heirs & successes

An informal will is a document that expresses the testamentary intentions of its maker but does not meet the requirements of s6 of the Succession Act 2006 (NSW). 

An application may be made under s 8 of the Act for the document to form the will of the deceased. Section 8 of the Act is in two parts, both of which must be established to provide that the document forms the deceased’s will. 

Section 3, of the Act, provides that the definition of “document” has the same meaning that it is given by s 21 of the Interpretation Act 1987 (NSW) as any record of information, and includes—

• (a)anything on which there is writing, or

• (b)anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or
• (c)anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or
• (d)a map, plan, drawing or photograph. 

The burden of proof is on the party seeking to rely upon s 8 and is to be satisfied on the balance of probabilities. The Court is required to take into account the nature of the action; the size of the estate; and the terms of the document sought to be propounded: s 140 Evidence Act 1995 (NSW).

Background

The deceased completed an online will questionnaire that required the completion of seven fields. To use the platform, a customer must create an account on the company’s website, and answer various questions about how they wish to leave their estate. The customer is then asked for payment; the responses to the questions are then reviewed by the company.

The review is conducted to ensure that the customer has used the platform correctly; if they haven’t the customer is notified and allowed to edit the information or seek legal advice. Once the review occurs, the Will can be downloaded with explanatory material, including information about how to execute a Will.  

The deceased completed the documents fields on 14 June 2021 – the Queen’s Birthday public holiday in NSW. As the questionnaire was completed on a public holiday, the document was not able to be reviewed until at least the next business day.

After completing the questionnaire, the deceased sent an email to the solicitor who had been acting for her since February 2020 concerning a possible compensation claim, stating that she had drawn up and completed a will. An unsent text message was found on her mobile phone that she did not have time to sign the will but hoped it would stick. 

The deceased died by her own hand in the late afternoon, or early evening, of 14 June 2021, leaving property in New South Wales.

The proceedings

An application was made under s 8 of the Act for the online will to form the deceased’s will (Application by Maggie Riman (Estate of Rita Riman) [2022] NSWSC 872). The Plaintiff also sought an order for a grant of Probate. Leave was granted to the Attorney General to appear as amicus curiae -who may advise the court on a point of law or a matter of practice.

“The hearing of an amicus curiae is entirely in the Court’s discretion… The footing on which an amicus curiae is heard is that that person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted.”

Levy v The State of Victoria (1997) 189 CLR 579 at 604-605 

The decision

The Court was satisfied that the online will constituted a document under s 8. Having established that there is a document, the court was satisfied(at [95]) that the online will expressed the deceased’s testamentary intention because 

• the deceased initiated the creation of the document; 

• the terms of the document appeared rational; 

• the document dealt with all of the deceased’s property; 

• the deceased paid for the document; 

• the relevant intention was formed very close to the deceased’s death (suggesting it was not a test run or a draft waiting for amendment); 

• there was no one readily available to act as an attesting witness; 

• the deceased could not sign the online questionnaire; 

• and the email to her solicitor suggested she had formed the intention for the document to operate as her will.

The Court ordered that probate in solemn form of the Will dated 14 June 2021 be granted to the Plaintiff and that the Plaintiff’s costs be paid out of the estate of the deceased.

Section 56(3) of the Civil Procedure Act 2005 (NSW) provides that a party to civil proceedings is under a duty to assist the Court to further the overriding purpose and, to that effect, to participate in the processes of the Court and to comply with directions and orders of the Court. That conduct is also measured against the common law (including equity) and statutory obligations of an executor, including to the Court.

The role of executor is given legal effect by an order of the Court. It is a fiduciary position which also ensures the due administration of estates according to law. Not just those immediately concerned with the proper administration of an estate, but the members of the community generally, are entitled to expect that executors will discharge that office properly. Similarly, the community looks to the Court to ensure that is done and that a failure to meet the required standards of conduct is, where appropriate, penalised and thereby deterred.

On 9 June 2009, Ronald Whit (“the deceased”) died, leaving a Will dated May 1997 (the Will). The deceased’s son Ronald Whit (“the executor”) was granted probate by the Court on 1 June 2017 supported by an affidavit filed on 24 May 2017, which set out the assets of the Estate at $175,000 net assets.

Background

Ms Mottley (“the plaintiff”) commenced proceedings on 21 December 2018 seeking that the grant of probate be revoked and that the executor file verified accounts (“the proceedings”). The plaintiff engaged a process server to serve the commencing documents personally on the executor at his address in Yallourn North, Victoria; those attempts occurred between January and July 2019.

The Court made orders on September 2 2019, although the statement of claim was personally served on the executor on 6 September 2019, he has no recollection that this occurred. extending the time for service of the statement of claim upon the executor to 21 December 2019. Orders were also made for substituted service. 

