Estate of Terry [2012] NSWSC 927

Supreme Court New South Wales

Medium Neutral Citation: Estate of Terry [2012] NSWSC 927 Hearing dates: In chambers Decision date: 14 August 2012 Jurisdiction: Equity Division - Probate List Before: White J Decision: Refer to paras [14] and [15] of judgment. Catchwords: WILLS, PROBATE AND ADMINISTRATION - letters of administration - application for letters of administration ad litem - application by brother of deceased for purposes of family provision claim on behalf of daughter of deceased - continuance of medical negligence proceedings in District Court - grant of administration to enable applications to be dealt with - Succession Act 2006 (NSW), s 91 Legislation Cited: Succession Act 2006 Law Reform (Miscellaneous Provisions) Act 1944 District Court Act 1973 Texts Cited: R S Geddes, C C Rowland & P Studdert, Wills, Probate and Administration Law in New South Wales, 1996, LBC Category: Principal judgment Parties: Travis Donald Terry (Plaintiff) Representation: Counsel: Solicitors: Commins Hendriks (Plaintiff) File Number(s): 2012/29446

Judgment 1HIS HONOUR: This application has been referred to me by the Registrar. The deceased died on 10 October 2011 aged 35. The plaintiff is the deceased's brother. According to the plaintiff's affidavit, the deceased was married to one Darrell Johnson, but they separated and have been estranged since approximately 2001. There was one child of the relationship. The plaintiff deposes that he has full-time care of that child. The estate is a small one. The plaintiff does not know the whereabouts of Mr Johnson and is unable to contact him. He believes that the deceased did not leave a will. Pursuant to the intestacy provisions of the Succession Act 2006, Mr Johnson would be entitled to the estate. 2The deceased was a plaintiff in proceedings in the District Court at Wagga Wagga in which she claimed damages for medical negligence. The plaintiff sought the grant for two purposes. First, so as to be able to continue those proceedings, and secondly, because he intends to act as the next friend of the child in relation to a family provision claim. Whether that claim is brought in the District Court or the Supreme Court will presumably depend on the extent of the estate having regard to the success or otherwise of the District Court claim seeking damages. No claim has yet been commenced. 3The plaintiff filed a summons claiming an order that administration of the deceased's estate be granted to him for the purposes only of an application being made under Chapter 3 of the Succession Act 2006 on behalf of the daughter of the deceased. He seeks a grant of letters of administration ad litem of the deceased's estate for that purpose and to continue proceedings between the deceased and the Murrumbidgee Local Area Health Network filed at the District Court at Wagga Wagga. 4I can assume that the cause of action against the Murrumbidgee Local Area Health Network survives the death of the deceased (Law Reform (Miscellaneous Provisions) Act 1944, s 2). 5No application has been made to the District Court for an order under r 7.10 of the Uniform Civil Procedure Rules appointing the plaintiff to represent the estate of the deceased plaintiff in the District Court proceedings. (As to the appropriate form of such an order see Ritchie's Uniform Civil Procedure Rules, at [7.10.15]). On the other hand, there is no reason that this Court cannot make a limited grant where that is necessary for the protection of the estate pending the making of a general grant. The learned authors of Wills, Probate and Administration Law in New South Wales, Geddes, Rowland and Studdert say (at [40.82]) that it is generally preferable that the grantee be the person who is likely to get a general grant eventually. In the present case that is not possible. Moreover, depending upon the outcome of any application for a family provision order, the child might become a beneficiary of the estate. 6I will make the grant of letters of administration ad litem for the purposes of the plaintiff continuing the proceedings commenced by the deceased in the District Court. 7A similar order is sought in respect of proceedings to be commenced by the plaintiff as tutor for the child against the representative of the estate for an order pursuant to s 57 of the Succession Act. No such proceedings have yet been commenced. I infer that the plaintiff is waiting for the outcome of the District Court proceedings. 8However, it is clear that in due course an application for a family provision order will be made. 9Section 91 of the Succession Act repealed the former s 41A of the Probate and Administration Act as from 1 March 2009. Section 41A of the Probate and Administration Act formerly provided: "41A Probate or administration for purpose of Family Provision Act 1982 (1) The Court shall have jurisdiction to grant administration in respect of a deceased person 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, whether or not the deceased person left property in New South Wales. (2) A grant of administration made as referred to in subsection (1) shall be for the purposes only of making an application under the Family Provision Act 1982. (3) The Court may grant administration in respect of a deceased person as referred to in subsection (1) to any person who it is satisfied is an eligible person within the meaning of the Family Provision Act 1982 or to any person who it is satisfied intends to make application under that Act on behalf of such an eligible person." 10It was clear from that section that there was jurisdiction to make such a grant prior to the bringing of proceedings for a family provision order. 11Section 91 of the Succession Act relevantly provides: "91 Grant of probate or administration to enable application to be dealt with (cf WPA 41A) (1) This section applies if an application is made by a person for a family provision order, or notional estate order, in respect of the estate of a deceased person, or deceased transferee, respectively, in relation to which administration has not been granted. (2) The Court may, if it is satisfied that it is proper to do so, grant administration in respect of the estate of the deceased person or deceased transferee to the applicant for the purposes only of permitting the application concerned to be dealt with, whether or not the deceased person or deceased transferee left property in New South Wales." 12Section 91 does not provide for the making of a grant for the purposes of an application for a family provision order before such an application is made. If the deceased's child through her tutor makes an application for a family provision order, then that application can include an application for an order under s 91. The District Court would have jurisdiction to deal with that application to the extent the application is otherwise within the jurisdiction of that Court (District Court Act 1973, s 134(1)(c) and (2)). (Section 91 of the Succession Act is found in Chapter 3.) 13I do not think I should exercise any residual power there may be to make a grant of administration for the purposes of the child's bringing proceedings for provision pursuant to s 57 of the Succession Act. Where Parliament has expressed the intention that such an application be made if an application for a family provision order has been brought, and this is a change of the law, I do not think I should exercise any residual jurisdiction to make a grant of administration. Nor would this be a grant for the purpose of getting in an asset of the estate. There is no prejudice to the plaintiff or the child under his care because the application can be made when and if an application for a family provision order is made. 14For these reasons I order that letters of administration ad litem of the estate of the late Shannan Caroline Terry of [xxx xxxxxxx xxxxxx], Wagga Wagga, NSW 2650 be granted to the plaintiff, Travis Donald Terry, for the purpose of continuing proceedings in the District Court, Wagga Wagga Registry, No. 2009/339849 between the deceased (as plaintiff) and the defendant in those proceedings (Murrumbidgee Local Area Health Network). 15I refer the proceedings to the Registrar to complete the grant. 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. Decision last updated: 14 August 2012