Supreme Court New South Wales Medium Neutral Citation: Estate de Wild, deceased [2019] NSWSC 1128 Hearing dates: 19 August 2019 Date of orders: 02 September 2019 Decision date: 02 September 2019 Jurisdiction: Equity - Probate List Before: Lindsay J Decision: ORDER, inter alia, that letters of administration of the estate of the deceased, to be administered as an intestate estate, be granted to the plaintiff as attorney- under-power of the next of kin (spouse) of the deceased, who is absent from the jurisdiction and living in New Zealand, limited until the absent next of kin applies for and obtains a grant of administration in his own name. Catchwords: SUCCESSION — Wills, probate and administration — Intestate estate — Grant of administration — Applicant residing outside of New South Wales — Administration granted to attorney Legislation Cited: New South Wales Act, 1823 (Imp) Probate and Administration Act 1898 NSW Succession Act 2006 NSW Supreme Court Act 1970 NSW The Third Charter of Justice Cases Cited: Bates v Messner (1967) 67 SR (NSW) 187 Bath v British and Malayan Trustees Ltd [1969] 2 NSWR 114 Estate of Kruttshnitt (deceased) (1941) 42 SR (NSW) 79 In the Goods of William Loveday [1900] P154 McCooe as Administrator of the Estate of Michael Lawrence Molloy v Pande [2017] NSWSC 219 Perpetual Trustee Company Ltd v Satchell (1939) 39 SR (NSW) 335 Re AAA [2016] NSWSC 805 The Goods of James Blackwood (1881) 2 LR (NSW) Eq, 83 The Will of Jane Thomas (1884) 1 WN (NSW) 89 Texts Cited: Mason and Handler, Succession Law and Practice (NSW) (Lexis Nexis, Australia, Loose Leaf Service) RS Geddes, CJ Rowland and P Studdert Wills, Probate and Administration Law in NSW (LBC Information Services, Sydney, 1996) Category: Principal judgment Parties: Plaintiff: Anthony James Fondacaro as Attorney for Hermanus de Wild Defendant: Ian Anthony Prohm Representation: Counsel: Plaintiff: R Bianchi Defendant: Mentioned by R Bianchi Solicitors: Plaintiff: Anthony James Fondacaro, Legacies, Wills and Estates Defendant: Williams Woolf & Zuur File Number(s): 2018/00264524 Judgment 1. Irene Anne de Wild ("the deceased"), also known as Irene Anne Elizabeth de Wild, died in Milton Ulladulla Hospital, on the South Coast of New South Wales, on 26 September 2017, aged 74 years, leaving an estate in New South Wales (the proceeds of bank accounts) with an estimated value of about $118,000. 2. The deceased was married only once. She was survived by her husband, Hermanus de Wild ("the Applicant"), but she died without issue. 3. To the best of the knowledge, information and belief of the Applicant, the deceased died intestate. However, in his preparations for an application for a grant of administration, he discovered that the deceased purportedly made a will dated 19 September 2017 (as she lay dying in hospital) which, although it made some provision for him, favoured the deceased's brother, the defendant in these proceedings. 4. Upon an application of the rules of intestacy for which Chapter 4 of the Succession Act 2006 NSW provides, the whole of the deceased's estate would pass to the Applicant as her widower: sections 104, 110 and 111. 5. The Applicant's solicitor (Mr AJ Fondacaro) conducted an investigation of the circumstances in which the purported will was executed, making inquiries of an attesting witness and procuring the Hospital's clinical notes for examination. 6. The outcome of that investigation was to demonstrate, objectively, that the deceased was unlikely to have had testamentary capacity at the time she executed the purported will, and she was as equally unlikely to have known and approved of the contents of the purported will. 7. The defendant, as the only person other than the Applicant to benefit under the purported will, has formally acknowledged that the will was invalid, and consented to a grant of administration being made as now sought in these proceedings, essentially in favour of the interests of the Applicant. 8. On 5 January 2018 the Applicant published a formal notice of his intention to apply for letters of administration of the deceased's estate. 9. On 11 July 2019 (as plaintiff) he filed a summons in which he sought: 1. an order that letters of administration be granted to him, as the spouse of the deceased, for administration of her estate as an intestate estate; and 2. an order that the purported will of the deceased dated 19 September 2017 be passed over, and declared invalid on the basis that the deceased lacked testamentary capacity to execute the will and/or because she did not know and approve of the contents of the will. 1. By an email dated 22 July 2019 a Senior Deputy Registrar of the Court addressed a requisition to the parties to the effect that, according to established practice: 1. as the Applicant (named in the summons as plaintiff) was resident outside New South Wales (in New Zealand), the Registry was unable to grant letters of administration to him. 2. the Applicant was required to appoint an attorney in NSW to whom (by reference, for example, to section 72 of the Probate and Administration Act 1898 NSW) the Registry could, upon the Attorney's application, grant letters of administration. 