Smith v Johnson

[2008] NSWSC 923

CITATION:	Smith v Johnson [2008] NSWSC 923
HEARING DATE(S):	01/09/08
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Young CJ in Eq
EX TEMPORE JUDGMENT DATE:	1 September 2008
DECISION:	Recommend to the Registrar that in due course he grant administration to the applicant with an administration bond.
CATCHWORDS:	SUCCESSION [74]- Administration- Testator died intestate- Contest between children as to who should obtain grant- Guidelines considered.
PARTIES:	Karen Elisabeth Smith (Applicant) Andrew Robert Stuart Johnson (Respondent)
FILE NUMBER(S):	SC 121200/07
COUNSEL:	L Ellison SC (Applicant) Respondent in Person
SOLICITORS:	Forbes-Smith & Company (Applicant) Respondent in Person

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

YOUNG CJ in EQ

Monday 1 September 2008

121200/07 – SMITH v JOHNSON

JUDGMENT

1 HIS HONOUR: The motion before the court is a motion by Karen Smith, an applicant for letters of administration of the estate of Andrew Arnold Johnson that a caveat cease to have effect.

2 As far as the current evidence before the court shows, Andrew Arnold Johnson died intestate. On 12 March 2008 the respondent filed a caveat demanding that no grant be made without notice to him. He said his interest was as the youngest son and co-dependant of the deceased. The second is of course irrelevant, but the first shows that in all the circumstances he is a person entitled prima facie to one-third of the estate after satisfaction of any widow’s entitlement. The respondent appeared in person.

3 Mr Ellison of senior counsel for the applicant has put to the court that the caveat is altogether bad, but I must confess, though it does not really matter one way or the other, that I cannot really see what other type of caveat that a person entitled on intestacy can file to make sure that if his sister applies for letters of administration he will be heard. It is of little value as the caveat would normally expire in the next eleven days and really the vital question is whether the court should make a grant of letters of administration.

4 The deceased left a widow and three children. The widow is under the care of the Protective Commissioner and the applicant, her daughter, is her financial manager. That lastmentioned fact, however, does not give the applicant as such any superior right to the grant. The court has a discretion as to whom to grant letters of administration, however, rules have been worked out over the last 150 years or so and they are stated at pp 505 and 506 of Geddes, Rowland and Studdert, Wills, Probate and Administration Law in New South Wales (LBC, 1996) and are supported by the authorities.

5 Normally the grant follows interest. The widow has the greatest interest. She, however, does not seek a grant and that is understandable in view of the fact that she is being protected by the Protective Commissioner. The whole estate would seem to pass to the widow because it is only $64,000 and that the three children would only come into benefit if the widow had not survived or the estate had been much bigger than that. Accordingly, as the person who is administering the widow's estate at the moment, the applicant is the person who would score perhaps one point when one was looking to see how a grant should be made.

6 If one looks at the other matters that are referred to in the leading text, the applicant also scores a point because she has the consent of her brother Douglas in obtaining the grant. Thirdly, the applicant gets another point because she is the one who applied first for the grant. Fourthly, she obtains a point because she is the oldest of the three siblings.

7 Neither the applicant nor the respondent appear to be people accustomed to business. The applicant is a teacher though she has practised as a solicitor. The respondent is currently unemployed, but he has run his own business at some time. That seems to even out. Accordingly, the point score would indicate that there should be a grant in favour of the applicant.

8 However, there is more litigation between the applicant and the respondent at the moment in the Equity Division and it is clear from the applicant's affidavit that she has an attitude towards the respondent which is not going to be helpful in the administration of any estate. In her affidavit of 27 August 2008 she makes statements such as: “The defendant's affidavit is full of incorrect facts and distortions”, she says that other allegations are fabrications and it can be seen from the respondent’s affidavit that he also considers his sister to be a manipulative person who is not to be trusted. As such, the relationship between the parties is appalling.

9 The respondent says that the Public Trustee should be given the grant. The Public Trustee under the Public Trustee Act 1913 is to be considered as an equal claimant. The Public Trustee has never made any formal application for a grant, though the respondent says that Mr Gaal of the Chatswood office has indicated willingness and quoted a fee of $3,000. The respondent has already spent $4,000 on retaining a solicitor so that the $3,000 is of little moment.

10 The question really is whether the negative factors which I have mentioned outweigh the point score in favour of the applicant. The consent of the brother Douglas was to dispense with the administration bond. The Registrar has not made any requisition as to this, but it does not seem to me that in a case where there is bad blood between the siblings that it is appropriate to dispense with the administration bond. There will be a premium for this, of course, but with a $64,000 estate it could not be very great.

11 Were it not for the fact that the widow will probably receive the whole of the estate and that the applicant is her financial manager under the control of the Guardianship Board, I would have given the administration to the Public Trustee. However, it seems to me that those factors mean that I should recommend to the Registrar that in due course he grant administration to the applicant with an administration bond.

12 Mr Johnson tells me that there is a review as to who should be the guardian of the widow. Mr Ellison tells me that it may be that the Protective Commissioner will consent to the dispensation of the bond. I will leave those matters up to the Registrar's discretion when he is considering what grant to make. The caveat can simply expire in eleven days’ time.

13 As to costs, the administratrix will be entitled to her reasonable costs of obtaining a grant including her costs of this application out of the estate.

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