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