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[2010] VSC 455
Supreme Court of Victoria
2010-10-07
FERGUSON J
Original judgment source is linked above.
ADMINISTRATION AND PROBATE - Letters of administration - presumption of death - scope of grant - ss 6, 7(1), 8, 57 Administration and Probate Act 1958 (Vic).
1 Cleve Curran had two daughters, Mhairi Curran (born in South Australia in 1945) and Angela Pearse (nee Curran) (born in 1946 in South Australia)[1]. Mr Curran died in 1962 leaving the bulk of his estate, which spread across Malaysia, Western Australia and Victoria, to his two daughters. Ms Pearse obtained Letters of Administration to collect in the balance of his estate and to distribute it (de bonis non) in Malaysia, Western Australia and Victoria. Mr Curran was entitled to a 6/1000's share in the Estate of the Late George Adams or what is often known as the Tattersalls Trust. Upon his death, his interest in the Tattersalls Trust devolved by operation of the trust deed to his two daughters as to one half each.
2 Ms Curran married Gunnar Neimanis in England. Together they had two children, Jacqueline Neimanis (now Bellchambers, born in the United Kingdom in 1966) and Nicholas Neimanis (born in the United Kingdom in 1967). In 1969, Ms Curran separated from her husband and children. Although they remained apart, Ms Curran and Mr Neimanis never divorced. Ms Curran has not been in contact with her family for over 20 years.
3 Ms Pearse has tried unsuccessfully to locate her sister so that she could finalise her father's estate by distributing Ms Curran's share to her. The only part of Mr Curran's estate which has not been administered is Ms Curran's interest. That interest has been converted into funds part of which have been paid into this Court (approximately $230,000), part into the Supreme Court of Western Australia (approximately $210,000) and part held by a Malaysian firm of solicitors in an account with Citibank (approximately $113,000). In addition to her interest in the estate of her father, Ms Curran is known to have approximately 1.9 million shares in Tatts Group Limited (as a result of the restructure of what was the Tattersalls Trust). Those shares are valued at approximately $4.5m. There are also unremitted trust distributions and share dividends estimated at approximately $2m. The total of Ms Curran's known assets is therefore approximately $7.1m, of which Victorian assets total approximately $6.7m. Ms Pearse has now applied for a grant of Letters of Administration in respect of the estate of her sister on the presumption that Ms Curran has died. Ms Curran's children support the application.
Does the Court have jurisdiction to grant Letters of Administration to Ms Pearse?
6 If Ms Curran is dead, then she has left the bulk of her known assets in Victoria. These are the funds held in this Court, the accrued trust distributions and share dividends from Tatts Group Limited and the shares in Tatts Group Limited. As to the shares, the registered office, place of business and share register of the company are all in Victoria. This means that the shares are located in Victoria.[4]
7 In those circumstances, the Court has jurisdiction to make a grant of Letters of Administration (assuming there is no will and that Ms Curran is to be presumed dead).
8 If a person has not been heard of for seven years by those who would be likely to hear from them then, if proper inquiries have been made and there is no evidence to the contrary, the person is presumed to be dead.[5] The presumption can only be relied on to prove that the person was dead when the proceedings in which the presumption is established began. There is no presumption as to the date of death.[6]
9 The presumption can only apply where there is someone with whom it might be expected the person would keep in touch.[7]
10 Ms Curran left England in 1969 with a Mr Sellar, who was one of the original executors of her father's estate. They went to what is now Malaysia. From that time on, Ms Curran and Ms Pearse did not keep in contact. However, Ms Curran did have sporadic contact with her children mainly when she returned to the United Kingdom for visits and through some correspondence. She was last in touch with her son in the late 1970s and her daughter in the early 1980s. There was some contact between Ms Curran and her husband before he died in 2001.
11 The family member who Ms Curran kept in contact with the most was her Aunt Pauline who resided in England. It seems that Ms Curran stayed with her aunt on her return visits to England. Her aunt's title was "The Princess Malikoff". In early 1988, Princess Malikoff died. Her executor and his wife (Mrs Whitby) were in London shortly after Princess Malikoff's death, dealing with funeral arrangements and other matters concerning the estate. One day when they were in the Princess's London flat, Mrs Whitby took a phone call from Ms Curran. She was calling to speak to her aunt. She was not aware that her aunt had died and according to Mrs Whitby sounded shocked and very upset when Mrs Whitby told her. She told Mrs Whitby that she was in Paris staying with a Nigerian friend. Mrs Whitby asked for her telephone number and contact details so that she could let her know about the funeral arrangements for Princess Malikoff. However, Ms Curran would not give Mrs Whitby that information. Mrs Whitby says that Ms Curran was almost hysterical during the conversation. She would not say why she would not give her the contact information but said she would ring again. However, Mrs Whitby never heard from Ms Curran again.
