The plaintiffs are beneficiaries of the estate of the late Stanley Henry Kilby, who died in July 1978. The deceased left a will dated 15 December 1967 appointing his brother-in-law, Ronald Caldwell, as the executor of his estate. Probate of the deceased's will was granted to Ronald Caldwell on 9 April 1979.
Ronald Caldwell died in November 2004 before the whole of the deceased's estate was administered. But no one can find Ronald Caldwell's executor, if he ever appointed one. The plaintiffs now seek orders that they, or some other suitable person be appointed as administrators of the deceased's will in place of Ronald Caldwell.
It is appropriate for the Court to make the orders sought. A fuller family history shows the need for the orders. Without intending any disrespect to family members, for convenience, these reasons will use their first names.
[2]
Stanley Henry Kilby, his Children and Grandchildren
The deceased, Stanley Henry Kilby, had two children, Gail and Ross. He was survived by his wife Beryl who died in August 2000.
Ross died in February 2015. He had been married during his lifetime to Michelle Lee Clune. But they were divorced by the time of his death. Ross was also survived by his two daughters, Blaire Louise and Eve Anne, who are the residuary beneficiaries under his will and the administratrices of his estate.
The principal asset of the deceased's estate is a residential property in Taren Point Road, Caringbah ("the Caringbah property"). Under the deceased's 1967 will he gave a life estate in the Caringbah property to his widow Beryl. After her death the house passed to Gail and Ross.
Although the deceased died in 1978, Beryl in 2000 and Ronald Caldwell in 2004, it is only in recent times that family members have become focused on what is to happen to the Caringbah property. Various family members have used and occupied the property since the deceased's death. Beryl occupied the property between 1978 and 2000. Ross lived in the property between 2000 and his death in 2015. Michelle lived in the property for a period until recently. Blaire has lived there since she was 16. Blaire and Eve now occupy the property, pending further administration of the deceased's estate.
Gail, Blaire and Eve are at different stages of life and now obviously have different needs for capital. They wish to have the deceased's estate finally administered. But they have encountered a problem.
The deceased's estate needs an administrator. Ronald Caldwell is still the registered proprietor of the Caringbah property. Title appears to have been transmitted into his name under Real Property Act 1900, s 93 as the executor of the deceased's estate by the solicitor then acting for the estate, Ms Olga. P. Winch at Caringbah. Gail, Eve and Blair have extensively searched for and cannot find Ronald Caldwell's executor, who would have inherited executorship of the deceased's will: Imperial Acts Application Act 1969 (NSW), s 13. Their searches have included inquiries at the Law Society of NSW for information about the successor practice to the practice of Olga Winch, who was struck off the roll of solicitors. Searches of the Court's Probate records show that no one has taken out probate of Ronald Caldwell's estate. No one can be identified as currently standing in the position of executor of the deceased's estate. Gail, Blaire and Eve now seek to remedy this situation.
A will establishing a trust for the term of the life of a person and providing for what should happen to the remainder on death (such as the will of the deceased in this case) may mean that the personal representative acts as a trustee during the lifetime of the beneficiary and returns to become an executor after the life tenant/beneficiary's death: Re Pratt (Deceased) [1964] NSWR 105; (1963) 80 WN (NSW) 1416 per McLelland CJ in Eq at 1422 ("Pratt"). But it may be that the personal representative indeed acts as an executor throughout the whole period: see Burke v Dawes [1938] 8 CA 6; (1938) 59 CLR 1 at 13-4 per Starke J.
It perhaps does not matter here which of these views is correct. After the deceased's wife Beryl died in 2000 executorial duties either revived or continued so the estate could be distributed in accordance with the deceased's will. Notwithstanding that there has been delay of some 16 years, during which various persons have continued to occupy the property, those executorial duties must now be performed. The Caringbah property needs to be transferred into the name of someone who can be charged with authority to realise it in accordance with the will of the deceased.
I am satisfied that all necessary and reasonable attempts to find the executor or administrator of Ronald Caldwell's estate have failed and that no executor of the deceased's estate can be identified.
The relevant law is clear. The Court has broad power to appoint an administrator in circumstances such as the present under Probate and Administration Act 1898 and in its inherent jurisdiction.
