Melville v Ancketill

Supreme Court of NSW|2020-03-30|Before: Hallen J, Mr J

Solicitors: Urania Zafiris Solicitor (Applicant) File Number(s): 2018/00203409

Introduction

HIS HONOUR: This is an application, effectively, on the papers seeking the leave of the Court to retract a renunciation of probate.
The Applicant, Kaye Lim, who is the sister of the deceased, filed a notice of motion, dated 8 December 2019, in which she sought the leave of the Court "to retract the Renunciation of Probate executed by her on 29 March 2019 and filed in [the] Supreme Court of New South Wales" in proceedings for a grant of Probate of the Will dated 1 May 1986, of Ron Tee Lim (the deceased), who died on 1 February 2018.
The Applicant filed one affidavit, which relevantly provided: "2. By Renunciation dated 29 March 2019 and filed in Supreme Court of New South Wales proceedings 2019/00139074 for a grant in the estate on 10 July 2019, I renounced all rights to probate of the Will to be made or given to me. 3. An Application has been made to this this [sic] court to grant me leave to retract my renunciation. 4. Pursuant to such leave, I retract my renunciation."
The matter was referred to the Court by an Acting Deputy Registrar in Probate for the determination of Ms Lim's claim as the leave of the Court is required.

The Background Facts

The Court file reveals far more information than did the Applicant's affidavit. I take the following facts from the contents of the Court file: 1. On 10 July 2019, Seema Virinder Singh filed a Summons for Administration with the Will of the Deceased Annexed, as an uncontested application in the Probate Registry. 2. Ms Singh's affidavit in support revealed that Ms Singh had known the deceased since 1999 and was "his legal guardian and [had] observed his signature on numerous occasions". It also provided, what might be regarded as, the usual information, including: matters concerning the due execution of the deceased's Will; a copy of the deceased's Death Certificate; that one executor, Colin Lim, who was the deceased's brother, had predeceased the deceased, having died in December 1993; that the deceased's sister, Kaye Lim, had renounced Probate of the deceased's Will on 29 March 2019; that Kaye Lim was the sole beneficiary named in the Will; that the deceased had left assets in New South Wales, with a gross value of about $1.783 million and a net value of about $1.773 million; and that notice of her application had been published in the "New South Wales On-line registry website" on 3 May 2019. Finally, in her affidavit, Ms Singh averred that she was "not aware of any circumstances which raise doubt as to my entitlement to a grant of administration of the estate of the deceased". 3. The deceased's Will, in fact, provided that the whole of his estate "both real and personal of whatsoever nature and wheresoever situate [was left] to my … brother and sister aforesaid in equal shares or to the survivor of them". 4. Ms Singh also relied upon an affidavit, affirmed by her on 20 May 2019, which provided evidence that the deceased "did not leave any person who at the time of his death was his de facto partner, for whom the estate or any part of it is required to be held under a statutory trust for the partner". 5. There was also a Certificate dated 2 April 2019, of a Notary Public of the Republic of Singapore, to which was annexed a Renunciation of Probate dated 29 March 2019, by Ms Lim, as well as another Certificate, also dated 2 April 2019, by the same Notary Public of the Republic of Singapore, to which was annexed a copy of an affidavit of Ms Lim in which she had stated that "I am unwilling to apply for Probate and renounce my position as Executor". 6. The application was processed in the Registry of the Court in the usual way. On 7 August 2019, an Acting Deputy Registrar in Probate raised a number of requisitions, addressed to the legal representatives of Ms Singh, noting, amongst other things, that "[t]he Plaintiff has no beneficial interest in the estate and the Court will not make a grant to such a person …" and that in the absence of special circumstances being shown to exist, as will justify a grant, the application in its present form would be rejected. 7. Commendably, the learned Acting Deputy Registrar in Probate suggested that "[t]he executor/sole beneficiary will have to file an affidavit retracting [her] renunciation". (The Court, otherwise, was bound to act upon the renunciation, as it had not been withdrawn in the only proper way in which it could be withdrawn, no application having been made to the Court for leave to do so.) 8. Helpfully, she also referred to s 72 of the Probate and Administration Act 1898 (NSW) which, relevantly, provides that when any person named as executor 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. 9. Subsequently, Ms Lim filed a Summons for Probate on 17 January 2020, as the sole surviving executrix named in the Will of the deceased. 10. Ms Lim affirmed the Affidavit of the Executrix on 8 December 2019. She disclosed her address as one in Singapore. Her affidavit confirmed many of the facts that Ms Singh had averred to in her affidavit (to which I have referred). Although there was some difference between the value of the net estate averred to in Ms Lim's affidavit (approximately $1.782 million) and that in Ms Singh's affidavit, the difference can be explained by the omission of legal costs as a liability in the former affidavit. Ms Lim also stated that she was "not aware of any circumstances which raise doubt as to our [sic] entitlement to a grant of probate of the Will of the deceased". 11. Despite the Acting Deputy Registrar in Probate having informed the solicitors who acted for Ms Singh, and who continued to act for Ms Lim, of the appropriate procedure and the steps to be taken, her application for Probate of the deceased's Will was by a person who was out of the jurisdiction.
The present application before me is one for leave to retract the renunciation so that Ms Lim, as executrix, or some other person within the jurisdiction, may be appointed under her power of attorney to act for her, and so that administration may be granted to such attorney, on behalf of Ms Lim, and on such terms and conditions as the Court thinks fit.