3. the Applicant's summons should be amended to record the attorney as the plaintiff (in his capacity as attorney for the Applicant); the attorney-plaintiff should publish a notice of his intention to apply for a grant of administration; and the Applicant's grant of a power of attorney to the attorney-plaintiff should be produced to the Court as evidence of the attorney's authority to apply for a grant of administration on behalf of the Applicant. 1. In response to this requisition, and in anticipation of orders being made to give effect to his response, the Applicant filed: 1. an amended summons dated 6 August 2019 in which: (i) the "plaintiff" is described as "Anthony James Fondacaro as attorney for Hermanus de Wild"; and (ii) the application for a grant of administration seeks an order to the effect "that letters of administration of the Estate [of the Deceased] be granted to the plaintiff in his capacity as attorney for the spouse of the deceased who is living outside the jurisdiction, the deceased having died intestate"; and 2. an affidavit affirmed by Mr Fondacaro on 6 August 2019, deposing to his publication on the NSW Online Registry of notice of his intended application for letters of administration as an attorney, and annexing a copy of an "enduring power of attorney" executed in his favour by the Applicant on 1 August 2019. 1. The power of attorney executed by the applicant in favour of Mr Fondacaro is expressed to be "limited to authorising and directing my attorney to act on my behalf in respect of the estate of my late wife, Irene Anne de Wild (the 'estate'), including, but not limited to, obtaining a grant of letters of administration of the estate, conducting legal proceedings on my behalf in respect of the estate and completing the administration of the estate". 2. The proceedings having been referred to me as Probate List Judge because of the application to pass over the purported Will dated 19 September 2017, the course of the proceedings came to my attention. 3. I am informed by the Registry that, since time immemorial: (a) the ordinary practice of the Registry is to insist that an application for administration of an intestate estate be made by a person resident in NSW; (b) where the person who would be entitled to a grant of administration of the estate (if resident in NSW) is resident outside the State, he or she is invited to appoint an attorney to apply under section 72 of the Probate and Administration Act 1898 for a grant of administration on his or her behalf; and (c) by way of a contrast, a grant of probate of a will to an executor named in the will can be, and routinely is, made notwithstanding that the executor resides outside the State. 4. The jurisdiction of the Supreme Court of NSW to grant probate to "an absent executor" was established in the 19th century. The Full Court (constituted by Martin CJ and Manning J) held, in The Goods of James Blackwood (1881) 2 LR (NSW) Eq 83, that (by virtue of clause 14 of the Charter of Justice, to which reference will hereafter be made) the Court has a general power to grant probate, including a power to grant probate to an executor resident out of the jurisdiction. 5. The pathway to recognition of a jurisdiction of the same width to grant administration to an "absent administrator" is not as well marked, but it is there to be found. 6. The justification for dealing differently with intestate and testate estates is thought to lie in respect for a testator's choice of an executor. A testator is, prima facie, "entitled" to choose his or her executor, wherever resident. 7. A testator's "entitlement" to have a non-resident executor granted probate of his or her will is not absolute. In a particular case, necessity or convenience of administration of an estate governed by a will might require that the estate be administered by a local resident: Bath v British and Malayan Trustees Ltd [1969] 2 NSWR 114 at 120-121; (1969) 90 WN (Pt 1) (NSW) 44 at 51-53. 8. The Court generally prefers to have estates administered by somebody who is present in the jurisdiction, able personally to attend to his or her duties within the jurisdiction and, by reason of his or her presence in the jurisdiction, amenable to court orders designed to enforce obligations attending a grant of probate or administration. 