Re Estate of Daphne Lillian May Thurston [2001] NSWSC 144

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

JUDGMENT 1 HIS HONOUR: Daphne Lillian May Thurston died on 7 February 1999. She left a document which is admitted by all the disputants to be a valid will bearing date 28 April 1994. In that will she named her son, the present plaintiff, as her executor. She left her property as to one-seventh to each of her six children, with a further one-seventh divided between two grandchildren. The children included the plaintiff and the defendant, Jeannette Fuz. Another one of her children is Peter Wayne Thurston. 2 There is a handwritten document which is headed "This is the last will & testament of Daphne Lillian May Thurston ... " which appears to have been written by the deceased in 1998. It is not duly executed as a will. 3 On 3 August 1999 the present plaintiff executed a renunciation of his right to apply for probate on paper that was prepared by his solicitors Gulley Helene Scerri. 4 On 16 June 2000 in proceedings 108744/2000 the present defendant applied for letters of administration with the will annexed in relation to the 1994 will. The Court received copies of notices under Part 78 rule 34E(1) in form 106E directed to other persons affected and requiring an appearance from such persons, otherwise the Court would determine the matter in their absence. Whether it was because of these notices or otherwise, Peter Wayne Thurston applied for probate of the 1998 document by filing, through Eric Butler, solicitor, a series of documents which were recorded as having been filed in Court on 26 June 2000. 5 The Court file shows that a letter from Mr Butler bearing date 23 June 2000 was received which simply said: "Re the Estate of the late Daphne Lillian May Thurston: I enclose the following documents for filing: 1. Summons for Probate. 2. Affidavit of Peter Thurston sworn 9 June 2000. 3. Renunciation of Probate. 4. Copies of Notice to Affected Persons. 5. Cheque in the sum of $469.00." 6 Accordingly, the renunciation which the present plaintiff had executed in August 1999 came to be filed. However it is significant to know it came to be filed in connection with the application of Peter Thurston for probate of the 1998 document. 7 On 28 June 2000 the Registrar raised a requisition on the defendant's application for letters of administration cta: "Please note that the competing application 109253/00 has been filed. In circumstances such as these Hodgson CJ in Eq stated in the application of Hardwicke, Estate of Daubney (1997) that it is appropriate for the matter to proceed by way of statement of claim." 8 There was never any response to that requisition as far as the Court file discloses. 9 In October 2000 the present plaintiff became aware that Peter Thurston was not proceeding with his application. 10 It appears that counsel had in fact advised Peter Thurston the previous December that the application had little chance of success. The present plaintiff says that he did not know that at that time and he only became aware of that when he received advice through Eric Butler, solicitor, that another barrister had advised the same thing. He thereupon gave instructions for Mr Butler to seek probate and that application was advertised but the defendant placed a caveat. 11 The question today is whether there should be leave to withdraw the renunciation, whether the caveat should be removed, and there is also in these proceedings a cross-claim filed by the defendant for letters of administration cta. 12 Although the cross-claim is identical to that made in suit 108744/00, it is perhaps convenient to deal with it on the merits rather than consider whether a second action is vexatious. 13 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. 14 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. 15 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. 16 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. 17 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. 18 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. 19 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. 20 The affidavit evidence when I first considered this matter was not completely clear. The advice from the first counsel to Peter Thurston was evidently given in December 1999. The renunciation was in August 1999 but it was not filed until 23 July 2000. However, when the plaintiff was in the witness box it appeared clearly that he had no knowledge of what had happened in December 1999; he had given the renunciation originally so that Peter could make the application. It was only when Peter sought to withdraw that he, Terrence Thurston, sought to withdraw the renunciation. The fact that the renunciation was given in support of Peter Thurston's application for probate is made manifest by the fact that it was filed along with such application for probate. That application now having been withdrawn, it seems to me there is no reason why I should not give leave for the renunciation to be withdrawn. 21 The defendant has filed evidence to show that she is not happy with the delays that have occurred in the past. However, some of those delays at least could not be laid at the feet of the present plaintiff and, in any event, where there are competing documents one always expects some delay. Many of the complaints that are made are really just allegations without anything more, or they deal with matters of detailed administration which the present plaintiff was not in a position to settle. 22 Accordingly, in my view, the application to withdraw the renunciation should be granted, the defendant's caveat should be removed and her application for letters of administration cta refused. The matter should be then referred to the Registrar to complete the grant of probate to the plaintiff. The costs of both parties will come out of the estate.

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