On 25 November 2019, the Court listed the matter for hearing on 3 February 2020 and made an order for the plaintiff to notify the executor of the hearing date. The plaintiff’s solicitor sent a letter by express post to the executor on 26 November 2019, notifying him of the hearing on 3 February 2020 to his address in Yallourn North, Victoria, and his email address; an SMS message notifying the executor of the hearing date on 27 November 2019.

The executor moved out of the address in Yallourn North, Victoria around early December 2019.

In February 2020, the proceedings were listed for hearing and directions before Rein J. The executor did not appear. Further orders were made that the plaintiff serve the orders personally on the executor. Between 14 February 2020 and 17 August 2020, several attempts were made to locate and personally serve the executor following those orders. 

On 19 August 2020, the plaintiff’s solicitor sent an email to the executor that included: 

• (a) A copy of the Court’s Judgment of 14 February 2020. 

• (b) A copy of Exhibit A, the Court Book referred to in the Judgment of 14 February 2020. 

• (c) A copy of the written submissions provided by Counsel to the Court for the hearing on Monday 3 February 2020, Counsel’s later submissions emailed to his Honour’s Associate on Monday 10 February 2020, a copy of the Affidavit of Patrick Thomas Smith dated 11 August 2020, and a copy of the Affidavit of Michael Henry Atkinson dated 30 January 2020. 

• (d) a copy of the orders made on 19 August 2020.

On 16 October 2020, the proceedings were listed for hearing; the executor did not appear in person or via audio-visual link. 

The plaintiff’s representatives sought a bench warrant for the executor’s arrest; two days later Rein J ordered that a warrant be issued under s97 of the Civil Procedure Act 2005 addressed to the sheriff to arrest the executor and to bring that person before the Court for these proceedings detaining that person in custody in the meantime.

The Sheriff’s Office sent a letter by express post and via email to the defendant on 22 February 2021, requiring him to surrender himself to the Court by 24 March 2021. The defendant did not surrender himself to the Court.

On 13 December 2021, the executor was arrested in a caravan park at Moe, Victoria, by several Victorian Police Officers attached to the Fugitive Squad, accompanied by three NSW Sheriff’s Officers. The following morning the executor was flown to Sydney in the custody of NSW Sheriff’s Officers.

The proceedings returned for further directions before Rein J on 15 December 2021. The executor was present in court and was separately represented for the substantive probate proceedings and the contempt motion. The executor did not comply with the orders made on 15 December 2021

On 21 March 2022, the proceedings were listed for directions before Hallen J. the executor personally assured the Court that he would comply with the Orders by 4 April 2022. The executor failed to comply with the Orders by 4 April 2022 or at all and it has now been 12 months’ non-compliance with the Orders. 

The Matter

In Prothonotary of the Supreme Court of New South Wales v Whit [2023] NSWSC 264 the New South Wales Supreme Court sentenced the executor to twelve months imprisonment, subject to the sentence being suspended if he complied with the Court’s orders that gave rise to the proceedings against him. 

‘In addition to the need both to punish Mr Whit and compel his compliance with the orders of which he was in contempt, his sentence may serve as a salutary reminder of the importance the Court attaches to the proper discharge of an executor’s duties and to deter departure from the high standard of conduct which is expected of executors both under the general law and statute’

 Prothonotary of the Supreme Court of New South Wales v Whit [2023] NSWSC 264 at [2]

Moreover, ‘his contemptuous conduct occurred in the context of him being an executor and defendant in proceedings affecting the estate committed to his administration’ (at [72]).

The Court determined inter alia that a sentence of one year was appropriate considering ‘the need for a sentence that would be sufficient to deter others from similar conduct and remind executors generally of the importance of their obligations as such both inside and outside the courtroom’.

 Prothonotary of the Supreme Court of New South Wales v Whit [2023] NSWSC 264 at [95]

The Decision

In sentencing, the Court considered that the executor’s conduct has been a criminal contempt involving serious or contumacious disregard of the Orders. That seriousness is established by the Executor Issue and the Circumstances [70-74]. The Orders required compliance by 2 March 2022. The executor offered no reason, motive or excuse for his contempt. Furthermore, the Court believes the seriousness of the contempt was aggravated by the executor’s failure to fulfil his further assurance to the Court on 21 March 2022. That aggravating feature warrants a longer sentence than might otherwise have been the case.

In most cases an executor propounding a will pleads that at the time of execution the deceased had testamentary capacity. However, if a testator has lost capacity by the time the will is executed, the rule in Parker v Felgate (1883) L.R.8P.D.171  provides that it is enough that the testator understands they are executing a will for which they have previously given instructions.

Background

Georgina Compton (the deceased) died on September 2, 1882. Earlier that year the deceased had been diagnosed with Bright’s disease and had met with her solicitor Mr Parker on several occasions; instructing him that she wished to leave 500 pounds to her father, and 250 pounds to her brother, with the residue of her estate to be left to the Hospital for Sick Children in Great Ormond Street.

