Koerstz v Norman

Charlton v Hindmarsh (1860) 1 SW & Tr 519; 164 ER 840 Guardian Trust and Executors Company of New Zealand Ltd v Public Trustee of New Zealand [1942] AC 115 Re Campbell [1948] NZLR 510 Re Cope (1880) 16 Ch D 49 CASES CITED : Re Falconer [1958] QWN 42 Re Gwynne (1988) 48 SASR 209 Re Lemme [1892] P 89 Re Levy [1953] VLR 652 Re Von Linden [1896] P 148 Taylor v Waters, Powell J, 19.6.1992, unreported

Clive Ashton Koerstz (P1) PARTIES : Dulcie Joan Koerstz (P2) Anne Christina Norman (D)

COUNSEL : G Segal (P) G W McGrath (D)

SOLICITORS : Cropper Parkhill (P) Finlaysons (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2868/06 - KOERSTZ v NORMAN JUDGMENT 1 HIS HONOUR: These proceedings involve a family dispute over the property of the late Christian Koerstz. 2 The proceedings were settled in principle on the first day that they were set down for hearing. 3 However, before the settlement can be processed, the representation of the estate of Mr Koerstz's widow Jean, needs to be finalised. 4 The evidence, both in this Court and in the application for probate in the Probate List, was that Jean left a will in which she appointed her husband as her executor and left her property to her three daughters equally. 5 The evidence is that Jean's house was cleaned by her daughters after her death. It was not thought that Jean had left any property, and one of the daughters found the will, tore it up and threw it out with other papers. However, there is a photocopy of the will with all the signatures on it dated 7 September 1984 still in existence. 6 Very shortly before this case was heard, one of the daughters made an application for letters of administration with the will annexed. Letters of administration were granted, but only a limited grant which bore the words "Limited until the original will is proved". The grant was made on 25 January 2008. When the settlement was announced, I was rather surprised that a limited grant had issued and was concerned that there might be some doubt as to how the estate of Jean was to be distributed. I thought that there must be some doubt as to whether the will, the subject of the limited grant, was the actual last will of the deceased. 7 The practice of making the sort of grant made in the instant case appears to stem from the principles considered by Powell J in Taylor v Waters, 19 June 1992, unreported. The vital extract from the judgment is reproduced in Geddes Rowland and Studdert, Wills Probate & Administration Law in New South Wales at p 288. His Honour there said that if there was a lost will or a will that was known to have been destroyed, the English practice was to limit the grant, until the original or a more authentic copy be proved and he thought that that was a practice which might conveniently be adopted in this State. 8 With respect, where the facts are proved (as they have been in this case) that the original will was destroyed by a person other than the testator after death, it will never be able to be proved. There is no barrier to proving a will by a copy with evidence that the original has been lost and in such a situation, I cannot see why the court should not just grant probate or letters of administration with the will annexed as the case may be. 9 In Certoma, The Law of Succession in New South Wales (3rd ed) at p 272, the learned author says: "Where a will whose existence is known, as distinct from one whose existence is unknown and therefore presumed revoked by destruction, and either lost or cannot be produced because it is held by a foreign court or official, a grant will be made until the original or more authentic copy of the will can be brought into the registry."

That statement as the footnotes show, is based on the old English decisions of Re Lemme [1892] P 89 and Re Von Linden [1896] P 148. However, both of those were cases where the original will was in France and could not be brought into the registry in England. There was no doubt as to the text of the will. Another case in the same plight is one referred to in the Probate Practice at p 387, namely, Re Falconer [1958] QWN 42 where the original will had been granted probate in Michigan the State of the domicile. 10 The case is similar to Re Gwynne (1988) 48 SASR 209 where the South Australian Supreme Court granted probate of a document which appeared to be the duplicate original of the will, a copy signed by the testator with the names and addresses of the witnesses written in by the solicitor's clerk. The present document goes one better. 11 One can understand those cases, and one can understand cases like Re Campbell [1948] NZLR 510 also referred to in the Probate Practice, where secondary evidence was given of a lost will. However, where the facts clearly are that the last will of the testatrix has been destroyed after her death and a fair photostat copy with signatures is produced to the registry, in my view the proper practice is to make an unlimited grant. 12 As White J said in Re Gwynne at 216, the "limitation does not invalidate the grant. It merely leaves the door open in case the original is discovered." Where there is no realistic possibility of the original will being produced, there is nothing to be gained through making a limited grant. 13 When this limited grant was first brought to my attention, I had two disturbing thoughts. 14 The first was that whilst the Wills, Probate and Administration Act 1898 seems to make some provision for the powers of an administrator under a limited grant durante minore aetate ("dma"), there does not appear to be any corresponding provision with respect to other limited grants. Furthermore, s 70 in practice leads to an administration bond with conditions (see Mason and Handler, Succession Law and Practice NSW [1361.2]), whereas it would not appear that the present limited grant explicitly involves any conditions. 15 On the other hand, s 40D of the Act would appear to protect the administrator in case anything occurred which would cause the grant to be revoked. Furthermore, the general rule is as laid down by Jessel MR in Re Cope (1880) 16 Ch D 49, 52 (although said with specific reference to administration dma): "He is an ordinary administrator: he is appointed for the very purpose of getting in the estate, paying the debts, and selling the estate in the usual way; and the property vests in him."

There are some situations where a limited administrator has no power to distribute such as an administrator pendente lite, but even here the administrator has all the other powers of an administrator (see Charlton v Hindmarsh (1860) 1 Sw & Tr 519, 520; 164 ER 840, 841). 16 My second thought was that, accepting what I have just said, how can the administrator distribute without indemnity because there is always the possibility of another will being proved? However, this thought too is answered by what I have just said, namely that the administrator is an ordinary administrator; there would not appear to be any restrictions on distribution and if a later will is found, then s 40D will protect the administrator. 17 However, any executor or administrator, having obtained a grant, if he or she ascertains facts which may lead to a revocation of the grant, must take the appropriate action or may suffer personal liability: see Re Levy [1953] VLR 652, 654 and see Guardian Trust and Executors Company of New Zealand Ltd v Public Trustee of New Zealand [1942] AC 115 (PC). 18 In cases where there is probate granted of a copy of a will and the original is found, it would be the duty of the administrator to apply for cessate probate. 19 Accordingly, it would be the duty of the administrator to apply for an unlimited grant of probate should she find the original will and query also if there was a clear case that any application for an unlimited grant of a lost will would succeed. It may be that for the future where there is a mislaid will or a case where probate is granted of a statement by reliable witnesses who have seen the original of a lost will, an undertaking should be taken from the proposed administrator to prove the will should better evidence or a better document become available. In this way the attention of administrators who may not have access to a copy of [1953] VLR to their obligations would assist. 20 However, as I say in the case where there is clear evidence that the will has been destroyed and that the best evidence has been presented to the court, in my view an unlimited grant should be made. 21 However, whatever is the best practice in Probate, the defendant is Jean's administrator with full power to act including to compromise this suit. 22 For more abundant caution, the consent of all other beneficiaries has been obtained and I can now make orders in accordance with the terms of settlement which have been presented to the court. I have initialled them and they will take effect as from the date of these reasons.

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