Re Estate Harriett Cassel [2000] NSWSC 294

New South Wales Supreme Court

CITATION : Re Estate Harriett Cassel [2000] NSWSC 294 CURRENT JURISDICTION: Equity Division Probate List FILE NUMBER(S) : SC 104731/2000 HEARING DATE(S) : 30/03/2000 JUDGMENT DATE : 30 March 2000

PARTIES : Douglas Gordon Cassel (P) Ronald Alan Earle and Margaret Rose Earle (D) JUDGMENT OF : Young J

COUNSEL : M Bridger (P) L Ellison and M McHugh (D) SOLICITORS : Colin James & Associates (Tweed Heads) (P) Eric Butler (Newcastle)(D) CATCHWORDS : Law Reform- Limited grants of administration for Famiily Provision Act purposes- Improvements needed - Succession [95]- Administration- Soley for purposes of a Family Provision matter- Considerations- Wills Probate & Administration Act, 1898, s 41A LEGISLATION CITED : Wills Probate & Administration Act, s 41A CASES CITED : Leue v Reynolds 4 March 1986 Underwood v Underwood 2 March 1990 DECISION : See para 18

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

YOUNG J

Thursday 30 March 2000

104731/00 - RE ESTATE HARRIET CASSEL

JUDGMENT

1 HIS HONOUR: There is listed in the General Equity List this morning an application under the Family Provision Act 1982 by Douglas Gordon Cassel in respect of the estate of his late mother Harriett Cassel (No 5001/99). 2 At present, those proceedings are liable to be dismissed because there is no representation for the estate of Harriett Cassel. However, the proceedings can be saved if an order is made for administration today, because of the decision in Leue v Reynolds - Hodgson J 4 March 1986, unreported. 3 The Court is not able to make a final grant at this stage because there is doubt as to which is the testatrix's last will. She made a formal will in 1995 and then made certain alterations to it and added riders, and there is an issue as to whether the document with its alterations and riders might be a will under s 18A of the Wills Probate and Administration Act 1898 (the "Wills Act"). 4 The only salvation for the plaintiff accordingly is to have a grant under s 41A of the Wills Act. 5 That section, which was introduced into the Wills Act at the same time as the Family Provision Act 1982 came into force, provides that the Court has jurisdiction to grant administration "in order to permit an application to be made under the Family Provision Act, 1982, where it is satisfied that it is proper to make the grant". Subsection 2 makes it clear that the grant is only for the purpose of making an application under the Family Provision Act, and that the Court may grant the administration to any person who it is satisfied is an eligible person within the meaning of that Act. 6 Counsel for the defendants in the Family Provision Act proceedings, who are the persons to whom in due course a grant of either the 1995 or amended will will be made, oppose the application. They say that s 41A of the Wills Act only applies where the Court is satisfied that it is proper to make the grant, and that it is not proper to make the grant where the Court cannot fully determine the Family Provision Act proceedings. Counsel say that the Court cannot fully determine the Family Provision Act proceedings until it knows how the beneficial interests are to flow under the will. 7 The practice of the former Probate Division was to make a grant under s 41A whenever there was evidence that an eligible person requested it. The reason for this is that the Court has taken the view that the purpose of the section is merely to enable Family Provision Act applications to be made within 18 months of the date of death and the section was inserted so that defendants could not frustrate the proceedings by delaying the taking out of a grant. This is reinforced by the Supreme Court Rules. Part 78(26A) provides that an application for a grant will be in Form 105A. This form is drafted on the assumption that the person to get the grant is either the plaintiff being the eligible person, or the plaintiff on behalf of the eligible person, presumably in a situation where the eligible person is under a disability. 8 The grant under s 41A is not a grant entitling the grantor to administer the estate in any way at all. It is a grant purely to get over the barrier that would otherwise prevent an application being made under the Family Provision Act. 9 Accordingly, what usually occurs in this sort of case is that a grant is made to the plaintiff who is about to bring proceedings under the Family Provision Act. The Court, when hearing those proceedings, then needs to appoint a person to represent the estate under Part 8 rule 16, or some other rule under Part 8. 10 All this seems rather pointless. A grant is made purely to remove the barrier to the Family Provision Act claim. It does not provide for the administration of the estate, provide authority for anyone to enquire as to the deceased's assets or the identity or wishes of the beneficiaries. It is left to the plaintiff to make a series of applications, (1) to the Probate Court for a grant; and (2) to the Equity Court for directions as to who should be a representative defendant. These costly applications confer no real benefit on anyone. It may well be that s 41A should be amended or the Family Provision Act amended so as to permit applications to be made without a grant, provided that the Court is able to appoint a person to represent the estate. 11 It may also have been that in the present case it would have been more appropriate to appoint the defendants as administrators ad litem. However there was not time to consider this. 12 Mr Ellison and Mr McHugh for the defendants, put that the Court could not be satisfied that it was proper to make the grant in the present case for the reasons that I have noted. I would reject this submission. If the section operates merely to remove the barrier to a Family Provision Act claim, then the only reason why one would think it not proper to make the grant would be connected with the making of the Family Provision Act application. It does not seem to me that the finalisation of the application is necessarily involved in that assessment. There is an 18 month time limit for bringing a Family Provision Act application. So long as the application is brought in time there is no requirement in the usual case that it be completed at a certain time. 13 In any event, in the present case, having briefly looked at the material in the Family Provision Act file with the agreement of counsel for both parties, it can be seen that there is only a relatively small difference between the two versions of the testatrix's will. In both scenarios the plaintiff himself receives about $24,000 net. It is true, as Messrs Ellison and McHugh say, that the Court may have a problem in working out how the burden of the order for provision is to fall under s 10 of the Family Provision Act, but that is not necessarily a reason why the Court should not pursue the remainder of the proceedings. 14 Miss Bridger for the plaintiff, kept submitting that the matter is urgent because the plaintiff has only a short time to live as he unfortunately is a victim of an insidious dust disease, that he lives in Tweed Heads and that he and all his family have come down to Sydney for the hearing today, so it must proceed. 15 I can understand that the plaintiff's solicitors thought that there would be a full grant in the estate before this, and I can understand how the approach to the proceedings has been expedited because of the plaintiff's health. However, there is really no reason why the present application was not made weeks ago. Solicitors who commence proceedings under the Family Provision Act where no grant has been made need to apply for a s 41A grant unless they are sure that there has been a grant before the hearing starts. It needs to be noted that in Underwood v Underwood - McLelland J, 2 March 1990, unreported, not even an order for expedition was made in this sort of case before a grant under s 41A had been obtained. 16 The application was originally made by motion in the Family Provision Act proceedings. This is an incorrect procedure for a number of reasons, not the least of which is the fact that until the grant is made such proceedings are completely irregular. 17 The Rules make it clear that the application for the grant has to be advertised. Fourteen days' notice needs to be given. As it would seem to me in the instant case that everyone who could possibly be affected by the grant has been notified under the Family Provision Act, I will dispense with the advertisement in this particular case. It should not, however, be considered to be a precedent. 18 I order that a grant of administration in the estate of Harriett Cassel be made in favour of the plaintiff under s 41A of the Wills Act. I refer the matter to the Registrar to complete the grant. 19 I record my indebtedness to Mr Paul Studdert, a Deputy Registrar in Probate, who was willing to leave his regular duties to assist me in the making of this order and subsequently the processing of it so that there was actually a grant made before the evidence in the Family Provision Act proceedings finished at 3.30 pm on the day the application for the grant was made. 20 I thought that it was appropriate to give reasons in these proceedings to act as some guide for any future problem under the section as it does not appear to have been considered in a reported case.