ROSALIE DAVIDA HORVATH (DECEASED) - [2007] SASC 200

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of ROSALIE DAVIDA HORVATH (DECEASED)
[2007] SASC 200
Judgment of The Honourable Justice Debelle
30 May 2007
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION
Administration order - whether upon the proper construction of the Administration and Probate Act 1919 the Registrar of Probates is authorised to reseal order made by High Court of New Zealand to administer estate of deceased person - whether applicant has complied with Rule 50.01 of the Probate Rules 2004 - factors to be considered before making order pursuant to Rule 50.06.
Administration and Probate Act 1919 s 4, s 8, s 17, s 19, s 20; Administration of Probate Act 1929 (ACT) s 88, s 92; Crown Entities Act 2004 (NZ) s 7, s 13, s 15; Probate Rules 2004 R 50.01. R 50.06; Public Trust Act 2001 (NZ) s 7A, s 80; Public Trustee Act 1930 (Tas) s 17, s 18; Public Trustee Act 1941 (WA) s 10(1); Public Trustee Act 1978 (Qld) s 29, s 31, referred to.
Estate of Williams [1914] VLR 417; Hewson v Shelley [1914] 2 Ch 13; Isle of Wight Railway Co v Tahourdin (1883) 25 Ch D 320; re Bertram [1904] St R Qd 42; re Galletly (1900) 10 QLJ 74; re Prendergast [1902] QWN 78; re Smith [1901] SALR 34; Victorian Chamber of Manufacturers v The Commonwealth (1943) 67 CLR 335; Will of Finn (1908) 8 SR (NSW) 32; Will of Thornley (1903) 4 SR (NSW) 246, applied.

In the Estate of ROSALIE DAVIDA HORVATH (DECEASED)
[2007] SASC 200
Testamentary Causes Jurisdiction

DEBELLE J. This is an application for directions made by the Registrar of Probates pursuant to s 8 of the Administration and Probate Act 1919. Section 8 provides:
In any case where it appears to the Registrar doubtful whether probate or administration should be granted, or whether he should exercise any power or discretion appertaining to his office, he shall obtain the direction of a Judge, and act accordingly, and the Registrar shall be subject in all cases to the control and orders of the Court.
The Registrar seeks direction on three questions. The first question is whether upon the proper construction of the Administration and Probate Act and in the circumstances which have happened the Registrar is authorised to reseal an order made by the High Court of New Zealand to administer the estate of a deceased person.
Rosalie Davida Horvath was a medical practitioner. She died at Adelaide on 23 April 2005. She was domiciled in South Australia. The deceased had assets in both Australia and in New Zealand.
The deceased had made a will dated 19 January 1987. It is her last will. By that will she appointed her daughter Noemi Horvath and her son George Csaba Horvath as executors and trustees of her estate. Both her children survived her.
By her will the deceased bequeathed her medical equipment to her daughter and made another legacy to her son and daughter. She then bequeathed the residue of her estate to her son and daughter in equal shares.
In New Zealand, the office equivalent to Public Trustee is Public Trust. Public Trust is a Crown entity for the purposes of s 7 of the Crown Entities Act 2004 (NZ): see s 7A of the Public Trust Act 2001 (NZ). Section 13 of the Crown Entities Act 2004 establishes statutory entities which by s 15 are prescribed to be statutory corporations. Public Trust like Public Trustee is a statutory corporation. Public Trustee is a corporation sole. Public Trust is administered by a board. It is a corporation aggregate. The distinction between the two kinds of corporation is immaterial to the issues in this matter.
The son and daughter of the deceased asked Public Trust to administer the estate of the deceased in New Zealand. The gross value of the estate in New Zealand was quite small. Public Trust applied pursuant to s 80 of the Public Trust Act for an order that it administer with the will annexed all the real and personal estate of the deceased. On 2 August 2006, the High Court of New Zealand granted the application. The order is entitled “Order to Administer with Will Annexed”. The relevant part of the order was that “Public Trust shall be administrator with will annexed of all the real and personal estate of Rosalie Davida Horvath formerly of Christchurch, Doctor, but late of Adelaide in Australia, deceased”. The effect of the administration order is that Public Trust is able to administer the estate in the same way as a person to whom letters of administration with the will annexed had been granted.
Public Trust has applied to reseal in this State the order granting it the administration of the estate of the deceased. The question is whether the Registrar has the authority to reseal the order.
