New South Wales Supreme Court CITATION : Re Estate D J Hancock [2000] NSWSC 875 CURRENT JURISDICTION: Equity Division Probate List FILE NUMBER(S) : SC 113321/98 HEARING DATE(S) : 21/08/2000 JUDGMENT DATE : 31 August 2000 PARTIES : Michelle Joy Tout (Applicant for Administration) Carol Ann Hancock (Proposed Tutor) JUDGMENT OF : Young J COUNSEL : G Van der Vlag (Applicant for Administration) M S Willmott (Proposed Tutor) SOLICITORS : J M Glass & Son (Applicant for Administration) W B Scott & Tong (Proposed Tutor) CATCHWORDS : SUCCESION [74] & [90]- Administration- Minor taking on intestacy if mother not deceased's de facto wife- Whether grandmother should be appointed minor's guardian to contest claim for administration. LEGISLATION CITED : Wills Proabate & Administration Act 1898 s 32G Supreme Court Rules, Part 78 rules 29 & 31 Re Dillon's Infants (1891) 7 WN (NSW) 131 CASES CITED : Re Ewing (1828) 1 Hag Ec 381; 162 ER 619 Re Stephenson (1866) LR 1 P & D 287 Re Weir (1862) 2 Sw & Tr 451; 164 ER 1070 DECISION : See para 16 THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST YOUNG J THURSDAY 31 AUGUST 2000 113321/98 - RE ESTATE D J HANCOCK JUDGMENT 1 HIS HONOUR: The basal facts are that David John Hancock died on 28 March 1998. He left surviving him the plaintiff, Michelle Joy Tout who claims to be his de facto widow, a daughter Kimberley Joy Tout (whose mother is Michelle Joy Tout) (Kimberley was born on 9 July 1996 and is now four years of age) and his mother, Carol Ann Hancock. Michelle Tout has another daughter, Rebecca Tout. 2 The deceased appears to have left a document on a newsagent's will form which bears a signature that could be his and a date, 10 December 1997. This document leaves property to Michelle Tout and to her two daughters. Carol Hancock disputes the validity of this document. 3 Michelle Tout has disclosed the existence of the document but has applied for letters of administration on the basis that the deceased died intestate. 4 If Michelle Tout was the de facto partner of the deceased she would be entitled to a grant. If she was not, then the person entitled to the grant would be Kimberley Tout. 5 Carol Hancock lodged caveats against a grant of administration. It is quite clear that she has no interest in the estate at all because if the facts fall out one way, Michelle Tout takes the estate; if they fall out another way, Kimberley Tout takes. Accordingly, on 21 August 2000 I ordered that the latest caveat ceased to have effect. 6 Mr Willmott of counsel, who appeared for Carol Hancock, then said that his client wants to ensure that Kimberley takes the estate rather than Michelle, and to protect Kimberley's interest it is necessary that the proceedings brought by Michelle for administration be defended. Mr Willmott proposed that Carol Hancock be appointed Kimberley's guardian under Part 78 rules 29 and 31 of the Supreme Court Rules. Mr Van der Vlag, who appeared for Michelle Tout, objected to this. He further objected to any more interference by Carol Hancock in the grant of administration on the basis that the only evidence before the Court is that Michelle Tout had had a de facto relationship with the deceased on a bona fide domestic basis and they had had a child together. Mr Van der Vlag also pointed out that the estate is a relatively small one, having a value of approximately $102,000 nett. 7 Part 78 rules 29 and following are in the division of the Probate rules dealing with grants of administration during minority. It is possible for a person to make his or her executor a person who is under 18 years of age. If that occurs, then the Court in the first instance makes a grant durante minore aetate (dma) until the nominated executor attains his or her majority. 8 The practice for centuries in such cases has been to distinguish between the case where the named executor is an infant (under seven years) or a minor (between 7 and 18). In the latter case, the minor may elect a guardian who, if he or she consents, may be given a grant dma. Ordinarily, the grant is to be made to the next of kin of the minor, but if that next of kin is a minor or there are good reasons for passing over the next of kin, then some other person may be appointed. It is all a matter for the discretion of the Court subject to those general guidelines; see for instance Re Ewing (1828) 1 Hag Ec 381; 162 ER 619; Re Weir (1862) 2 Sw & Tr 451; 164 ER 1070 and Re Stephenson (1866) LR 1 P & D 287. The subject matter is covered in Tristram and Cootes Probate Practice (Butterworths, London, 1946) pp 252 and following. 9 The English authorities have been accepted in Australia; see for instance Re Dillon's Infants (1891) 7 WN (NSW) 131. 10 Part 78 rules 29 to 31 deal with the situation of a grant dma: they do not have any wider operation. 11 The next question is whether Mrs Hancock is entitled to apply to become the tutor of Kimberley so that Kimberley can defend the proceedings brought by her mother for administration. 12 I have given this some deep thought. It seems quite clear that if Mrs Hancock is not appointed Kimberley's tutor, no-one else will act on Kimberley's behalf and the consequence will be that there will be a grant of administration to her mother without contest. If Mrs Hancock is correct in her views, this will mean that Kimberley will miss out on her inheritance by default. 13 However, the other side of the picture is: (a) the estate is only a relatively small one and is not to be consumed with costs; (b) there is no evidence to suggest that what Mrs Hancock is really doing is in Kimberley's best interests rather than her own; (c) Kimberley, if able to make her own decision after being properly advised by an independent adviser, may well take the view that it is better for her mother to take the inheritance and look after Kimberley rather than Kimberley having the money on trust; (d) that there is no substantial evidence to this date put forward by Mrs Hancock against Michelle Tout being a de facto within the meaning of the Wills Probate and Administration Act 1898; and (e) conversely, there is fairly strong evidence from Michelle Tout that she is such a de facto. 14 The definitions of "de facto relationship" and "de facto wife" in section 32G of the Wills Probate and Administration Act 1898 do not refer to the relevance of a child of the relationship having been produced. However, where there is evidence that a child was produced and that the child appears to be living with both parents, that must be thought to be fairly substantial evidence of a de facto relationship. 15 In all these circumstances it seems to me that to permit Mrs Hancock in any guise to be involved in the litigation on the ostensible behalf of Kimberley would really be to let a third party interfere in someone else's affairs and someone else's litigation. 16 Accordingly, despite Mr Willmott's ingenuity in bringing the application that he has, in my view I should not grant the application. I now remit the application for grant of administration to the Registrar to make the grant if he thinks it appropriate. ******************** Last Modified: 09/27/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.