Young J pointed out in Firns v Firns [2000] NSWSC 396 ("Firns") at 12, that the Probate and Administration Act, ss 33 and 40 confers broad jurisdiction on the Court to appoint administrators. Probate and Administration Act, s 33 gives statutory force to the Court's inherent jurisdiction before the enactment of that legislation. Section 40 gives general jurisdiction for the grant of letters of administration in respect of the estate of any deceased person leaving real or personal property in New South Wales. It is not necessary to bring the circumstances within the particular powers to granted letters of administration under ss 63, 74 and 75 of the Act. As Young J pointed out in Firns "the way in which the Act has been construed over the years is that unless there has been a statutory taking away of jurisdiction the Court plainly has power to grant administration whenever it considers it appropriate to do so": see Hamilton v Hamilton (1913) 33 WN (NSW) 46. This is one of those cases that does not clearly fall within the words of ss 69, 74 or 75.
The failure of the plaintiffs to find Ronald Caldwell's executor grounds the Court's jurisdiction to grant letters of administration de bonis non. Were such an executor to be found, that executor would have the interest vested in Ronald Caldwell by the probate of the will of the testator, without the need for a fresh grant of the original will; the original probate is kept alive by the grant of probate of the will of the executor: Wangford v Wangford (1704) 1 Salk. 299. This principle is ancient and the subject of an enactment as early as 1337 during the reign of Edward III: 25 Edward III, St 5, c5, which is substantially re-enacted in New South Wales in the Imperial Acts Application Act 1969, s 13:
"Executor of executor represents original testator
13 Executor of executor represents original testator
(1) An executor of a sole or last surviving executor of a testator is the executor of that testator.
This provision shall not apply to an executor who does not prove the will of his testator and, in the case of an executor who on his death leaves surviving him some other executor of his testator who afterwards proves the will of that testator, it shall cease to apply on such probate being granted.
(2) So long as the chain of such representation is unbroken, the last executor in the chain is the executor of every preceding testator.
(3) The chain of such representation is broken by:
(a) an intestacy,
(b) the failure of a testator to appoint an executor, or
(c) the failure to obtain probate of a will,
but is not broken by a temporary grant of administration if probate is subsequently granted.
(4) Every person in the chain of representation to a testator:
(a) has the same rights in respect of the estate of that testator as the original executor would have had if living, and
(b) is, to the extent to which the estate of that testator has come to his hands answerable as if he were an original executor."
Prior to the enactment of the Imperial Acts Application Act 1969 the principle of the chain of representation was based upon longstanding recognition of the common law and practice of the Probate Court. This recognition and practice have been explained by Griffith CJ in Maddock v Registrar of Titles (Vic); Miller v Registrar of Titles (Vic) (1915) 19 CLR 681 ("Maddock"), at 688-9 and Barton J in Drummond v Registrar of Probates (SA) (1918) 25 CLR 318 at 321; [1918] HCA 58. In Darrington v Caldbeck (1990) 20 NSWLR 212 ("Darrington") Young J extensively reviewed the earlier authorities and explained some changes to the principle of the chain of representation made when the Imperial Acts Application Act was enacted.
The principle has its origins in the idea that the power of the executor is founded upon the special confidence of actual appointment of the deceased and such executor is therefore allowed to transmit that power to another in whom that executor has equal confidence: J R Martyn and N Caddick QC, Williams, Mortimer & Sunnucks on Executors, Administrators and Probate (20th ed 2013, Sweet & Maxwell) at 108-9 and Maddock at 688. But if the chain of representation is broken, an administrator de bonis non of the original testator must be appointed by the Court: In the Goods of William Bridger (1878) 4 PD 77. The grant is made where the executor or administrator has died prior to completing administration of the estate. It may be made where the executor has disappeared or is believed to be dead: In the Estate of French [1910] P 169. But if the office of a personal representative who dies devolves upon his own personal representative, the occasion for a grant of administration de bonis non will not arise, because there is no break in the chain of representation: In the Will and Codicil of Robert De Little [1883] 9 VLR (IP & M) 32; K Mason and L G Handler, Succession Law and Practice NSW (1985, Butterworths), [1181.4.3].
