAST [2009] WASC 233
CORAM: REGISTRAR C BOYLE
HEARD: ON THE PAPERS
DELIVERED : 20 AUGUST 2009
FILE NO/S: P 1264 of 2009
MATTER :In the Estate of Esther Jean Russell
EX PARTE
MAREE-LOUISE VAN DER KWAST
Applicant
Catchwords:
Will lost after death of will-maker - no copy or reconstruction available - form of representation appropriate - observations on flexibility of jurisdiction
Legislation:
Administration Act 1903 (WA), s 34, s 46
Trustees Act 1962-1978 (WA), s 63, s 92
Result:
Application granted
Category: B
Representation:
Counsel:
Applicant: Mrs M Van Der Kwast
Solicitors:
Applicant: Dwyer Durack
Case(s) referred to in judgment(s):
Guardian Trust and Executors Co of New Zealand Ltd v Public Trustee of New Zealand [1942] AC 115
Hewson v Shelley [1913] 2 Ch 13
In the Goods of Benjamin Campbell (1828) 2 Hagg Ecc 555; 162 ER 955
In the Goods of Dost Aly Khan (1880) 6 PD 6
In the Goods of James Wright [1893] P 21
In the Goods of Prince Peter Georgevitch Oldenburg (1884) 9 PD 234
In the Goods of Sir Theophilus John Metcalf, Bart, (1822) 1 Add 343
Koerstz v Norman [2008] NSWSC 133
Re Levy [1953] VLR 652
Taylor v Waters, Supreme Court of NSW, 19 June 1992, BC9201800
REGISTRAR C BOYLE: In this application I made a grant, there being some urgency, and indicated that I would publish reasons later. These are those reasons.
There is a question as to the form of representation that is appropriate in this estate. The deceased had a will, but it now cannot be found. Nor can any copy. Nor is it possible to reconstruct, even partly, what the terms of that will were (or are).
It is necessary to set out the background.
The deceased, Esther Jean Russell, died on 26 February 1998. The necessity to obtain a grant of representation in her estate only recently became apparent.
The deceased was survived by her husband Douglas William Russell. He was her third husband. He is still alive but he is incapable. On 26 May 2008 the State Administrative Tribunal made an order under the Guardianship and Administration Act1990 (WA) appointing as joint plenary administrators of his estate Lyall John Causby and Laraine Barbara Kohler. It was asserted that they are the persons entitled to representation. They applied pursuant to s 34 of the Administration Act 1903 (WA) by their attorney, a legal practitioner.
The evidence shows that in June 1979 Mrs Russell executed a will. It had been prepared by solicitors. The solicitors retained the will after it was executed but released it to the deceased in March 1980. There is evidence that it was last known to have been in the possession of the husband of the deceased after her death but before July 2008. What is known is set out in par 7 of the applicant's affidavit and, while of necessity much of it is indirect, it is the best evidence available. I find that at her death the deceased did have a formally valid will. I find also that it cannot now be found, despite the diligent searches that are sworn to in the affidavit of the applicant.
What usually happens when a will is lost or destroyed after the death of the deceased is that a copy is proved. That leads to the second critical and unfortunate circumstance. No copy of the will can be found, and there is no available material from which the terms of the will can be reconstructed. The solicitors who prepared the will (not those acting in this application) have destroyed their file and with it any file copy of the will. No prudent solicitor ever destroys a will file until it is known that a grant of representation has been obtained, and the estate has been administered. But since I am not here concerned with matters of professional obligation, it is not for me to take that any further.
Possible forms of representation
So the question is, what form of representation is appropriate when it is known that the deceased had a will at her death, but no copy of that will is available and it is not possible to reconstruct its terms?
Although it might at first seem banal to do so, it is illuminating to set out in a table the most common forms of non-contentious grant, and the circumstances in which they are made:
Circumstance
Applicant
Grant
Will
Executor
Probate
Will
Non-executor
Administration with will annexed
Intestacy
Various possibilities
Administration
When what might be thought to be the complete set of possibilities is laid out that way, the gaps become obvious. One is the situation that applies here. What to do, and why?
Jurisdictional foundations
There is more flexibility than the tabulation above might imply. The Court is invested with the jurisdiction formerly exercised by the ecclesiastical courts before 1875, so older decisions are illustrative of the breadth of the jurisdiction.
In the Goods of Dost Aly Khan (1880) 6 PD 6 concerned the affairs of the late minister of finance to the Shah of Persia. Dost Aly Khan Nizamad Dolé died in March 1873, having executed a will valid by Persian law. In accordance with the system of law the name of which is now rendered in English as Sharia or Shari'a ('Sharâ' is used in the report), the will was taken into the custody of the ecclesiastical authorities. Again, in accordance with that system of law, the ecclesiastical court retained the original will and would release no copy of it. Instead, the presiding 'Moojatahed' would give under his hand and seal to each person inheriting property a document that set out the property that person had inherited. This document was the only evidence of the legatee's entitlement required or available under the domestic law. Shari'a law in fact imposes limitations on testamentary freedom that go some way toward explaining these procedures: see Warnock-Smith and De La Rosa, Shari'a Succession Rules: Planning and Disputes, STEP Journal, Vol 17 issue 6 at 35.
The deceased had money to his account with the Bank of England. The legatee of that property, Dost Mahomed Khan Moayeral Menalik, applied for, and obtained, letters of administration of the property referred to in a translation of the Persian document given the legatee. It is not clear from the report whether the translation was to be annexed to the grant, although it seems likely.