The deceased had previously loaned money to her father and brother in order to satisfy their creditors and prevent their bankruptcies. In the course of the interviews with Mr Parker the deceased was concerned that her father and brother might become bankrupt.

Following the interview Mr Parker prepared a draft will and went on holiday. The deceased became very ill and her brother and father were bankrupted. Mr Ponsford a partner in Mr Parkers legal practice prepared a will following the deceased’s instructions, Mr Parkers draft will and a draft bill of costs for preparing the will. 

Mr Ponsford included clauses that in the event of a bankruptcy of the deceased’s father and brother or if the Hospital for Sick Children in Great Ormond Street was unable to take its legacy the residue of the deceased estate should be distributed amongst her next of kin. 

On 26 August the deceased fell into a coma but was roused sufficiently on 29 August to direct Mary Ann Flack, to sign the will on her behalf.  

Two doctors gave evidence that the deceased opened her eyes, put out her hand, and smiled; the will was rustled in front of her face, and one of the doctors said “This is your will. Do you wish this lady (Mrs. Flack) to sign it?” And that the deceased replied, “Yes” 

As far as the doctor could judge there was no doubt that the deceased understood what she did.

The matter

The issue to be decided by a jury in Parker v. Felgate was whether Georgina Compton was competent to make her will. 

The plaintiffs, as executrix and executor, propounded the will dated the 29th of August, 1882, of Georgina Annie Stephens Compton, late of No. 16, Upper Gloucester Place, Dorset Square, widow, deceased, who died on the 2nd of September, 1882.

The statement of claim stated inter alia that the will was signed 

“ for the said deceased by Mary Ann Flack in the presence of and by the direction of the deceased.”

William Felgate, the deceased’s father and John Tilly, the trustee in bankruptcy of the deceased’s father and brother, (the de­fendants) pleaded separately that 

• the will was not duly executed, 

• the deceased was not of sound mind, memory, and understanding at the time of the execution of the will, and that 

• she did not know and approve of the contents of the will.

The Court expressed that the following possible states of mind are sufficient to establish capacity:

• If a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good will, if executed by the testator, is that he should be able to think thus far, ‘I gave my solicitor instructions to prepare a will making a certain disposition of my property. I have no doubt that he has given effect to my intention, and I accept the document which is put before me as carrying it out.’
• Even if she could not recollect all that had gone between her and the solicitor, she was in a condition, that if each clause of this will had been put to her, and she had been asked, ‘Do you wish to leave So-and-So so much?’, or ‘Do you wish to do this?’ (as the case might be) she would have been able to answer intelligently ‘Yes’ to each question.
• A person might no longer have capacity to go over the whole transaction, and take up the thread of business from the beginning to the end, and think it all over again, but if he is able to say to himself, ‘I have settled that business with my solicitor. I rely upon his having embodied it in proper words, and I accept the paper which is put before me as embodying it’.

The summing up continued:

“If Mr Ponsford only inserted these clauses because he believed the testatrix would approve of them that would not be sufficient. To make the clauses good there must be either instructions previously given or the will as drawn must be afterwards acknowledged or approved. If you believe that there were such instructions, then the will only expresses her intention and carries out her instructions, and the clauses cannot be rejected.”

Parker v Felgate and Tilly (1882-1883) LR 8 PD 171

The decision

The Jury accepted that Georgina Compton had testamentary capacity when she gave her instructions to Mr. Parker, recalled giving those instructions and understood that she was executing a Will, even though she could not remember the exact terms or understand the contents of the Will when it was read out to her.

If a person has been missing for at least seven years, a court may declare that the person is presumed to be dead. Owen Dixon J summarised the common law principles to be applied when a person has in circumstances involving the disappearance of a person,

…who in the circumstances of the case would according to the common course of affairs be likely to have received communications from him or to have learned of his whereabouts, were he living, then, in the absence of evidence to the contrary, it should be found that he is dead. But the presumption authorizes no finding that he died at or before a given date. It is limited to a presumptive conclusion that at the time of the proceedings the man no longer lives.

Axon v Axon (1937) 59 CLR 395 at 405

In South Australia, an application can be made to the Supreme Court under r 68 of the Probate Rules 2015 (SA) for an order to swear to death of a missing person in respect of whose estate a grant is sought where the fact of death is uncertain but there is evidence from which death may be presumed to have occurred; following which the person’s property can be dealt with as a deceased estate.

An applicant seeking a finding that the presumed deceased is dead should provide the following evidence

• A description of the presumed deceased including their age, and circumstances surrounding their disappearance or departure

• The applicant’s belief that the presumed deceased is dead and the basis of that belief, including evidence relevant to the question of whether the presumption has been displaced.