9. The probate jurisdiction of the Court as now constituted (including jurisdiction to grant letters of administration) can be traced back to clauses 14-17 of Letters Patent dated 13 October 1823 (now known as "The Third Charter of Justice) issued pursuant to the Imperial Statute for Geo IV c 96, colloquially known as the New South Wales Act, 1823 (Imp), section 10 of which authorised establishment of the Court as a court of "ecclesiastical" (that is, probate) jurisdiction. The continuity of that jurisdiction is evidenced both by section 33 of the Probate and Administration Act and section 22 of the Supreme Court Act 1970 NSW. 10. The Third Charter of Justice speaks of grants of administration being made by the Court in terms which might be read as suggestive of a residential qualification for a grantee but which, read in historical context, may be no more than a reflection of the geographical constraints of an isolated, 19th century colony. 11. For practical purposes, it is not necessary to trace the Court's probate jurisdiction to the time of the Court's establishment or to dwell on the terms of the Third Charter of Justice. Section 40 of the Probate and Administration Act provides that "[the] Court shall have jurisdiction to grant probate of the will or administration of the estate of any deceased person leaving property, whether real or personal, in New South Wales". Section 23 of the Supreme Court Act 1970 provides that "[the] Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales", the width of which provision is confirmed by its legislative history, explained in Re AAA [2016] NSWSC 805 at [22]-[27]. 12. Section 97 of the Probate and Administration Act is predicated upon an assumption that the Court has jurisdiction to make a grant of probate or administration in favour of a grantee resident outside NSW (with emphasis added): "97 EVERY EXECUTOR ETC TO BE DEEMED RESIDENT IN NEW SOUTH WALES (1) Every executor or administrator: (a) named in any probate or letters of administration granted by any court of competent jurisdiction in any portion of Her Majesty's dominions and making application under the provisions of Division 5 for the sealing of such probate or administration, or (b) appointed under this Part, shall be deemed to be resident in New South Wales. (2) Where not actually so resident, the executor or administrator shall, before the issue or sealing of any probate or administration, file with the Registrar an address, as prescribed by the rules, within New South Wales, at which notices and processes may be served upon the executor or administrator; and all services at such registered address shall be deemed personal service." 1. This section ensures that a non-resident executor or administrator is amenable to court process issued in NSW by a person who has a claim against an estate, without an independent requirement to establish a connection with the State to ground jurisdiction in a NSW court. 2. As contemplated by the section, the Supreme Court does have power to make grants to persons actually resident outside the jurisdiction: Mason and Handler, Succession Law and Practice (NSW) (Lexis Nexis, Australia, Loose Leaf Service), paragraph [1489.1]. Absence from the jurisdiction may result in a person being passed over (Mason and Handler, paragraph [1333.10]), but the jurisdiction to make a grant in favour of an absent administrator is thus accepted by an authoritative practice text. 3. Confirmation of that can be found in RS Geddes, CJ Rowland and P Studdert, in Wills, Probate and Administration Law in NSW (LBC Information Services, Sydney, 1996) at page 617 n29. The learned authors there summarise the position thus: "A Grant may be made to an absent executor but the Court is reluctant to appoint an absentee as administrator". 4. The reason for this reluctance is not a concern about a want of jurisdiction to make a grant, but a concern about the practical amenability of an absent administrator (or, no less, an absent executor) to enforcement proceedings should a claim be made against the administrator / executor or against an estate during the course of administration of the estate. 5. The Probate and Administration Act contains a number of specific provisions to which reference can be made in connection with administration of an estate in NSW for the benefit of a person resident outside the State: in particular, sections 63, 72 and 74. They do not constrain the jurisdiction of the Court for which section 40 of the Act, in particular, provides; but they do point in the direction of the Registry's established practice when articulating criteria for the appointment of an administrator in particular circumstances. 