TADEUSZ JAN ROGOWSKI DECEASED; IN THE ESTATE OF GENOWEFA BIESIADA - [2007] SASC 161

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Case Stated)
In the Estate of TADEUSZ JAN ROGOWSKI DECEASED; IN THE ESTATE OF GENOWEFA BIESIADA
[2007] SASC 161
Judgment of The Honourable Justice Gray
24 April 2007
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION
Registrar of Probates has requested directions pursuant to section 8 of the Administration and Probate Act 1919 (SA) - whether the Court should re-seal a grant of administration of a deceased estate made by the Supreme Court of New South Wales to the attorney of the persons entitled to administer the estate or whether an original grant of administration of the assets situated in this State should be sought in this jurisdiction - Held: application to re-seal the New South Wales grant rejected - applicant should seek an original grant in South Australia.
Administration and Probate Act 1919 (SA) s 4, s 5, s 8, s 17, s 18, s 21, s 31(1) and s 31(10); Supreme Court Act 1935 (UK) s 18; Court of Probate Act 1857 (UK); Testamentary Causes Act 1867 (SA) s 6, s 14; The Constitution (Cth) s 118; The Probate Rules 2004 (SA) r 19, r 24, r 31(iv), r 49.08, r 50.03 and r 50.08; Power of Attorney Act 2003 (NSW) s 8, s 10; Powers of Attorney and Agency Act 1984 (SA) s 5(4), referred to.
In re Kuhl; Kuhl & Anor v Leibcheschel [1933] SASR 394; Re Aylmore [1971] VR 375; In re Carlton deceased [1924] VLR 237; Pedersen v Young (1964) 110 CLR 162 ; Permanent Trustee Co. v Finlayson (1968) 122 CLR 338; Lewis v Balshaw (1935) 54 CLR 188; Re Dewell; Edgar v Reynolds (1858) 62 ER 104; In the Estate of Pantulej Slavinskyj (1988) 53 SASR 221, considered.

In the Estate of TADEUSZ JAN ROGOWSKI DECEASED; IN THE ESTATE OF GENOWEFA BIESIADA
[2007] SASC 161
Testamentary Causes Jurisdiction
GRAY J:

The Registrar of Probates has requested directions pursuant to section 8 of the Administration and Probate Act 1919 (SA).[1]
[1] 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 issue for consideration is whether this Court should re-seal a grant of administration of a deceased estate made by the Supreme Court of New South Wales to the attorney of the persons entitled to administer the estate or whether an original grant of administration of the estate situated in this State should be sought in this jurisdiction.[2]
[2] This direction is given in circumstances where submissions from relevant parties have not been received. If any affected persons wish to make submissions I reserve the right to further consider these directions.
Background
Genowefa Biesiada (“Genowefa”) died at Moree on 16 April 2002 aged 78 years. At the date of her death she was domiciled in New South Wales. She died possessed of assets comprising real estate in South Australia, land at Andamooka valued at $7,000.00 and real and personal estate in NSW valued at $129,300.00 and $7,700.00 respectively. She left a will dated 27 May 1998 in which she appointed her brother Tadeusz Jan Rogowski (Tadeusz) her sole executor and named him universal devisee and legatee. Tadeusz survived her but died on 12 June 2003 without having taken probate of her will.
Tadeusz died at Lightning Ridge, in the State of South Australia on 12 June 2003 aged 68 years. At date of death he was domiciled in New South Wales. He left real estate in South Australia - land at Andamooka and Port Augusta West. The total value of that land has been disclosed at $371,000.00. The deceased also left assets in New South Wales comprising real estate valued at $22,700.00 and personal estate valued at $108,923.94.
Tadeusz left a will imperfectly dated “this day of April One Thousand Nine Hundred and Eighty Six”. In brief, the will revoked all former wills, appointed Peter Pankiewicz sole executor, directed payment of his debts and funeral and testamentary expenses and gave his residuary estate to his wife Zofia Rogowski and his son Tadeusz Jan Rogowski (in the will called Tadeusz Rogowski) as tenants in common, with the proviso that in the event of either beneficiary predeceasing the testator or failing to survive him by 30 days the survivor received the other’s share. Both beneficiaries survived the testator by 30 days. Both reside in Poland.