• That extensive searches have been undertaken looking for the presumed deceased including that advertisements seeking information concerning the presumed deceased have been inserted in newspapers, identifying the newspapers utilised, and the result of those advertisements. with no result.

• Extensive enquiries seeking information regarding the presumed deceased’s whereabouts with no response received.

• That persons expected to receive communication from the presumed deceased have had no contact with from them since their disappearance – including whether any letters have been received from the presumed deceased since their disappearance or departure and, if not, the last date of communication.

• That investigations and enquiries have been made by the relevant authorities resulting in the presumed deceased being listed as a missing person.

• Whether the presumed deceased died testate or intestate. If intestate, the application should state the names of the next of kin and of the potential heirs; if testate, the will should be filed.

• Particulars of the value and nature of the estate of the presumed deceased should be ascertained.

Other matters of relevance may also be deposed, and a failure to establish any of these matters will not necessarily defeat the application.”

In Re Westover (1987) 139 LSJS 115

Background

Ryan Chambers (“Ryan”) travelled to India with his friend John Booker (“John”) in June 2005 checking in to a yoga and meditation retreat in Rishikesh, in India’s northern state of Uttarakhand, on 18 August 2005. Following the evening meal on 23 August 2005, Ryan went to his room in the retreat adjacent to John’s room.

The next morning Ryan was not in his room, but John found Ryan’s wallet, passport, and other personal items he usually carried on his person.

John then continued the search but when he hadn’t found Ryan he called Ryan’s mother Di to let her know he could not find Ryan. John, then notified the Laxman Jhulla police who commenced enquires in the district to find Ryan.

Di reported Ryan’s disappearance to the Department of Foreign Affairs and Trade (“DFAT”) on 25 August 2005 and the following day Ryan’s father, Geoffrey Chambers (“Jock”), travelled to Rishikesh to assist with search efforts to locate Ryan. On about 4 September 2005, Ryan’s brother, Jarrad and John’s father, Stewart arrived in India to assist with the search.

Despite the Chambers family searching extensively over many years, Ryan has not been seen or heard of since 24 August 2005.

The decision

Jock made an application on 4 September 2020, to swear the death of a missing person in respect of whose estate a grant is sought – where missing person has not been seen or heard of since 24 August 2005 under r 68 of the Probate Rules 2015 (SA).

In granting the order the Court was satisfied that the presumption of continuance of Ryan’s life had been displaced giving rise to the presumption of his death – inferring that Ryan died on or since 24 August 2005.

The Court accepted that following extensive enquiries and searches there was no indication that Ryan is still alive and Ryan’s bank account has remained untouched since his disappearance. Additionally, no information concerning Ryan’s disappearance has been provided following investigations by his family, the Indian police, and DFAT.

The Court was satisfied that the presumption that Ryan was alive had been displaced giving rise to the presumption of his death and directing the

• Registrar of Births, Deaths and Marriages under s 35 of the Births, Deaths and Marriages Registration Act 1996 (SA), to register the death of Ryan as having occurred on or since 24 August 2005, with the cause and place of death being unknown.

• Registrar of Probates to issue a grant following an acceptable application for letters of administration by Ryan’s parents

On 12 May 2020, the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (the Regulations) came into force in Victoria. The Regulations allowed for the electronic signature and remote witnessing of various types of documents, including Wills under the Wills Act 1997 (the Act).

Witnesses could observe a testator sign a Will electronically or on hard copy over an audio-visual link. The testator would then transmit a copy of the Will to the first witness to sign electronically or on hard copy, after which the first witness transmits a copy to the next witness who repeats these steps. Finally, a copy of the signed Will is returned to the testator.

Importantly the testator and each of the witnesses must sign and date a final certification that the entire document is a true copy of the will which has been executed, in conformity with r 41(5)(f).

“I, [name] attest that this document was signed in counterpart and witnessed by me by audio-visual link following the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020.”

For the Will to be valid, all the above steps were to occur on the same day.

Background

The deceased died on 21 October 2020 survived by her husband, she was not survived by any children.

Re O’Day [2023] VSC 169 is an application for a grant of probate of a document described as a will of the deceased dated 15 October 2020 (the Document) and prepared during the COVID-19 pandemic.

The deceased instructed her solicitor to prepare and electronically sign the Document on her behalf; followed by two witnesses under ss 41(5)(a)-(e) of the Regulations and s 7(1) of the Act.

However, after the Document was executed and witnessed the solicitor did not write and sign a statement on the Document to the effect that it was a true copy of the will which had been executed in conformity with reg 41(5)(f) of the Regulations.

Application for probate

The plaintiff made an application for a grant of probate of the Document on 4 December 2020. However the Registrar found that due to the non-conformity with reg 41(5)(f) of the Regulations, the Document could only be admitted to probate as an informal will under s 9 of the Act.