Here the chain of representation is broken, as no executor can be identified. The Court's jurisdiction to make a grant of letters of administration de bonis non is therefore enlivened. If the estate is fully administered the Court has no power to grant an application for administration de bonis non but must appoint a new trustee under Trustee Act 1925, s 6: see G Weir, "Administration de bonis non" (1936) 10 ALJ 13. But that is not the case here.
Once a grant of letters of administration de bonis non is made, the remaining unadministered estate is, upon the grant, vested as from the death of the executor in the person to whom the grant is made: Conveyancing Act 1919, s 32(1).
The plaintiff also submitted that it may be open to the Court to appoint a trustee pursuant to Trustee Act 1925 (NSW), s 70 or alternatively pursuant to the court's inherent jurisdiction to see that trusts are properly executed: Letterstedt v Broers [1884] App Cas 371 and Crowle Foundation v NSW Trustee and Guardian [2010] NSWSC 647 at [41]. But authority is sufficiently clear that here there are executorial duties to be performed at this time in this estate and therefore there is power to appoint an administrator.
Should the plaintiffs be appointed as administrators? Ordinarily the Court will appoint an administrator who is entitled to the property of the deceased and as between a number of persons so entitled the grant follows the majority of the interest: In the Estate of Slattery (1909) 9 SR (NSW) 577. Such an appointment means that substantial financial interests in the outcome of administration assist in promoting the quick and efficient administration of the estate. Each of the three plaintiffs here fully account for all entitlements in the deceased's estate. Gail already has obtained custody of the Certificate of Title to the Caringbah property.
The plaintiffs should be appointed. Notwithstanding the Court's orders, other documents will need to filed to perfect the grant of administration to comply with the rules of Court. The orders below contemplate that the proceedings will be remitted to the Registrar for the purpose of perfecting the grant in accordance with the Rules of Court.
A footnote to this judgment should be recorded. In 1990 Young J suggested in Darrington a practical piece of law reform that has still not occurred. His Honour proposed for consideration (at [215C-D]) that s 13 be removed from the Imperial Acts Application Act and inserted in an appropriate place in what is now the Probate and Administration Act. This is what his Honour then said:
"Executors by representation these days are covered by the Imperial Acts Application Act 1969, s 13. This is unfortunate because nobody, it would appear, was aware of the existence of this section until the opening of the appeal. This is understandable because one would not normally think of looking for a section involving wills in such legislation. It would be an easy but useful piece of law reform to remove s 13 from the Imperials Acts Application Act and insert it in the appropriate place in the Wills Probate and Administration Act so that it is not overlooked in future."
Notwithstanding the substantial re-organisation of the Probate and Administration Act and the passing of the Succession Act since 1990, it is curious that s 13 is still found in the Imperial Acts Application Act. In this case in her carefully prepared submissions Ms Judge of counsel referred the Court to s 13. But the risk to which Young J adverted in Darrington still exists: the provision may be overlooked by parties, if it is not placed appropriately within the Probate and Administration Act. I again commend Young J's 1990 proposal to this State's law reformers.
[3]
Conclusion and Orders
For the reasons given the Court is satisfied that the plaintiffs should be appointed administrators of the estate of the late Stanley Henry Kilby. It is appropriate on such a necessary application for the plaintiffs to be indemnified for the costs of this application out of the estate.
Accordingly, the Court makes the following orders and directions:
1. Order that Eve Anne Kilby of [address not published], Blaire Louise Kilby of [address not published] and Gail Jensen of [address not published], be appointed administrators of the will of the late Stanley Henry Kilby in place of Ronald Caldwell, deceased.
2. Order that the land [address not published], at Caringbah and all the property and assets subject to the trusts of the will of the late Stanley Henry Kilby do vest in the plaintiffs upon the trusts of the said will as far as they now exist and are capable of taking effect.
3. Order that service of the Summons on the executor named in the will of the late Stanley Henry Kilby, deceased be dispensed with.
4. Order that the plaintiffs' costs on the indemnity basis be paid out of the estate of the late Stanley Henry Kilby, deceased.
5. Direct the file be remitted to the Registrar for completion of the grant of administration in accordance with the Rules of Court.
6. Grant liberty to apply.in the event that any further filing fees in respect of the grant of administration are proposed to be charged.
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Decision last updated: 07 October 2016