The Estate of Gustav Ernst Paul Rauch
[2013] NTSC 34
•15 July 2013
The Estate of Gustav Ernst Paul Rauch [2013] NTSC 34
PARTIES:THE ESTATE of GUSTAV ERNST PAUL RAUCH
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING PROBATE JURISDICTION
FILE NO:62 of 2013 (21314168)
DELIVERED: 15 July 2013
HEARING DATES: 8 May and 7 June 2013
JUDGMENT OF: HILEY J
CATCHWORDS:
SUCCESSION – Administration - Administration and Probate Act NT s 22(2), s 33 – Reference by Registrar - jurisdiction - executors formally renounced probate – application for grant of administration with will annexed to a solicitor – “necessary or convenient” - appropriate grantee of letters of administration - Court satisfied that no surviving spouse or de facto exists – Court satisfied that some surviving next of kin consent to the grant – Court satisfied that other next of kin have been duly notified and given opportunity to seek or oppose administration - administration granted.
Administration and Probate Act (NT) s 17(2), s 22(2), s 33.
Bath v British and Malayan Trustees Ltd [1969] 2 NSWLR 114; In Re Swale [1940] SASR 391; In the Estate of O'Loughlin (Deceased) [2013] SASC 20; In the Estate of Shephard, deceased [1982] 29 SASR 247; In the Goods of Loveday [1900] P 154, applied.
REPRESENTATION:
Counsel:
Applicant:P Cheong
Solicitors:
Applicant:Hunt & Hunt
Judgment category classification: A
Judgment ID Number: Hil1305
Number of pages: 12
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Estate of Gustav Ernst Paul Rauch [2013] NTSC 34
No 62 of 2013 (21314168)
THE ESTATE of GUSTAV ERNST PAUL RAUCH
CORAM: HILEY J
REASONS FOR JUDGMENT
(Delivered 15 July 2013)
By Application filed on the 5th April 2013 (“the Application”) Sulifa Lesieli Tonga (“the Applicant”) applied for the grant of administration with the will annexed in relation to the Estate of Gustav Ernst Paul Rauch (“the deceased”).
The deceased died at his home in Freshwater Road, Jingili sometime between 16 and 23 November 2012. He made a will on 30 January 1998 (“the Will”). By his will the deceased appointed Felix Schuster and Dianne Schuster to be his Trustees (which term was defined to include “all rights to act as my Executor or Executrix which ever the case may be”) and gave all of his property to such of his children of his marriage to Linda Rauch as survived him and attained the age of 18 years. The Will was witnessed by a solicitor and a legal secretary at Hunt & Hunt Lawyers, 13 Cavenagh Street, Darwin.
The evidence is that the deceased had 5 children at the date of his death. They are Angela Marie Sophios (born 7 September 1962), Marisa Horan (born 9 December 1969), Tracey Rauch (born 19 June 1979), Leigh Rauch (born 10 October 1981) and Arvin Rauch (born 4 February 1983).
A grant of administration with the will annexed is sought because the executors have both renounced probate. The Applicant is a solicitor employed by Hunt & Hunt Lawyers.
The Application was brought pursuant to r 88.07 of the Supreme Court Rules and invokes the Court’s jurisdiction conferred by s 14 of the Administration and Probate Act (“the Act”).
The Application was supported by a number of documents of the kind referred to in r 88.25. These included:
(a)an Affidavit of Death attaching a Certified Copy of Details in Death Certificate (cf rr 88.24(1)(a) & 88.24(10) – Form 88G);
(b)an Affidavit of Applicant for Administration with the Will Annexed (cf rr 88.24(1)(b), 88.25(1)(a) & (b), and 88.25(2) - Form 88Q);
(c)an Affidavit of Publication and Search (cf rr 88.24(1)(c) & 88.25(1)(a) – Form 88I);
(d)Renunciation of Probate forms signed by each of Felix Schuster and Dianne Schuster (cf rr 88.23(2), (3) & 88.25(3));
(e)an Affidavit of Assets and Liabilities (cf r 88.27 – Form 88T);
(f)Consents to Administration signed by two of the children of the deceased, Leigh Rauch and Arvin Rauch, each verified by an Affidavit of Witness to Consent (cf r 88.24(2)(a) – Forms 88L and 88M); and
(g)Oath of Office sworn by the Applicant (cf r 88.24(8) – Form 88J).
Jurisdiction
Section 14(1) of the Act provides that “the Court shall have jurisdiction to grant probate of the will or administration of the estate of any deceased person leaving property, whether real or personal, within the Territory.”
Section 17(1) of the Act confers upon the Registrar the power to make a grant of probate or administration in the name and under the seal of the Court. However s 17(2) provides that the Registrar “shall not, without an order of the Court, issue probate of a will, or administration of the estate, of a deceased person” where certain circumstances pertain. One of those circumstances is “any case in which it appears to the Registrar to be doubtful whether the probate or administration should be granted” – s 17(2)(c).