There are three requirements for an informal will to be admitted to probate under s 9 of the Act:

• (a) there must be a document;

• (b) that document must express or record the deceased’s testamentary intentions; and

• (c) that document must have been intended by the deceased person to be their will.

The Supreme Court was satisfied of the first two requirements in this case.

Testamentary capacity

The propounder of a will must establish that at the time a testator signs their will they have testamentary capacity, as set out in Banks v Goodfellow.

However, an exception to this approach is provided under Parker v Felgate where a testator who lacks testamentary capacity at the time of execution of their will may make a valid will if:

• (a) the testator has testamentary capacity at the time when they give instructions to a solicitor for the preparation of the will;

• (b) the will is prepared to give effect to the instructions;

• (c) the will continues to reflect the testator’s intention; and

• (d) at the time of execution, the testator is capable of understanding and does understand, that they are executing a will for which they have given instructions.

Additionally, as the deceased’s estate was valued at over $1,000,000, the consent of all affected persons would be required for a grant of probate to be made.

Beneficiaries consent

Consents of twelve of the thirteen affected persons were later filed, however, the remaining beneficiary, was unable to give consent as she was a minor.

The Registrar of Probates notified the plaintiff on 30 March 2021 that as:

• (a) consent to the Registrar exercising the power of the Court under s 9(5)(b)(i) of the Act had not been filed and, in the event, the minor was unable to provide consent; and

• (b) they were not satisfied that the plaintiff had established that the deceased had capacity at the time of executing the will,

it was necessary for the matter to be referred to the Court for determination.

On 9 December 2021, orders were made for the plaintiff to give notice of this application and for leave to be granted to the minor beneficiary by a litigation guardian, to file a summons to be joined as a party to the proceeding by 28 January 2022.  No summons for joinder was subsequently filed.

The decision

The evidence of the plaintiff concerning the signing of the Document together with the solicitors’ observations satisfied the court that, on 15 October 2020, the deceased had sufficient capacity to appreciate that she was signing a will that had been prepared following her instructions.

Additionally upon executing the Document, the deceased believed and intended it to be her will, and she had testamentary capacity at the time she instructed the solicitor to prepare the Document.

The Court ordered that the Document be admitted to probate as an informal will.

The principle behind mesne profits is that a trespasser must compensate the landowner for the use of their land. Importantly the landowner does not need to have suffered any loss with mesne profits for calculated as the amount equivalent to the ordinary letting value of the property.

Following the termination or expiry of a tenancy, the liability to pay mesne profits arises when a former tenant continues to occupy the property and continues until it surrenders possession of the land.

Background

Anneli Jortikka (the Plaintiff) bought proceedings to remove her sister, Jasmins Haukka, ( the defendant) as co-executor of their mother’s estate.

The plaintiff sought mesne profits for the defendant’s alleged occupation of the property and refusal to allow it to be sold between the death of the deceased (26 August 2017) and when the defendant took possession of the property (7 December 2020) with the Court observing the

‘plaintiff is prima facie entitled to damages for the trespass calculated as the reasonable rental value of the premises during the relevant period of the trespass.’

Jortikka v Haukka [2023] VSC 20 at [56]

The defendant submitted that the financial claims should be met from the plaintiff’s share of the remaining assets of the estate.

The decision

The Court held that as the defendant occupied the property with the implied consent of the plaintiff the claim for mesne profits for the entire period the defendant occupied the property following the death of the deceased was at the very least ambiguous.

However, the position changed after the end of the negotiation period and the plaintiff’s solicitor sent the defendant a letter demanding that she vacate the property and consent to its sale on July 2 2019 (the letter).

The letter made it clear that the defendant no longer had the plaintiff’s consent to remain in the property, and should provide the estate with vacant possession the property within a reasonable time. The court held that a reasonable time is 90 days – the usual notice for tenants in Victoria where a landlord wishes to sell a rental property.

Mesne profits should be payable by the defendant from 1 September 2019, save for the period between 10 September 2020 and 30 October 2020 where by reason of the plaintiff’s Court order the defendant was permitted to occupy the property; this order was silent as to payment of rent.

The letter “expressly and emphatically” withdrew the defendant’s consent to occupy the property with the defendant liable for mesne profits for the period of trespass thereafter.

The Court held that the plaintiff’s occasional visits to secure and maintain the property when the defendant was absent did not detract from the estate’s entitlement to mesne profits for the period identified.

The Court also awarded the plaintiff commission at a comparatively generous rate of 3.5% which was considered a modest recompense for the “pains and troubles” incurred in the administration of the estate. The court accepted that as the plaintiff was entitled to half the estate and would, in practical terms, be required to fund half the commission (at [77 – 78]).