In the Goods of Prince Peter Georgevitch Oldenburg (1884) 9 PD 234 concerned a deceased member of the Russian royal family. Under Russian law, no testamentary disposition of a member of the royal family was valid or of any effect unless approved of by the Emperor, who had absolute authority to dispose of the deceased royal's property as he might see fit. Notwithstanding that restriction, the deceased had made a will and two codicils. Following his death the members of his family met and, by a document referred to as an 'acte definitif' (equivalent to a deed in English law), agreed as to the distribution of his property. The Emperor had confirmed this document. By it, certain shares in an English-registered railway company were decreed to pass to Prince Alexander Oldenburg. The Prince, through his attorney, moved for a grant of representation. In this case, the report is clear as to the form of grant, because the order is set out in full as a footnote. It was a grant, not of letters of administration with the acte definitif annexed, but of probate. What was to be admitted to proof was the acte definitive in Russian,
… or a duly verified translation thereof …. the said exhibit purporting to be the final act respecting the fulfilment of the testamentary dispositions of the said deceased, confirmed by His Imperial Majesty the Emperor of Russia under his hand …. and as such by the law of Russia containing the only last will and testament of the said deceased.
When James Wright died on 1 May 1887, there was no will immediately to be found: In the Goods of James Wright [1893] P 21. He was, however, thought to have made one. Evidence emerged that there had been a will, but it had been accidentally destroyed. An order was served on the widow, directing her to attend and be examined as to her knowledge of the deceased's will. The report notes that not only had she not obeyed the order, she was believed to have left the country. The court made a grant of administration to the son of the deceased, limited until the original will or an authentic copy be brought into the registry.
In In the Goods of Benjamin Campbell (1828) 2 Hagg Ecc 555; 162 ER 955, a will known to have been in existence after the death of the testator was accidentally lost and no copy could be found or reconstruction made. The court granted administration to the widow, limited until the original will could be found.
In In the Goods of Sir Theophilus John Metcalf, Bart, (1822) 1 Add 343, 121 ER 121, the deceased died in England, having shortly before told his relations and friends that he had made a will some years previously while in India. The will was in the process of being recovered from India, but that would take some time (if it arrived at all). A limited grant of administration was given to the widow. It was limited until the will be proved, but also as to the property the administrator could deal with. This might be thought of as a simple case of a grant ad colligendum bona defunctii, but it was not expressed that way and, as I suggest below, the reasons for the restrictions as to property might not be those that first occur to the modern reader.
Those older cases find a recent resonance in Koerstz v Norman [2008] NSWSC 133. There, the original of the deceased's will had been destroyed after her death. There was evidence as to who it appointed executor (he had predeceased her), and its terms. Young CJ in Equity thought that the proper form of grant of letters of administration with a copy of the will annexed should not be limited until the original will or a more authentic copy be produced. His Honour referred with approval to the earlier reasoning of Powell J in Taylor v Waters, Supreme Court of NSW, 19 June 1992, BC9201800.
The present application
The applicant moves for a grant of letters of administration. That this is the correct form of representation seems to follow from the authorities referred to above, and as a result of eliminating other possibilities. It is not possible to prove a will. There can therefore be no grant of probate. For the same reason, there can be no grant of administration with a will or a copy will, or secondary evidence of the terms of a will, annexed. That leaves administration simpliciter, which is usually made where the deceased died intestate, but perhaps is more strictly to be made in circumstances where no will can be proved.
Limits on the grant?
The next question is what limits should be placed on the grant. It seems appropriate to limit the grant until a valid will, or a copy of one, be proved. In Koerstz v Norman, Young CJ in Eq was prepared to make a grant without any such limitation, but in that case he had positive evidence that the original will had been destroyed. Limiting the grant ‘until the original will be proved' would imply that the original will might still be proved, which was contrary to what had been found on the evidence.
Then, there is the question of whether the administrator's power to deal with the property of the deceased should be limited in any way. That seems to have been done in a number of the older cases, of which Metcalf is one. However, as I indicated earlier, the reasons for the limitation on the administrator's power in the older cases might not be what one supposed. Until the early years of the twentieth century, it was held that the holder of a grant that was later revoked could not convey an unimpeachable title to the real property of the deceased, even to a purchaser for valuable consideration. That rule was overturned in Hewson v Shelley [1913] 2 Ch 13. The rule had been much criticised in judicial circles and by others, including Charles Dickens in chapter XLIV of the Pickwick Papers.
The question of the form of representation should not be confused with the question of who is entitled to the estate of the deceased. By making a grant of administration without any will annexed, it seems to me that the court is not making any determination as to who is entitled in distribution. The grant confers on the administrator the authority as a matter of law to deal with the property of the deceased. But an administrator who pays out from the deceased estate to anyone other than those truly entitled does so at his or her peril. Consider, for example, Guardian Trust and Executors Co of New Zealand Ltd v Public Trustee of New Zealand [1942] AC 115, a decision of the Privy Council. In that case the appellant as institute executor had obtained a grant of probate. It paid out legacies under the will, even though it had received clear warning that relatives of the deceased intended to apply to set aside the grant on the ground that the deceased had lacked testamentary capacity. That in fact is what happened, and the respondent obtained a grant of letters of administration on intestacy. The appellant was found liable to account to the administrator for the legacies so paid out. See also Re Levy [1953] VLR 652.
For those reasons, I think that there is no cause to make other than a full grant of administration as to the property of the deceased. Mrs Van der Kwast for the applicant pointed to the protection of s 46 of the Administration Act, and the provisions of s 63 and s 92 of the Trustees Act 1962-1978 (WA), as reasons not to limit the grant, and I think that is correct.
Accordingly the grant that was made was limited until a will (original or copy) be proved and also, consistently with s 34 of the Administration Act as the applicant is attorney, until the plenary administrators of the incapable widower come into the jurisdiction.
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