12 At about this time, Ms Curran's mother died. Ms Curran's daughter, (Ms Bellchambers) wanted to let Ms Curran know about this and tried to contact Princess Malikoff. She thought the Princess would know how to contact Ms Curran. Mrs Whitby wrote back to Ms Bellchambers telling her that Princess Malikoff had passed away and that she had spoken to Ms Curran who did not leave any contact details.
13 Since the telephone call in early 1988 with Mrs Whitby, no-one in the family has had any contact with Ms Curran. However, by that time, Ms Curran had not been in contact with her sister for almost twenty years, with her son for over ten years and with her daughter for over five years. By then, both her children were young adults in their early twenties. Following the death of her aunt, who seems to be the only family member that Ms Curran could be described as close to, the fact that Ms Curran has not been heard of by her other family members does not give rise to the presumption of death. The circumstances are such that the surviving members of her family are not people who might have been expected to hear from her.
14 There is however, someone who it could be expected would have heard from Ms Curran, and that is Tattersalls. By letter of 10 August 1986, Ms Curran informed the trustees of the Tattersalls Trust that her bank account number had changed. She instructed them to use the new number in future telegraphic transfers for payment of trust distributions. The account was with the Hong Kong and Shanghai Bank. In the letter, Ms Curran also gave her contact details as:
c/o Hong Kong Shanghai Bank,
Correspondence Counter,
21, Nathan Road,
Kowloon,
Hong Kong
15 This is also the address that her daughter used when sending correspondence to Ms Curran when they were in touch.
16 By letter of 29 May 2001, Tattersalls wrote to the manager of the Hong Kong and Shanghai Bank seeking a current postal address for Ms Curran. The letter explained that Ms Curran was a beneficiary of the Tattersall's Trust and regular payments were made by the trust into Ms Curran's account, the most recent being on 11 May 2001 for $93,870.56. Tattersalls requested an updated address for Ms Curran because the mail it had been sending to Ms Curran, care of the bank's correspondence counter, had been returned since the middle of 2001. The bank responded by letter of 8 June 2001 to say that it did not have a current postal address for Ms Curran. In those circumstances, Tattersalls suspended further payments. Since the beginning of October 2001, no money has been transferred by Tattersalls into the account. The Tattersalls Trust distributions and, following restructure of the trust, share dividends have been retained by Tatts Group Limited.
17 The value of the Tatts Group Limited shares and retained trust distributions and share dividends is estimated to be in excess of $6m.
18 As noted above, the last amount paid by Tattersalls into Ms Curran's account with Hong Kong and Shanghai Bank was a substantial amount of over $90,000. When Tattersalls stopped transmitting the trust distributions to Ms Curran's account in October 2001, it is likely that, if she was alive, she would have contacted them or the Hong Kong Shanghai Bank to find out why the money had stopped being paid into her account. However, no contact has been made by Ms Curran with either organisation.
19 There is no evidence that would contradict the presumption. Rather, all appropriate enquiries have been made and the evidence is consistent with the presumption that Ms Curran has died. In this regard, both Tattersalls and Ms Pearse engaged private investigators to attempt to locate Ms Curran but there was no trace of her in the United Kingdom,[8] Malaysia, France, Singapore or Hong Kong. The requirements for a finding of presumption of death have been established and Ms Curran is presumed to have been dead at the time these proceedings began.
20 None of Ms Curran's family have any knowledge of her making a will or of a will existing. None of the various firms who acted for her in relation to matters connected with her father's estate have any knowledge of a will and they do not hold one. Nor does the Hong Kong and Shanghai Bank. There are no obvious additional lines of enquiry that could be pursued at this stage in searching for a will. The evidence supports a finding that Ms Curran died intestate.
Should the Court make a grant of Letters of Administration to Ms Pearse?