6. Omitting an obsolete provision in section 72(1), those sections are presently in the following terms (with emphasis added): "63 TO WHOM ADMINISTRATION MAY BE GRANTED The Court may grant administration of the estate of an intestate person to the following persons, not being minors, that is to say to: (a) the spouse of the deceased, or (b) one or more of the next of kin, or (c) the spouse conjointly with one or more of the next of kin, or if there be no such person or no such person within the jurisdiction: (i) who is, of the opinion of the Court, fit to be so trusted, or (ii) who, upon being required in accordance with the rules, or as the Court may direct, to apply for administration, complies with the requirement or direction, then to: (d) any person, whether a creditor or not of the deceased, that the Court thinks fit. … 72 ADMINISTRATION TO BE GRANTED TO ATTORNEY IN CERTAIN CASES (1) When any person named as executor, or any spouse or the next of kin entitled to probate or administration is out of the jurisdiction …, but has some other person within the jurisdiction appointed under power of attorney to act for the person, administration may be granted to such attorney, but on behalf of the person entitled thereto, and on such terms and conditions as the Court thinks fit. (2) A grant of administration under this section shall continue in force notwithstanding the death of the donor of the power, unless the grant in terms provides that it shall determine on such event. … 74 POWER AS TO APPOINTMENT OF ADMINISTRATOR The Court may, in any case where a person dies: (a) intestate, or (b) leaving a will, but without having appointed an executor thereof, or (c) leaving a will and having appointed an executor thereof, where such executor: (i) is not willing and competent to take probate, or (ii) is resident out of New South Wales, if it thinks it necessary or convenient, appoint some person to be the administrator of the estate of the deceased or of any part thereof, upon the appointed person giving such security (if any) as the Court directs, and every such administration may be limited as the Court thinks fit. 1. In Estate of Kruttshnitt (deceased) (1941) 42 SR (NSW) 79 at 81, Nicholas CJ in Eq made a grant in favour of an absentee administrator (subject to provision of local sureties) pursuant to section 63(d), there being no person within the jurisdiction who came within the classes described in section 63(a), (b) or (c). 2. Provided there is property in NSW to be administered, and therefore to ground a grant, there is no jurisdictional impediment to a grant of probate or administration being made to a person resident outside the State. Like a requirement that security be provided as a condition of a grant, a requirement that a grant be made to a person resident in the State is a means of protection for those who are, or may be, beneficiaries or creditors of a deceased estate. If a grant is made without security, to a person beyond the Court's jurisdiction, the Court's capacity to enforce the due administration of an estate is to that extent diminished. 3. In an exceptional case where, as in the present proceedings, the Court is satisfied that the only person beneficially entitled to an estate is the person by whom, or on whose behalf, an application is made for administration, the necessity for a local administrator or provision for security may fall way. The present proceedings might be thought to illustrate that point because of the small size of the estate and the proximity of the Applicant in New Zealand (not quite a foreign country), not beyond reach by Australian court process in the ordinary course. 4. That said, even in such a case the Court might be reluctant to make a grant in favour of an absentee applicant unless satisfied that the estate has no local debts. 5. The possibility of local debt, and the difficulties of enforcing it against an absent executor, were mentioned as a discretionary reason for refusing a grant of probate to a non-resident executor in The Goods of James Blackwood (1881) 2 LR (NSW) Eq, 83 at 86, an observation echoed in The Will of Jane Thomas (1884) 1 WN (NSW) 89. In much the same spirit, in Estate of Kruttschnitt the Court required security even though the evidence before the Court was that the estate had no debts in NSW. 6. Steps having been taken to restructure the Applicant's personal application for a grant of administration to one made on his behalf by his NSW solicitor acting as his attorney pursuant to section 72 of the Probate and Administration Act, it is expedient to give effect to the restructured application. 7. In the course of doing so, I make the following points: 1. Prudence dictates that, save in exceptional circumstances, the Court's established practice of requiring an application for administration of an intestate estate to be made by a person resident in NSW be followed. 