Determination

Turning to the questions for consideration, as to the appointment of Ms Lim as the named executor even though she is outside the jurisdiction, reference should be made to Estate de Wild, deceased [2019] NSWSC 1128, in which Lindsay J was dealing with an intestate estate. However, his Honour noted at [17]-[19] and [25]-[26]: "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. 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. 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. … 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. 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 n 29. 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'."
Turning then to the renunciation of Probate, an executor is the nominee of the will-maker not the appointee of the Court. Accordingly, she, or he, may refuse the office and one way in which this is done is by filing a renunciation of probate.
Section 69 of the Probate and Administration Act, relevantly, provides: "Where, after the passing of this Act: (a) any person renounces probate of the will of which the person is appointed executor or one of the executors, or (b) … (c) … the right of such person in respect of the executorship shall wholly cease, and the representation to the testator and the administration of the testator's estate shall, without any further renunciation, go, devolve, and be committed in like manner as if such person had not been appointed executor."
The section provides relative certainty as to the circumstances that, of themselves, bring to an end an executor's entitlement to a grant of probate.
In Wills, Probate and Administration Law in New South Wales (1st ed, 1996, LBC Information Services) by Geddes, Rowland & Studdert, after referring to s 69, the learned authors write, at [69.07]: "Because a renunciation is only effective when filed in court, clearly a renunciation may be withdrawn at any time before filing." (citations omitted)
The authorities cited by the learned authors establish that a renunciation may be withdrawn before it is filed: In the Goods of Morant (1874) LR 3 PD 151 at 152-153 (Sir James Hannen); In Re Goddard [1951] QWN 46. This is not the position here, as it is clear from the Court file, and accepted in her application, that Ms Lim filed the renunciation.
Yet, there is also clear authority that a renunciation of Probate may be withdrawn even after it is filed. However, after it is filed, the leave of the Court is required for its withdrawal: Melville v Ancketill (1909) 25 TLR 655. The application to retract the renunciation is made by notice of motion supported by an affidavit.
In relation to such an application, I cannot do better than quote a passage, written by Young J (as his Honour then was), in Re Estate of Daphne Lillian May Thurston [2001] NSWSC 144 at [13]-[19]: "The rules as to retracting renunciations have been much the same since the Ecclesiastical Courts invented them two centuries ago. Prima facie s 69 of the Wills, Probate and Administration Act 1898 would appear to alter those rules because that section provides that where a person renounces probate the right of such person in respect of the executorship shall wholly cease. However, that section has been construed in other places, in identical legislation, as basically not altering the old practice at all, but merely showing that once a renunciation is filed then no further citation need be given to the person named as executor. The authorities show that once one has renounced, then, unless there is something more, the renunciation should not be able to be recalled. It is not enough that the person renouncing has merely changed his or her mind: Re Gill (1873) LR 3 P & D 113. The headnote of that case says a person will not be able to withdraw a renunciation unless he can show that such retraction will be for the benefit of the estate or those interested under the deceased's will. It is hard to see how that comes from the judgment in that case as Brooking J noted in Re Lawrence [1982] VR 826. The case which seems to lay down the principle to be considered is Re Stiles [1898] P 12. The facts in that case were that two executors were named in the will, A and B. B renounced so that A could take a grant in his name solely. A then took out a grant and absconded. It was held that B should be permitted to retract his renunciation and to take out probate. The reason was that this would be the best method of administering the estate. One contrasts this case with cases such as Re Thornton (1826) 3 Add 273; 162 ER 479 where there is a renunciation and then letters of administration are granted cta to another person and thereafter the administrator dies and the original executor seeks to withdraw his renunciation. That is not permitted to occur because it would take the administration down an entirely different line to the one that has been commenced. It would seem that so long as there is a reason for retracting the renunciation the Court should normally grant the application. This is because it is the right of any testator to choose who shall administer his estate. Once that choice is made then it is only on very special grounds that the Court would choose some other person. If the person renounces for a particular reason and that reason ceases to be operative, then the renunciation should be allowed to be withdrawn. The major textbooks indicate that it is only if it is shown that the retraction will be for the benefit of the estate or those interested under the will that it will be permitted. As Re Lawrence says at page 829, this is an overstatement. However, the principle is true to a certain extent, ie that it must be in the interests of the estate for it to be properly administered, so long as there is no change in the line of administration. The Court does not in my view examine, in this sort of case, whether one or other of the next of kin, including the person nominated as executor, who has previously renounced, would more speedily wind up the estate or might have less problems in so doing. The Court permits the person nominated by the testatrix to perform that duty in accordance with her wishes. All that has to be explained is why, having once renounced, the person renouncing should be permitted to withdraw."
It can be seen from the above, that an applicant should show that leave to retract the renunciation is for the benefit of the estate or of those interested under the deceased's Will. That is a question of fact: Re Ahern [1951] QWN 32 at 42 (Stanley J).
In my view, to allow Ms Lim to retract her renunciation of Probate would be for the benefit of the estate. She is, after all, the sole surviving beneficiary named in the deceased's Will and, other than a few creditors for relatively modest amounts, there are no other persons who have any interest in the estate of the deceased.
Accordingly, the application to retract the renunciation made by Ms Lim should be granted. The order was made in Court on the return date of the notice of motion.
The matter will now be referred to the Acting Deputy Registrar in Probate so that, after the procedure suggested is taken by Ms Lim, a grant of Probate of the deceased's Will can be granted. However, a formal instrument of retraction should be executed and filed before probate is granted: Re Lawrence deceased [1982] VR 826 at 831 (Brooking J).
There is no purpose to making any order for her costs, as Ms Lim is the sole beneficiary named in the deceased's Will. Mr Pappas, who appeared, did not suggest otherwise.
The Court: 1. Orders that leave be granted to Kaye Lim, the sole executrix named in the last Will dated 1 May 1986, of Ron Tee Lim, to retract the Renunciation of Probate that she executed on 29 March 2019 in respect of the said Will. 2. Makes no order as to costs to the intent that the Applicant pays her own costs of the application.

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: 31 March 2020

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