An original grant of probate or administration will not be made to a foreign corporation: Will of Finn (1908) 8 SR (NSW) 32. However, a grant made in another jurisdiction to a corporation authorised to act as an executor or administrator by the law of that jurisdiction may be resealed under section 17 of the Administration and Probate Act: re Smith [1901] SALR 34; Will of Thornley (1903) 4 SR (NSW) 246; Estate of Williams [1914] VLR 417. The decisions of re Prendergast [1902] QWN 78; re Bertram [1904] St R Qd 42 and re Galletly (1900) 10 QLJ 74 turn on their own facts.
Section 17 of the Administration and Probate Act provides:
When any probate or administration granted by any Court of competent jurisdiction in any of the Australasian States or in the United Kingdom, or any probate or administration granted by a foreign court, is produced to and a copy thereof deposited with the Registrar, such probate or administration may be sealed with the seal of the Supreme Court, and thereupon shall have the like force and effect and the same operation in this State, and every executor and administrator thereunder shall, subject to subsection (4) of section 65 of this Act, have the same rights and powers, perform the same duties, and be subject to the same liabilities, as if such probate or administration had been originally granted by the Supreme Court.
The purpose of s 17 is to enable the Registrar to reseal a probate or administration granted by any court of competent jurisdiction.
Section 17 is expressed in wide terms. It operates “when any probate or administration granted by any court of competent jurisdiction” is produced to and a copy deposited with the Registrar. The use of the word “any” in the expression “any probate or administration” signifies that s 17 is expressed to operate as widely as possible. The word “any” is a word which ordinarily excludes limitation or qualification and should be given as wide a construction as possible: Victorian Chamber of Manufactures v The Commonwealth (1943) 67 CLR 335 at 346 and at 340, 344. Depending on its context, the word “any” has such a wide import that it is capable of meaning “all”: Isle of Wight Railway Co v Tahourdin (1883) 25 Ch D 320 at 332. It is, therefore, intended to apply to any kind of probate or administration in whatever form granted by a court of competent jurisdiction.
A grant of administration may be made in two forms. One is a grant of letters of administration of the effects of a deceased person, whether with or without the will annexed, and whether granted for general, special or limited purposes. The other is an administration order, that is to say, an order that the estate of a deceased person be administered by a named person. Generally speaking, in the States and Territories of the Commonwealth of Australia, an administration order is made appointing Public Trustee as the administrator. Section 9 of the Public Trustee Act 1995 invests the Court with power to make an order authorising Public Trustee to administer the estate of a deceased person. Similar provisions can be found in other States of Australia: see, for example, s 88 and s 92 of the Administration of Probate Act 1929 (ACT); s 23 of the Public Trustee Act 1913 (NSW); s 29 and s 31 of the Public Trustee Act 1978 (Qld); s 10(1) of the Public Trustee Act 1941 (WA); and s 17 and s 18 of the Public Trustee Act 1930 (Tas).
Given that the purposes of s 17 include, as a matter of comity between jurisdictions, that the grant of probate or administration is to be resealed by the Registrar of Probates in a timely manner without undue expense to the estate, the meaning of administration in s 17 includes both letters of administration and administration orders. The fact that the word “granted” is used in s 17 does not qualify the meaning of “administration” so as to exclude an administration order. While letters of administration are granted by the legislation in the ordinary exercise of the testamentary causes jurisdiction and an administration order is made by the court, the word “granted” applies both to a grant of letters of administration and to the grant by the court of an order of administration. A grant of letters of administration is a judicial act and as such an order of the court: Hewson v Shelley [1914] 2 Ch 13 at 30 per Lord Cozens-Hardy MR. An order granting letters of administration and an administration order both clothe a person with the powers and authority to administer the estate of a deceased person. It is conclusive evidence of the title of the administrator as the personal representative of the deceased. It would defeat the purpose of s 17 to hold that “administration” is limited to letters of administration to the exclusion of an administration order. If the meaning were so limited, it would be necessary to apply for a fresh grant of probate in those circumstances where an administration order had been obtained, thereby causing additional expense to the estate.
The term “administration” is defined in s 4 of the Administration and Probate Act in these terms:
administration means all letters of administration of the effects of deceased persons, whether with or without the will annexed, and whether granted for general, special, or limited purposes.
However, that definition does not operate where the subject matter or context requires a different construction. The purpose, subject matter and context of s 17 requires that “administration” has a wider meaning than that expressed in s 4.
Section 17 is in Division 5 of Part 2 of the Administration and Probate Act. Section 20 of the Act prescribes definitions which operate in Division 5 of Part 2. It provides:
In this Division –
administration includes exemplification of letters of administration, or such other formal evidence of letters of administration purporting to be under the seal of a court of competent jurisdiction as, in the opinion of the Registrar, is sufficient;
Australasian States means all the States of the Commonwealth of Australia other than the State of South Australia, and includes the Dominion of New Zealand and the colony of Fiji, and any other British colonies or possessions in Australasia now existing or hereafter to be created, which the Governor may from time to time by proclamation declare to be Australasian States within the meaning of section 17;
probate includes exemplification of probate, or any other formal document purporting to be under the seal of a court of competent jurisdiction, which, in the opinion of the Registrar, is sufficient;
United Kingdom means Great Britain and Ireland and includes the Channel Islands.