Section 22 of the Act is entitled “to whom administration may be granted”. It provides as follows:
22 To whom administration may be granted
(1)Subject to this section, the Court may grant administration of the estate of an intestate person to:
(a)the spouse or de facto partner of the deceased person;
(b)one or more of the next of kin;
(c)the spouse or de facto partner conjointly with one or more of the next of kin; or
(d)such person, whether a creditor or not of the deceased person, as the Court thinks fit.
(2)The Court shall not grant administration to a person who is not the spouse or de facto partner or one of the next of kin of the deceased unless:
(a)there is no such spouse or de facto partner or next of kin;
(b)there is no such spouse or de facto partner or next of kin within the jurisdiction who is, in the opinion of the Court, fit to be trusted; or
(c)there is no such spouse or de facto partner or next of kin who, when duly cited, appears and prays for administration.
(2A)References in subsections (1) and (2) to a spouse or de facto partner of a deceased person are references only to a spouse or de facto partner who is entitled to an interest in the deceased person's intestate estate.
(3)The Court shall not grant administration to an infant.
Section 33 of the Act is entitled “power as to appointment of administrator”. It provides as follows:
33 Power as to appointment of administrator
The Court may, in any case where a person dies:
(a)intestate;
(b)leaving a will, but without having appointed an executor thereof; or
(c)leaving a will and having appointed an executor thereof, who:
(i)is not willing and competent to take probate; or
(ii)is resident out of the Territory,
if it thinks it necessary or convenient, appoint some person to be the administrator of the estate of the deceased person or of any part of the estate, upon his or her giving such security (if any) as the Court directs, and every such administration may be limited as the Court thinks fit.
Whilst s 22(1) expressly confers power upon the Court to grant administration of the estate of an intestate person, no such power is conferred in that section in relation to other estates, such as in the present case, where the deceased left a will. Such a power, albeit limited, appears in s 33 of the Act.
I note in passing that ss 22(1) and 33(a) confer powers, in different terms, in relation to intestate estates.
Section 22(2) and (3) prohibit the grant of administration to certain people, in particular to persons who are not the spouse or de facto partner, or one of the next of kin of the deceased, unless certain circumstances exist.
Because the Application in the present matter seeks the appointment as administrator of a person who is not the spouse or de facto partner, or one of the next of kin of the deceased, but rather, of a solicitor, the Registrar formed a doubt as to whether the probate or administration should be granted. Accordingly, the Registrar took the precaution of referring the matter to the Court.
I consider that in the circumstances of this matter, namely where those who were named as “Trustees” and were also directed to perform the functions of executors are not willing to take probate, s 33 confers jurisdiction to appoint a person such as the Applicant as administrator of the Estate, “if it thinks it necessary or convenient”.
Necessary or convenient
The “necessary or convenient” element in s 33 of the Act, in circumstances where there is no executor willing and able to administer an estate, has been a feature of probate legislation going back as far as the Testamentary Causes Act 1867 (SA). These provisions were discussed in detail by Legoe J in In the Estate of Shephard, deceased[1].
The wide discretion so conferred reflects the fact that “the real object which the Court must always keep in view is the due and proper administration of the estate and the interests of the parties beneficially entitled thereto.”[2]
In relation to s 67 of the Testamentary Causes Act 1867 (SA) Napier J spoke of the power to grant administration to a “stranger” “in special circumstances for the preservation of the estate”.[3]
In circumstances where, as here, the Estate includes substantial assets which are available to pay debts and to be distributed to beneficiaries named in the Will, I consider that it is necessary for an administrator to be appointed. The necessity for such an appointment also exists because of ss 28 and 29 of the Act (which set out some of the consequences of an executor renouncing probate).
I also consider it convenient to make such an appointment in the circumstances, as here, where there does appear to be at least one person who appears suitable and willing to accept the appointment.
Appropriate grantee of letters of administration
Unlike in most other jurisdictions in Australia, the Northern Territory legislation does not prescribe a descending order of priority of persons to whom letters of administration may be granted.
However, s 22(2) of the Act requires the grant to be made to a spouse, de facto partner or next of kin, unless certain circumstances exist.
Where such circumstances do exist, s 33 enables the Court to appoint some other person to be the administrator of the estate.
At common law there is a general rule that the right to administration “follows interest”, that is, the person who has the greatest interest as a beneficiary in the estate is normally entitled to the grant.[4]
In circumstances where none of the beneficiaries wish to apply for a grant, the Court’s discretion is wide enough for it to appoint another person as administrator.[5] And, as already noted, the discretion should be exercised with the aim of facilitating the due and proper administration of the estate.
Application to this matter
At the initial hearing of this matter on 8 May 2013 it became apparent that the Court could not be satisfied of the circumstances set out in s 22(2) of the Act. In particular, there was no evidence as to whether or not the deceased did or does have a spouse or de facto partner, noting that at the time when he made his will he was apparently married to Linda Rauch.
Also, although the evidence demonstrated that two of the deceased's children, Arvin Rauch and Leigh Rauch, consent to letters of administration with the will annexed being granted to the Applicant and to an administration bond being dispensed with, no consents had been provided by any of the other 3 children.