On 23 November 2005, the New South Wales Court granted letters of administration with the will annexed of Tadeusz’s estate to Andrew Nicholas Sochacki (“the applicant”) as the lawful attorney of Zofia Rogowski and Tadeusz Jan Rogowski, the beneficiaries named in the will.[3] On the same day the New South Wales Court granted letters of administration with the will annexed of Genowefa’s estate to the applicant “the legal personal representatives [sic] of Tadeusz Rogowski the executor and beneficiary named in the will”.
[3] Peter Pankiewicz, the sole executor named in the will named had renounced probate.
The applications for re-seal
In order to deal with the South Australian assets in Tadeusz’s estate, it is necessary for the New South Wales grant to be re-sealed by this Court.
In order to deal with the assets in Genowefa’s estate under the New South Wales grant, it is also necessary for the grant in Tadeusz’s estate to be re-sealed as the application has to be made by Tadeusz’s legal personal representative. The applicant will only have this status after the New South Wales grant has been re-sealed in South Australia.
Applications have been lodged in the Probate Registry to have both grants re-sealed. It should be noted that as an alternative to re-sealing the New South Wales grants, original grants in the above estates could be sought from this Court.
The direction of this Court has been sought as to whether the grant of letters of administration with the will annexed in the estate of Tadeusz should be re-sealed or alternatively, whether the applicant should be directed to apply for a fresh grant in this jurisdiction.
The application to re-seal the grant in Genowefa’s estate is contingent on the New South Wales grant in Tadeusz’s estate being re-sealed in South Australia.
The jurisdiction to make a grant or to re-seal a grant
Section 18 of the Supreme Court Act 1935 (SA) vests in the Court all the powers, jurisdiction and authority in testamentary causes or matters which were formally vested in the Court of Probate in England under the Court of Probate Act 1857. Sections 5 and 21 of the Administration and Probate Act preserve the testamentary causes jurisdiction and practice successively vested in this Court by the Testamentary Causes Act 1867.[4] The jurisdiction to make a grant of probate or administration in South Australia is limited to cases where the deceased left real or personal property within the jurisdiction.[5]
[4] Testamentary Causes Act 1867 section 6 and 14.. The history of the jurisdiction is noted by Napier J in In re Kuhl; Kuhl & Anor v Leibcheschel [1933] SASR 394.
[5] Administration and Probate Act 1919 (SA) section 5.
The property requirement appears steadfast even in the case of an ad litem grant.[6] Any property is sufficient and the fact that the will does not dispose of it is not a ground for refusing the grant.[7] These requirements apply to the re-sealing of a grant. When a grant is re-sealed it has the same force, effect and operation as if it had been originally granted by the re-sealing court.
[6] Re Aylmore [1971] VR 375.
[7] In re Carlton deceased [1924] VLR 237.
Re-sealing is necessary among Australian States and the Australian Capital Territory. They are treated as separate countries in private international law and “are to be so regarded in relation to one another”.[8] Furthermore section 118 of the Constitution dealing with the giving of full faith and credit throughout Australia to the laws, public Acts, records, and judicial proceedings of every State does not allow a grant of probate or administration made in one jurisdiction to be effective in another.[9]
[8] Pedersen v Young (1964) 110 CLR 162 per Windeyer J at 170.
[9] Permanent Trustee Co. v Finlayson (1968) 122 CLR 338.
Under principles of private international law relating to the succession of property, moveables are governed by the law of the deceased’s last domicile - lex domicilii - and immovables by the law of the place where they are situated - lex situs. In Lewis v Balshaw,[10] the High Court held that neither convenience nor comity overcame these principles.
[10] Lewis v Balshaw (1935) 54 CLR 188.
In South Australia any probate or administration granted by a court of competent jurisdiction in any of the Australian States or in the United Kingdom or “a probate or administration granted by a foreign court” may be re-sealed.[11] “Administration” includes letters of administration with the will annexed and letters of administration granted for general, special or limited purposes.[12]
[11] Administration and Probate Act 1919.(SA) section 17.
[12] Administration and Probate Act 1919 (SA) section 4.
Special, limited or temporary grants may not be re-sealed without an order of the Registrar.[13] Notice of the application to re-seal need not be advertised unless the Registrar requires it.[14]
[13] The Probate Rules 2004 (SA), rule 50.08.
[14] The Probate Rules 2004 (SA), rule 50.03 and see Form 65.
