The Estate of Edith Macdougall [2013] NSWSC 990

Supreme Court New South Wales

Medium Neutral Citation: The Estate of Edith Macdougall [2013] NSWSC 990 Hearing dates: 12/07/2013 Decision date: 12 July 2013 Jurisdiction: Equity Division Before: McDougall J Decision: Special letters of administration granted. Ancillary orders made. Catchwords: WILLS & ESTATES - letters of administration - application for special letters of administration - where deceased required to be replaced as director of corporate trustee of SMSF within 4 days - where SMSF otherwise non-compliant - where prospective contestant of will consents to orders sought Legislation Cited: Superannuation Industry (Supervision) Act 1993 (Cth) Category: Principal judgment Parties: Peter Allan Rowlands Clinch (Plaintiff) Representation: Counsel: ARA Kuklik (Plaintiff) Solicitors: Clinch Long Letherbarrow (Plaintiff) File Number(s): 2013/198006

Judgment (ex tempore - revised 12 july 2013) 1HIS HONOUR: This is an application for special letters of administration of the estate of the late Edith Macdougall (the deceased). The deceased died on 16 January 2013. 2On the evidence so far, the deceased may have made at least two wills. One will was made on 19 September 2007. Under that will, the substantial beneficiary was her husband. 3The deceased also made a will (or a document purporting to be a will) on 25 July 2012. Under that will, her husband receives a life interest in certain real estate, but otherwise is not a substantial beneficiary. 4It seems that the husband wishes to challenge the later will on the ground that the deceased lacked testamentary capacity when she made it. 5In the ordinary way that issue would be fought out in an application for probate of the later will. However, there is a feature of urgency in this case. 6The deceased and her husband were members of a self managed superannuation fund. That fund has substantial assets. If the fund is to remain a "compliant" fund for the purposes of the Superannuation Industry (Supervision) Act 1993 (Cth), the deceased (who was a director of its trustee) must be replaced as such director within six months of the date of her death. That means that the replacement must be effected by 16 July 2013. 7The plaintiff is a member of the firm of solicitors appointed by the deceased to be, or to provide, the executor and trustee of her later will. He has been nominated by the firm to seek the order in this case. 8The deceased's husband, who wishes to challenge the later will, consents to the order for special letters of administration being made. 9That is sensible, because if the orders are not made and the superannuation fund becomes non-compliant, there will be a tax bill of the order of $4.4 million potentially exigible. It is in the interests of no one except the Revenue for that to happen. 10In the circumstances, where the person principally affected consents to the orders sought, it seems to me eminently sensible to grant the orders so that the assets of the estate may be protected, and so that the very significant consequences to which I have referred do not follow simply because, as a result of the dispute or possible dispute, there is no one in a position to take over the deceased's directorship of the trustee company. 11In the same circumstances, it is sensible to do as is requested and dispense with an administration bond and surety. 12I make orders in accordance with paras 1 to 4 as amended of the form of order initialled by me and dated today's date. 13I order that the notice of application published on 28 June 2013 stand as sufficient notice for the purposes of this application and that further notice be dispensed with. 14I direct that these orders be entered forthwith.