It will have been noticed that the expression “Australasian States” includes the Dominion of New Zealand. The definition of “administration” is not expressed in exclusionary terms. The terms in which s 20 is expressed do not qualify or limit the meaning of “administration” so as to exclude an order granting administration to a named person.
I have also considered s 19 of the Administration and Probate Act which provides:
(1) In section 17 –
probate or administration granted by a foreign Court means any document as to which the Registrar is satisfied that it was issued out of a court of competent jurisdiction in a foreign country other than an Australasian State, or the United Kingdom, and that in such country it corresponds to a probate of a will or to an administration in this State.
(2) In order to satisfy himself, as mentioned in subsection (1) of this section, the Registrar may accept a certificate from a consul or consular agent in this State of the foreign country, or such other evidence as appears to him sufficient.
The purpose of s 19 is to allow for the possibility that in some jurisdictions there is no direct equivalent of a grant of probate or administration. It, therefore, permits the Registrar to reseal a document issued out of a court of competent jurisdiction if the Registrar is satisfied that it corresponds to a probate of a will or an administration in this State. For these reasons, s 19 does not qualify the meaning of administration as expressed above. The Registrar has power in the particular circumstances of this case to re-seal the administration order to Public Trust.
Law Reform
In order to make assurance doubly sure, it would be desirable if the Administration and Probate Act were amended to include a provision which expressly authorises the Registrar to reseal an administration order. There is more than one simple means of doing so. One would be to add at the end of the definition of “administration” in s 20 the following “and includes an order of a court granting administration of a deceased estate to a person named in that order”.
Question 2
Rule 50 of the Probate Rules 2004 applies to the resealing of grants under s 17 of the Act. Rule 50.01 prescribes the manner in which an application for the resealing of a grant may be made by a trust corporation. It provides that the application must be made
(d)by an officer of such corporation who must depose in the oath to his or her authority to make the application and such officer must lodge with the application a certified copy of the resolution of the board of directors of such corporation authorising such officer to make the application for the re-sealing of the grant:
Provided that it shall not be necessary to lodge a certified copy of the resolution if the officer through whom the application is made is included in a list of persons authorised to make such applications filed in the Registry by the trust corporation.
The Registrar also seeks direction on the question whether the applicant has complied with the terms of Rule 50.01. The application to reseal the administration order granted by the High Court of Justice in New Zealand has been made by Public Trust through one of its officers. His authority to make the application on behalf of Public Trust is supported by a certificate proving a resolution giving that authority. The certificate is signed by another officer of Public Trust who describes herself as “Southern Service Manager of Public Trust”. The certificate is not exhibited to any affidavit. It is but a single sheet of paper. It purports to certify a true and correct extract from the resolutions of the directors of Public Trust made on 5 May 2006. The certificate does not bear any stamp or seal of Public Trust. The status of the Southern Service Centre Manager is not proved. It is desirable that Public Trust prove the resolution in a more satisfactory form. The resolution should be proved by a senior officer of Public Trust who also satisfactorily proves his seniority in the hierarchy of Public Trust and his authority to prove the resolution.
Question 3
The Registrar’s next question turns on the terms of Rule 50.06 which provides:
If the deceased was not at the date of death domiciled within the jurisdiction of the Court from which the grant issued, the seal should not be affixed except by order of the Registrar.
The deceased was not, at the time of death, domiciled within New Zealand. It is, therefore, necessary for the seal of this court to be affixed pursuant to an order of the Registrar. The Registrar asks what are the factors to which he should have regard before making an order. It is not possible to provide a general answer to that question. It would depend upon the facts and circumstances of each individual case.
The issues for consideration include whether the application to reseal the grant should be advertised and where there should be evidence as to whether searches were made in the premises of the deceased in South Australia to ascertain whether the deceased made a later will than the will which has been proved in the other jurisdiction. In the particular circumstances of this case, where there are only two children of the deceased and both are the sole beneficiaries named in the will, it is sufficient if there is an advertisement of the application to reseal the grant published in The Advertiser newspaper. The advertisement should be in the form of Form 65 of the Probate Rules and should be proved by affidavit. Once the advertisement has been proved, the Registrar will be at liberty to make an order pursuant to Rule 50.06.