The application to re-seal the NSW grant in Tadeusz’s estate
The grant of letters of administration with the will annexed made by the New South Wales Court to the applicant as attorney for the persons entitled to be granted representation in their own right is properly categorised as a limited grant.[15] The wording in the grant makes reference to the limitation:
This grant is for their use and benefit limited until one or both of them shall apply for and obtain a grant.
Such grants are in most cases made where the person or persons entitled to representation are out of the jurisdiction. The New South Wales grant is in the usual form. It is made to the attorney for the use and benefit of the person entitled until they either or both should seek representation. Accordingly, the appointment does not automatically lapse upon their return to the jurisdiction.[16]
[15] Rowe, R.B., Heward, E., et al, Tristram & Coote’s Probate Practice (1983, 26^th ed) p. 333.
[16] Rowe, R.B., Heward, E., et al, Tristram & Coote’s Probate Practice (1983, 26^th ed) p.343-345.
The grant is required to administer immoveable property within South Australia. As it is a grant of administration per se a surety guarantee is required.[17] The applicant is seeking a dispensation from providing a surety guarantee on the ground that he is unable to find a surety who will guarantee the administration of the estate.
[17] Administration and Probate Act 1919 (SA) section 18.
There are features of the New South Wales grant that call for close consideration - Tadeusz Jan Rogowski and Zofia Rogowski both executed separate powers of attorney in which they appointed Andrew Nicholas Sochacki of Mullumbimby in New South Wales their attorney. Both powers of attorney are general powers. They do not specifically empower the donor to take a grant. Both powers of attorney are in the form set out in Schedule 2 of the Powers of Attorney Act 2003 (NSW). Section 8 of the Powers of Attorney Act provides:
An instrument (whether or not under seal) that is in or to the effect of the form set out in Schedule 2 (the ‘prescribed form’) and is duly executed creates a ‘prescribed power of attorney’ for the purposes of this Act.
The form in Schedule 2 does not set out what the donee of the power can or cannot do, it merely states that the attorney may exercise the authority conferred by Part 2 of the Act to do on the donor’s behalf, anything that the donor may lawfully authorise an attorney to do. Section 10 of that Act provides:
A prescribed power of attorney does not confer authority to exercise any function as a trustee that is conferred or imposed on the principal.
This section may raise an impediment to a prescribed power of attorney conferring authority on the attorney to apply for a grant.
The duty of an executor or administrator is to collect, protect and administer the estate according to established principles, to pay the creditors, and in due course to distribute the balance of the estate to beneficiaries or to trustees. While the estate is being administered the legal and beneficial rights of the estate assets vest in the personal representative. A personal representative on completion of the duties of administration - apart from finally transferring the assets to those beneficially entitled to them - holds the assets concerned as constructive trustee for the beneficiaries and depending on the terms of the will the equitable interests in the assets themselves vest in the beneficiaries. When this occurs the office of the personal representative is said to be functus officio. The fact that a personal representative becomes as trustee does not mean that he or she ceases for all purposes and permanently to be a personal representative. If new assets are found, the personal representative will have to deal with them and when the time comes to distribute those assets, he or she does so as personal representative and not as trustee.[18]
[18] Geddes, R., Rowland C., and Studdert Wills, Probate and Administration Law in New South Wales (1996) p.401-402.
It makes no difference, as in the present case, that the administrator is acting under a power of attorney. Kinderseley VC in Re Dewell; Edgar v Reynolds[19] observed:[20]
[T]he person to whom administration is granted, on the nomination of the party entitled to it, is full administrator, exactly as if he had obtained administration in his own right, as regards the claim of other persons…
When the administrator is once constituted, he is liable to all claims by persons who are entitled to claim against the estate.
[19] Re Dewell; Edgar v Reynolds (1858) 62 ER 104.
[20] Re Dewell; Edgar v Reynolds (1858) 62 ER 104 at 105.
Section 10 of the Powers of Attorney Act is arguably an impediment to a prescribed power of attorney conferring authority on the attorney to obtain representation. In New South Wales it appears that a general power is accepted by the New South Wales Court if the attorney is empowered to prosecute proceedings for and to represent the principal in court.[21]
[21] Geddes, R., Rowland C., and Studdert Wills, Probate and Administration Law in New South Wales (1996) p. 483.
