Re P (OH) and the Protected Estates Act [1999] NSWSC 387

New South Wales Supreme Court CITATION : Re P (OH) and the Protected Estates Act [1999] NSWSC 387 CURRENT JURISDICTION : Equity Division Protective List FILE NUMBER(S) : G910/97 HEARING DATE(S) : 19/04/99 JUDGMENT DATE : 19 April 1999

PARTIES : JUDGMENT OF : Young J

COUNSEL : The matter was considered in private chambers without representation SOLICITORS : CATCHWORDS : Mental Health [4]; Power of Manager; Incapable person an executor; Deed to be executed to vest executorship in Public Trustee; Succession [69]; Executor incapable; Order that deed be executed to transfer executorship to Public Trustee (NSW) Protected Estates Act 1983 ss 22A, 24(1), 24(2), 71 ACTS CITED : (NSW) Family Provision Act 1982 (NSW) Wills Probate and Administration Act 1898 ss 75A(2), 75A(4) (NSW) Conveyancing Act 1919 ss 38, 159, 163 DECISION : See para 10

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROTECTIVE LIST

YOUNG, J

Monday 19 April 1999

G910/97 - RE P (OH) AND THE PROTECTED ESTATES ACT

JUDGMENT 1 HIS HONOUR : On 10 October 1997 this Court granted probate in the estate of Mrs P's husband to Mrs P. On 3 December 1997 an order was made by the Guardianship Board under s 22A of the Protected Estates Act 1983 whereby the management of Mrs P's estate was committed to the Protective Commissioner. At the time that order was made the estate of P was not fully administered. 2 In about November 1997 one of P's children commenced proceedings under the Family Provision Act 1982 in respect of P's estate. 3 The Protective Commissioner wishes to delegate to the Public Trustee Mrs P's executorship pursuant to s 75A(2) of the Wills Probate and Administration Act 1898. The matter has been referred to me as the Judge administering this List to approve that practice. 4 It would seem in England that when an executor becomes incapacitated and there has been the appointment of a person generally to administer the estate that a fresh grant of administration is made to that person for the use of the incapable person as long as she remains incapable, though the first grant is not impounded: Re Cooke [1895] P 68, 69. 5 The same procedure has been applied in New South Wales; see Geddes Rowland & Studdert Wills Probate and Administration Law in NSW (LBC, Sydney, 1996) p 798. 6 However, s 75A of the Wills Probate and Administration Act appears to provide a simpler and less expensive method of proceeding. Section 75A(2) permits an executor who has obtained probate whether or not he or she has acted in the administration of the estate, by deed to appoint the Public Trustee to be executor in that person's stead. 7 Section 38 of the Conveyancing Act 1919, requires deeds to be signed. However, although the section does not explicitly say so, it is quite clear that the pre-existing law that a deed may be signed by a duly authorised attorney continues to apply. This is made clear by sections such as 159 and 163 of the Conveyancing Act. In England a committee may execute a deed on behalf of a mentally incapable person and the signature of the committee acting on behalf of the incapable person is deemed to be the signature of the incapable person; see Lawrie v Lees (1881) 7 App Cas 19, 28. 8 Section 24 of the Protected Estates Act 1983 provides that in respect of the estate of a protected person which has been committed to the Protective Commissioner, the Commissioner may exercise all functions necessary and incidental to its management and care and such other functions as the Court may authorise the Protective Commissioner to have or exercise. In subsection 2 a list of 16 particular powers is set out, but this is clearly stated to be without limiting the generality of s 24(1). None of the specific powers, however, relates to situations where the protected person is an executor. Section 71 deals with the case where a power is vested in a protected person as a trustee or guardian, but I agree with the tentative view of the Protective Commissioner that this does not extend to the situations where the incapable person is an executor of an unadministered estate. 9 Although the contemplated deed requires the Protective Commissioner to act not so much in connection with the estate, but rather in connection with property over which the incapable person has control as executor, in my view s 24(1)(b) of the Protected Estates Act is sufficiently wide to give the Court power to authorise the Protective Commissioner to have the powers to execute the deed required under s 75A of the Wills Probate and Administration Act. 10 Accordingly, I authorise the Protective Commissioner to execute the proposed deed appointing the Public Trustee as executor of the estate of P in lieu of the incapable person. 11 As, unless an order is made in the Family Provision Act proceedings, Mrs P is the sole beneficiary, there does not appear to be any need to comply with s 75A(4) of the Wills Probate and Administration Act. **************