2. That practice, and any departure from it, is governed by the purpose for which the Court's Probate jurisdiction exists. The jurisdiction looks to the due and proper administration of a particular deceased estate, having regard to any duly expressed testamentary intention of the deceased, and the respective interests of parties beneficially entitled to the estate. The task of the Court is to carry out a deceased person's testamentary intentions, and to see that beneficiaries get what is due to them: In the Goods of William Loveday [1900] P154 at 156; Bates v Messner (1967) 67 SR (NSW) 187 at 189 and 191-192. 3. The administrator of an estate is an officer of the Court and not the holder of a mere authority, even if the grant is made to the administrator as an attorney for a principal; the attorney is responsible to the Court and, subject to any terms imposed on his or her appointment by the Court, he or she enjoys all the powers of the legal personal representative unless and until the grant of administration has been revoked or determined: Perpetual Trustee Company Ltd v Satchell (1939) 39 SR (NSW) 335 at 342 and 345; McCooe as Administrator of the Estate of Michael Lawrence Molloy v Pande [2017] NSWSC 219 at [34] – [38]. 4. Although the traditional form of a grant of administration made to an attorney is a grant "for the use and benefit of [the principal] and until he should apply for, and obtain, administration of the estate", the formulaic expression "for the use and benefit of" the principal is not an essential feature of a grant to an attorney. Sufficient to the day that the grantee's status as an attorney is manifest. 1. For these reasons, on the application of the parties jointly, I make notations and orders to the following effect: 1. NOTE that these proceedings concern the estate of Irene Anne de Wild ("the deceased"), also known as Irene Anne Elizabeth de Wild, who died at Milton, in the state of NSW, on 26 September 2017. 2. NOTE the summons filed 11 July 2019 naming Hermanus de Wild (the widower of the deceased) as plaintiff. 3. NOTE the requisition dated 22 July 2019 addressed by the Court to Anthony James Fondacaro as solicitor for the plaintiff named in the summons (Hermanus de Wild) noting that, as Hermanus de Wild is absent from the jurisdiction and living in New Zealand, the practice of the Court is that any application made by him would need to be made by way of an application by an attorney (present in New South Wales) on his behalf. 4. ORDER that "Anthony James Fondacaro as attorney for Hermanus de Wild" be substituted as plaintiff in lieu of "Hermanus de Wild". 5. ORDER that the plaintiff (Anthony James Fondacaro as attorney for the Hermanus de Wild) be granted leave to amend the summons in accordance with the document styled "summons" and dated 6 August 2019. 6. ORDER that the plaintiff be granted leave to file the amended summons in court. 7. ORDER that any requirement for further service of the amended summons be dispensed with. 8. NOTE the following evidence in support of the amended summons: 1. affidavit of Anthony James Fondacaro affirmed 6 August 2019. 2. affidavit of Hermanus de Wild (comprising 17 paragraphs) sworn 25 January 2019. 3. affidavit of Hermanus de Wild (comprising 12 paragraphs) sworn 25 January 2019. 4. affidavit of Anthony James Fondacaro affirmed 29 May 2019. 5. affidavit of Hermanus de Wild sworn 1 August 2019. 6. "consent to administration" signed by Ian Anthony Prohm (the defendant), verified by affidavit of George Alexander Zuur (solicitor for the defendant) sworn 16 August 2019. 1. NOTE the written submissions dated 29 May 2019 prepared by Anthony James Fondacaro in support of the amended summons (marked for identification as MFI P1). 2. NOTE the draft "consent order" dated 1 August 2019 signed by Anthony James Fondacaro as the plaintiff and George Alexander Zuur as solicitor for the defendant (marked for identification as MFI P2). 3. DECLARE that the will dated 19 September 2017 purportedly made by Irene Anne de Wild ("the deceased"), a copy of which is an Annexure "B" to the affidavit of Hermanus de Wild (comprising 17 paragraphs), is and was at all times invalid. 4. ORDER that letters of administration of the estate of the deceased, to be administered as an intestate estate, be granted to the plaintiff as attorney-under-power of Hermanus de Wild (the next of kin, as spouse, of the deceased), who is absent from the jurisdiction and living in New Zealand, limited until the absent next of kin applies for and obtains a grant of administration in his own name. 5. ORDER that the proceedings be referred to the Registrar to complete the grant. 6. ORDER that any requirement for an administration bond or further compliance with the Probate Rules be dispensed with. 7. ORDER that the costs of the proceedings be paid out of the estate of the deceased on the indemnity basis. 8. ORDER that these orders be entered forthwith. ********** Amendments 03 September 2019 - . 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: 03 September 2019