In South Australia such a question would not arise as under the Powers of Attorney and Agency Act 1884 (SA) section 5(4) expressly provides:
A general power of attorney does not operate to confer authority to perform functions that the donor has as a trustee or personal representative.
In the South Australian jurisdiction the power of attorney must expressly authorise the attorney to take a grant. With respect to the form that such a power of attorney should take, Legoe J in the Estate of Pantulej Slavinskyj deceased observed:[22]
It has been the practice of this Court to accept the form of power of attorney precedent in Tristram and Coote … “Powers of attorney to take administration (will) (residuary legatee).
[22] Estate of Pantulej Slavinskyj deceased (1988) 53 SASR 221 at 223.
In the power of attorney executed by Tadeusz Jan Rogowski, his name was initially incorrectly given as “Tadeusz Rogowski”. It is apparent from the document that his name was amended at the time of execution as his second Christian name “Jan” was inserted in ink wherever it appeared. The initials of the Notary Public who witnessed Tadeusz’s signature have authenticated the amendment. This appears to have been overlooked by the New South Wales Court when it issued the grant.
In the past, Judges have required an interstate or foreign grant containing an omission or error to be amended by the issuing court prior to it being re-sealed. In Estate of Mary Vescina Joycelyn Thompson deceased,[23] a grant made in New Zealand showed the late address and place of death as “Adelaide” which was incorrect as the late address and place of death in both cases was “Walkerville”. Williams J expressed the view that: [24]
There is a public interest that court records be correct. Upon re-sealing the New Zealand exemplification becomes a South Australian grant. In my view the grant should not be resealed without amendment to the late address and place of death to show both as “12 Burlington Street Walkerville in the State of South Australia”.
[23] See Probate file no. C17676.
[24] See Probate file no. C17676
As earlier observed, this Court’s direction has been sought as to whether the grant of letters of administration with the will annexed, of the estate of Tadeusz Rogowski deceased, should be re-sealed (subject to the error being amended) or alternatively, should the applicant be directed to apply for a fresh grant in this jurisdiction.
As there is only immovable property situated in South Australia, the lex situs rule applies and the Court may go behind the grant.[25]
[25] Lewis v Balshaw (1935) 54 CLR 188.
The prescribed powers of attorney under the Powers of Attorney Act (NSW) are general powers of attorney and do not confer authority on the attorney to perform the functions of a trustee or personal representative in South Australia.[26]
[26] Powers of Attorney and Agency Act 1984 (SA) section 5(4). That section provides: “A general power of attorney does not operate to confer authority to perform functions that the donor has as a trustee or personal representative.”
Further, there is an error in the New South Wales grant and in accordance with the practice of this Court, an amended grant would in any event need to be obtained from the New South Wales Supreme Court.
In the above circumstances, the application to re-seal the New South Wales grant should be rejected.
Conclusion
The applicant should seek an original grant in South Australia. If such an application were to be made the following matters would need to be addressed:
-The application could be made by the sole executor named in the will for a grant of probate. His renunciation of probate filed in the New South Wales Court has no effect in this jurisdiction.
-If the executor renounces probate in this jurisdiction then the application for letters of administration with the will annexed could be made by either Zofia or Tadeusz Jan Rogowski or by both of them in their capacity as one of (or the) residuary devisees and legatees named in the will.[27]
[27] The Probate Rules 2004 (SA) rule 31(iv).
-Alternatively, Zofia and Tadeusz Jan Rogowski could appoint an attorney to act for them but the attorney must be resident within the jurisdiction. The powers of attorney would need to be in the form to be found in Tristram & Coote’s Probate Practice.[28]
[28] In the Estate of Pantulej Slavinskyj (1988) 53 SASR 221.
-The will is imperfectly dated “this day of April One Thousand Nine Hundred and Eighty Six”. Affidavit evidence of the date of execution and mode of execution would be required.[29] The date of execution would be published in the grant. If the date were unknown then the imperfect date would be recited in the grant followed by the words “there being no other evidence as to the actual date of execution thereof”.
[29] The Probate Rules 2004 (SA) rules 19 and 24.
-A surety guarantee would be required.[30] However the Court or the Registrar may, if satisfied that it is beneficial or expedient to do so, dispense with the requirement to provide a surety.
[30] Administration and Probate Act 1919 (SA) section 31(1).