Letters of administration durante absentia (during the absence from the jurisdiction of an executor or other person entitled to a grant) may be made under s 76 of the Probate and Administration Act 1898 (NSW). An absent executor gives a power of attorney to an agent, who will receive the grant of administration with the will annexed, as attorney of the executor: In the Goods of Barker [1891] P 251.)

If a deceased person’s administrator or executor to whom probate has been granted resides outside the jurisdiction of the estate, at the expiry of 12 months from the date of the deceased person’s death, the Court may appoint an administrator durante absentia (during the absence from the jurisdiction of an executor or other person entitled to a grant) under s 24(1) of the Administration and Probate Act 1958 which provides that an eligible applicant for letters of administration durante absentia must be either a creditor; or a person interested in the estate.

Background

Michael Galanis (the deceased) was born on 3 July 1927. He migrated to Australia in 1955 and died intestate in 2019, aged 92 years. The deceased had never been married and had no children. As the deceased’s parents predeceased him his brothers and sisters are entitled to the whole of the intestate estate under s 129 of the Succession Act 2006.

The deceased had three siblings, his brothers Antonios and Konstantinos predeceased him and his sister Eirini, died in January 2021. Only Antonios had children, Konstantinos, and Kyriakos.

In November 2022 the Court granted Letters of Administration durante absentia to James Jordan, (the plaintiff) a solicitor, as Attorney of and for the use and benefit of the deceased’s nephew Konstantinos limited until Konstantinos returns to the jurisdiction and obtains a grant.

In support of his application for the grant, the plaintiff filed an affidavit deposing that the persons entitled to the deceased’s estate were

• one quarter each to the deceased’s nephews Kyriakos and Konstantinos;

• one half to the estate of Eirini under s 129 of the Act.

The deceased’s estate has an estimated value of about $5.63 million with the result that the one-quarter share held is approximately $1.4 million.

However, Kyriakos disappeared in Crete in 1985 and has not been seen, or heard of since.

In response to a requisition of a Probate Registrar, concerning the requirement under the rules of intestacy for searches to determine the identity of those entitled to the deceased’s estate the plaintiff filed an affidavit that included an undertaking that he would not distribute Kyriakos one-quarter share of the deceased’s estate.

In October 2008, the municipal court in Chania, Crete, determined that Kyriakos should be declared

“dead in absentia for the reason that from 1985 till this day he is absent without any news so that his death is very probable”.

The matter

The plaintiff sought an order that he be discharged from his undertaking not to distribute the Kyriakos’ one-quarter share of the deceased’s estate and entitlement to distribute the estate to the exclusion of Kyriakos Galanakis.

Additionally, if Kyriakos is established to be alive, then Konstantinos shall repay to the administrator one-half of the amount distributed to him from the estate so that there will be an equal division between the brothers.

“Any undertaking given to the court is capable of being discharged by the court whenever it appears to the court that circumstances have arisen which make that course a proper one in the interests of justice.”

Russell v Russell [1956] P 283 at 297

The Plaintiff submitted that no other person would be affected if he were released from the undertaking; there is no public interest in its maintenance; and releasing the Plaintiff from it would be of practical utility since it would enable him to complete the administration of the deceased’s estate.

As the search for Kyriakos has now ended there is no longer any need to require the undertaking to remain in existence.

In the circumstances, the release of the plaintiff as administrator, from the given undertaking is both convenient and just. Importantly, without being released therefrom, contravention would involve the Plaintiff being in contempt of court if he distributed the estate.

The decision

The Court ordered that the Plaintiff,

• be released from his undertaking to not distribute Kyriakos share of the deceased’s estate

• may distribute the estate as if Kyriakos had predeceased the deceased without issue, and that the one-quarter share to which he would have been entitled may be distributed to Konstantinos.

Additionally, if Kyriakos, or any issue, is established to be alive, then Konstantinos shall repay half of the total amount distributed to him from the estate so there will be an equal division between those brothers and the Plaintiff’s costs, on an indemnity basis, be paid out of the estate of the deceased

Section 10A of the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act), provides that the following factors must be met for two people to be in an interdependency relationship:

• they have a close personal relationship; and

• they live together; and

• one or each of them provides the other with financial support; and

• one or each of them provides the other with domestic support and personal care.

Regulation 1.04AAAA of the Superannuation Industry (Supervision) Regulations 1994 (Cth) (SIS Regulations) specify various factors to be taken into account in determining whether there is an interdependency relationship. These factors are very similar to the factors for a de facto relationship, with the addition of whether the relationship was intended to be permanent or whether the relationship was one of mere convenience. These factors are:

• the duration of the relationship; and

• whether or not a sexual relationship exists; and

• the ownership, use and acquisition of property; and

• the degree of mutual commitment to a shared life; and

• the care and support of children; and

• the reputation and public aspects of the relationship; and

• the degree of emotional support; and

• the extent to which the relationship is one of mere convenience; and

• any evidence suggesting that the parties intend the relationship to be permanent.