21 Under s 6 of the Administration and Probate Act 1958 (Vic), the Court has power to grant Letters of Administration and has a discretion as to the person who is appointed as administrator. The usual practice is to grant Letters of Administration to the person who has the greatest interest in the intestate estate.[9] Ms Curran's children have the greatest interest in the estate. However, they have both supported the application by Ms Pearse for her to obtain the grant. Both of them reside in the United Kingdom. Ms Pearse resides in Victoria and it is likely to be easier and more efficient for her to administer the estate.
Should the Court make a full grant or more limited grant of Letters of Administration to Ms Pearse and, if limited, what should be its scope?
22 Counsel for Ms Pearse submitted that the Court could approach the grant in three ways:
(a) a full grant;
(b) if the Court was not satisfied as to intestacy, the Court could make a grant to collect and preserve the assets (ad colligenda bona); or
(c) the Court could make a limited grant to conduct a search for a will.
23 In relation to the second of these, it was submitted that a grant to collect and preserve the assets would give some standing to make further enquiries of the Hong Kong and Shanghai Bank which may still be holding some of the Tattersalls distributions paid into the account before Tattersalls suspended making those distributions. A grant to collect and preserve the assets is made where for some reason a full grant cannot be made immediately and the estate assets need protection.[10] That is not the situation here.
24 In the Estate of Twigg[11] concerns a limited grant in circumstances where a will was believed to exist but could not be found. Letters of Administration were granted on a limited basis until the will was found. That case is distinguishable. Here, there is no evidence that a will ever existed.
25 In my view, it is appropriate for there to be a full grant but leave to distribute the estate should be sought separately at a later time when the estate is ready to be distributed.[12]
Is a guarantee under s 57 of the Administration and Probate Act 1958 (Vic) required?
26 As a condition of making a grant, the Court may require that a guarantee be given.[13] Where, as here, the applicant for Letters of Administration has no immediate beneficial interest in the estate, the Court has a discretion whether to require a guarantee. The Court should require a guarantee unless there is a good reason why it is not required.[14] Here, the requirement for a guarantee would be unreasonably burdensome on Ms Pearse. Ms Curran's children are the only people with an interest in the estate and they have supported the application by Ms Pearse. A guarantee is not required in those circumstances.
27 There are other issues that will arise in the administration of Ms Curran's estate. It is not necessary for them to be dealt with in this application but for completeness I will identify them. The first is where Ms Curran was domiciled when she died. This issue will arise because all of the Victorian assets are moveables. Their distribution on intestacy will be according to the law of Ms Curran's domicile. The second issue is whether she died before or after her husband (who died intestate in 2001) as this may affect distribution of the estate although, ultimately, their children either directly or indirectly are likely to be the only persons with an interest in both estates.
28 A full grant of Letters of Administration should be granted to Ms Pearse on presumption of death of Ms Curran.
[1] A simplified chart of the Curran family is in the Annexure to this judgment.
[2] Section 6 Administration and Probate Act 1958 (Vic); Re Aylmore [1971] VicRp 45; [1971] VR 375.
[4] Brassard v Smith [1925] AC 371; Haque v Haque & Ors (No. 2) [1965] HCA 38; (1964) 114 CLR 98.
[5] Chard v Chard [1956] P 259; Axon v Axon [1937] HCA 80; (1937) 59 CLR 395; Re Watkinson [1952] VicLawRp 20; [1952] VLR 123.
[6] Axon v Axon [1937] HCA 80; (1937) 59 CLR 395.
[7] Axon v Axon [1937] HCA 80; (1937) 59 CLR 395.
[8] A person by the same name as Ms Curran was located in Scotland. However, that person was born on 18 November 1961 in Edinburgh, Scotland and her father died in 1961. She could not be the same person as Ms Pearse's sister.
[9] Boden, R. et al Wills Probate and Administration Service, Butterworths, para [23,100]. See also Re Pierce [1886] VicLawRp 152; (1886) 12 VLR 733 and In the Will of Eva Orloff (No. 2) [2010] VSC 83 in relation to the appointment of the person with the greatest interest in the will where the application is for Letters of Administration with the will annexed and Re Hoarey [1906] VicLawRp 75; [1906] VLR 437 where Letters of Administration of the goods not administered were sought.
[10] Re Cohen [1975] VR 197; Re Korp [2005] VSC 337.
[14] Re Tratt [1980] VicRp 62; [1980] VR 657.
(1964) 114 CLR 98
(1937) 59 CLR 395