There was evidence of some contact having been made with the two oldest children of the deceased, Angela Marie Sophios and Marisa Horan. However, there was no evidence concerning Tracy Rauch and in particular whether she was aware of the application and consents to it.
As I could not be satisfied that the exceptions in s 22(2) applied I adjourned the matter in order that the solicitors for the Applicant could make those further enquiries, and ensure that any such spouse, de facto partner or next of kin were duly notified and given the opportunity to appear and seek or oppose administration (cf s 22(2)(c)).
I also requested the solicitors to obtain another Renunciation of Probate document from Dianne Schuster as the one which had been filed was wrongly dated. This has now been provided.
I also requested evidence as to whether or not there had been any response to the publication of the Notice of Intended Application for Administration that had been published in the Northern Territory News on 6 February 2013.
The Applicant has now filed an affidavit of Arvin Rauch, dated 6 June 2013, in which he deposes that his father and Linda Rauch divorced in about 2000 and that as far as he is aware his father had no spouse or de facto at the time of his death.
The Applicant has also sworn and filed another three affidavits.
In her affidavit of 4 June 2103 the Applicant says that no response was ever received to the Notice of Intended Application for Administration that had been published in the Northern Territory News on 6 February 2013.
In her affidavit of 7 June 2013, the Applicant describes a number of communications with Marisa Horan and Angela Sophios and attempts to contact Tracey Rauch.
The Applicant says that she spoke to Marisa Horan and Angela Sophios on the telephone on 10 May 2013, and that each agreed to sign consent forms. By letter dated 13 May 2013 the Applicant sent each of them a Consent to Administration form (Form 88L) and an Affidavit of Witness to Consent form (Form 88M) (“consent forms”). On 23 May 2013 Marisa Horan advised the Applicant that she and her sister Angela had sought legal advice about the consent forms. However no further response has been received from either of those sisters or any legal representative on their behalf.
The Applicant also deposes to various attempts that she has made to contact Tracey Rauch. On 22 April 2013 the Applicant sent her consent forms with an email asking her to complete and return them. As no response was received, the Applicant sent further emails on 29 April, 9 May, 21 May and 3 June. On about 9 May Tracey’s brother Arvin Rauch advised the Applicant that Tracey was on holiday in Italy and would be uncontactable until she returned home to England the following week. On 21 May 2013 Arvin Rauch advised the Applicant by email that he had been in contact with Tracey and that she intended to sign and return the consent forms the next day. The Applicant did not get any response from Tracey.
The matter was mentioned in Court again on 7 June 2013 and further adjourned to allow some more time for responses to be received.
In her affidavit of 2 July 2013 the Applicant says that she tried to contact the three children again by email sent on 17 June 2013, but that she has not received any responses.
It is now over 7 months since the deceased passed away, over 5 months since the publication of the Notice of Intended Application for Administration, over 2 months since the Applicant was advised by Marisa Horan and Angela Sophios that they would consent to the grant and almost 2 months since Arvin Rauch advised the Applicant that Tracey Rauch was going to consent.
In the circumstances I consider that all of the next of kin have been duly notified of the Application and have been given sufficient opportunity to advise the Court if they wish to seek administration themselves or oppose the Application. The only indications received are to the effect that they all consent.
Security
Section 33 contemplates that a person appointed as an administrator may be required to give security. Whilst this may well be appropriate and desirable in some cases, where the administrator is a solicitor and thus an officer of the Court this should rarely be necessary.
In the present matter, the two next of kin who have provided their consent to the Applicant being granted the letters of administration, Arvin Rauch and Leigh Rauch, have also consented to an administration bond being dispensed with. Moreover, it is relevant to note that the Applicant is an employee of Hunt & Hunt Lawyers and that it was employees of that firm who witnessed the Will.
Conclusions and orders
I am satisfied that there was and is no spouse or de facto partner of the deceased. I am also satisfied that each of the next of kin have been duly cited, and that none of them have appeared and prayed for administration. In the circumstances, I consider it necessary and convenient to appoint the Applicant to be administrator of the estate of the deceased Gustav Ernst Paul Rauch, without any security being provided.
Consequently, I make an order for the grant of the administration with the will annexed, appointing the Applicant as administrator, and I direct the Registrar to issue such letters of administration in the name and under the seal of the Court.
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[1] In the Estate of Shephard, deceased [1982] 29 SASR 247 at 252-6.
[2] See In the Goods of Loveday [1900] P 154 at 156, Jeune P adopted and applied in Bath v British and Malayan Trustees Ltd [1969] 2 NSWLR 114 at 118, Helsham J.
[3] In Re Swale [1940] SASR 391 at 394-5.
[4] See for example Bourdales v Carroll (2007) 1 ASTLR 202 at [4] – [5] and other cases noted in In the Estate of O'Loughlin (Deceased) [2013] SASC 20 at [18] – [21].
[5] Bath v British and Malayan Trustees Ltd [1969] 2 NSWLR 114 at 118. See too In the Estate of O'Loughlin (Deceased) [2013] SASC 20 at [18] and Re Curran [2010] VSC 455 at [21].
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