However, not all of these factors have to exist for an interdependency relationship to be found to exist.

The Australian Financial Complaints Authority (AFCA) is an impartial, independent body that assists consumers and small businesses to resolve complaints with superannuation trustees and other financial firms. If a complaint cannot be resolved, AFCA will decide an appropriate outcome.

Siblings

In Case 810873 (concerning N M Superannuation Pty Ltd), AFCA was satisfied that there was an interdependent relationship between the deceased and his sister.

The deceased arranged for his wages to be deposited into the sister’s account, she managed his finances including paying the rent and bills. They lived together for five months preceding his death. She also did the shopping.

The sister drove the deceased to his counsellor and assisted with his health and well-being. When the deceased was in prison the sister supported him and was the point of contact for his parole officer.

AFCA held that they supported each other mentally, emotionally and financially and the sister had a reasonable expectation that her interdependency relationship with the deceased would have continued indefinitely had he not died, and she would have continued to enjoy the deceased’s contributions to household expenses.

The deceased had two children, a son who was 16 and a daughter who was 13 when he died, Although child support arrangements were in place, the member only made a small number of child support payments which stopped due to his addiction and time spent in jail.

AFCA determined that the children were entitled to financial support from the deceased until they turned 18. The sister and the daughter received 35 per cent and the son 30 per cent of the member’s death benefit.

Friends & Housemates

In Case 802546 (concerning Retail Employees Superannuation Pty Ltd) the deceased and the complainant were friends and housemates who had met at school in 2013. The deceased moved in to live with the complainant in November 2016 and remained living there until he died in June 2017, at age 19.

AFCA accepted that the evidence demonstrated they had a special bond and were a source of support to one another. The member paid the complainant’s rent. The complainant drove the member to doctor’s appointments.

However, given the ages of the complainant and deceased and the relatively short duration of the living arrangement, AFCA was not convinced there was a

“close personal relationship of the relevant kind, nor an intention for the relationship to be permanent nor that there was a mutual commitment to a shared life in the relevant legislative sense.”

Case 802546 (concerning Retail Employees Superannuation Pty Ltd) at 4

AFCA noted that as there wasn’t an intention for the relationship to be permanent nor a mutual commitment to a shared life an interdependency relationship was not legislated to include flatmates or friends.

Kenneth Talbot (“the deceased”) left a Will dated 29 November 2002 (“the 2002 Will”) prepared by a solicitor, William Boyd (Boyd). The deceased, either individually, or through corporate and trust entities he controlled, had hundreds of millions of dollars worth of assets.

Background

The deceased’s circumstances had “materially changed” between the execution of the 2002 Will and mid-2008, with the sale of his business Macarthur Coal for $860million.

In September 2006, Boyd sent an email to the deceased’s assistant indicating that a review of his 2002 will was long overdue. Boyd sent similar emails in September 2005 and November 2007 with the deceased retaining Boyd to prepare a new will in November 2007.

Boyd had drafted instructions reflecting the deceased’s wishes and briefed counsel to provide advice concerning succession planning in October 2008. The deceased’s wife Amanda’s position as a beneficiary under the proposed new will was more beneficial to her than her position under the 2002 will.

In December 2008, although the deceased had indicated that he wanted to complete the new will Boyd informed him that it required more time due to the complexities of the matter. Counsel advised that an interim will be drafted in the meantime. On 1 June 2009, counsel sent Boyd an email attaching a draft of the new will.

On 19 June 2010, a plane crashed in a remote region of the Republic of Congo the deceased was listed on the passenger log; there were no survivors. The deceased was survived by his spouse (Amanda) and their two infant children (Alexandra and Claudia) and by two adult children from a former marriage (Liam and Courtney). Although Boyd and the deceased had continued to discuss updating the will neither a new will nor an interim will was executed before the deceased’s unexpected death.

At the time of his death, the deceased was resident in Queensland. He owned real property and other assets in Queensland. His overseas assets included real estate in Paris, Shanghai and Lake Como in Italy.

Removal of executor

The 2002 Will appointed Paul Bret, a Texas-based businessman as executor who had realised almost $300 million worth of estate assets, between commencing the executorship and when the executor agreed to retire, (in exchange for the payment of $10 million) in June 2012. The retirement had been actively sought by all the beneficiaries who were dissatisfied with his conduct. On 27 June 2012, Boyd was appointed administrator of the deceased’s estate.

Between 2010 and 2012, Amanda retained Melbourne-based law firm Arnold Bloch Leibler (ABL) to help manage the deceased’s estate.

The matter

Amanda became dissatisfied with Boyd’s conduct as administrator in about 2015 and commenced actions in negligence against Boyd concerning the deceased’s will and the administration of his estate, and ABL for failure to advise of possible claims against Boyd over the preparation of the 2002 will

Additionally, Amanda claimed that had Boyd created a new will in 2007 she would be in a better position financially. Submitting that if ABL had advised her to oppose Boyd as administrator and trustee in 2012 she wouldn’t

“have been exposed to the expenses and losses associated with the incompetence of Mr Boyd’s administration of the estate,”

The decision

In an extensive judgment, the Supreme Court of Queensland dismissed the claim finding that following execution of the 2002 Will, Boyd did not breach any duty and did not act contrary to the standards of a reasonably competent solicitor in failing to prepare a further Will. Similarly, ABL did not breach its duty of care in the provision of advice pursuant to its retainer with Amanda.

It is worth noting that the Court held that the deceased was

“An intensely private man in life, his express wish in death was that his Will remain confidential and that his estate be administered with the upmost privacy…This proceeding, which concerns his last testamentary wishes and the administration of his estate, leaves that express wish in tatters.”

Talbot & Ors v Boyd Legal (A Firm) & Ors [2023] QSC 8 at 2

 

Limited grants of administration are designed to accommodate specific circumstances arising in an estate where it is not possible to obtain a full grant of administration or probate. Unlike a full grant of which vests general powers in the executor or administrator to act on behalf of the deceased’s estate until the administration of the estate is complete, a limited grant typically vests a specific power or action and a time frame within which the grant is operable to accommodate the special needs of a particular estate.

In New South Wales s73 of the Probate and Administration Act 1898 provides that a grant of letters of administration pendente lite may be sought where litigation prevents the estate from being administered. The general jurisdiction of the court to make limited grants of administration should only occur in circumstances that require the interference of the Court to protect the assets of the estate

“it must be shown that the estate was in jeopardy—and that it was necessary to make the order for its protection.”

Greenway v McKay (1911) 12 CLR 310 at 315.

However, it is not necessary that the jeopardy arises from some misconduct on the part of a person dealing with or claiming to preserve the assets of the deceased estate; Gooley v Gooley [2020] NSWSC 798 at [125].

“The object of an appointment of administrator pendente lite is to ensure that the deceased estate is managed and preserved for the benefit of those persons who may ultimately be found in the suit to be entitled to it’

Gooley v Gooley [2020] NSWSC 798 at 126

A grant of administration pendente lite allows an administrator to recover, call in and preserve the assets of the estate for the duration of the proceeding until a judgment has been delivered by the Court. The administrator is required to treat potential beneficiaries with impartiality.

A grant of letters of administration pendente lite enables the Court to fashion the powers of the administrator to ensure that the deceased estate is managed and preserved for those beneficiaries the Court ultimately finds to be entitled to it. As a result, beneficiaries have no direct entitlement to the estate during the administration pendente lite.

The matter

Ivan Ritossa (the Applicant) and Anthony Ritossa (the First Respondent) are engaged in probate proceedings concerning the three competing wills of their late mother, Maria Ritossa (the Deceased).

Two adjoining parcels of land in Maroubra (the property) are the estate’s principal asset. The property has remained vacant and has been informally managed by the Applicant since the Deceased’s death on 30 April 2019.

The parties disagree as to whether the property should be sold or leased and whether a caretaker should have been appointed at a cost to the estate.

The First Respondent was granted orders under s 73 of the Probate and Administration Act 1898 (NSW) (the Act) and in the Court’s inherent jurisdiction for the appointment of an interim administrator pending the determination of the probate proceedings on 10 August 2022.

Tamara Goodwin (the Second Respondent), was appointed administrator with power until the determination of the probate proceedings, including any appeal;

• to lease or

• sell the property – with the prior written consent of the Appellant and the First Respondent or the leave of the Court.

The appeal

The applicant sought leave to appeal with the principal issue being whether the discretion to appoint an interim administrator could only be exercised protectively where it was established that the estate was “in jeopardy”.

In refusing leave to appeal, the Court of appeal held that the inability of the parties to agree on an interim arrangement and the management of the property meant it was open to the primary judge to appoint an interim administrator of the estate under s 73 of the Act

Additionally, the primary judge was correct in emphasising the broad nature of the power to appoint an interim administrator and resisting the Applicants urging to find some tangible evidence of “jeopardy” to the estate as a pre-condition to, or prerequisite of, appointment.

“[i]t is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words”

Owners of Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404 at 421; [1994] HCA 54

Similarly, as the power to appoint an interim administrator is constrained only by the requirement to advance the due and proper administration of the estate in the best interests of the ultimate beneficiaries judicial glosses should not otherwise be applied to the broad language of the Act as the

“Necessity for the power to be exercised judicially trends in favour of the most liberal construction”.

Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178 at 205