Reyburn & Anor [2002] WASCA 171 (21 June 2002)

Administration Act 1903, s 14, s 14(1), s 25, s 25(1), s 26, s 26(1), s 33

Legal Practitioners' Act 1893

Non-contentious Probate Rules 1967 (WA), r 3, r 5(1), r 6(1), r 9, r 9(vi), r 10(4), r 27(2)(b)

1 HASLUCK J: This appeal is brought pursuant to r 5(1) of the Non-Contentious Probate Rules 1967 (WA) from a decision made by a Registrar of the Supreme Court. On 8 May 2002 the Registrar refused the applicants' application for letters of administration to be granted to them in respect of the estate of Peter Gregory Cranny. The applicants also seek an extension of time within which to bring the appeal.

2 Prior to his death Peter Gregory Cranny was living at 108 Evergreen Loop, Stake Hill in the State of Western Australia. He was a landscape gardener. He had married once during his lifetime. A decree nisi of dissolution of marriage to his wife, Michelle Lee Cranny, was granted on 14 September 2001 which became absolute on 15 October 2001. There were two children of the marriage being Aleisha Lee Jane Cranny born 2 November 1991 and Sharon Margaret Cranny born 28 January 1993.

3 The deceased's body was found at his property by his mother and sister on 17 November 2001 and it seems that he died at some time between 11 November and 17 November 2001. I note in passing from his death certificate that the cause of his death is subject to coronial investigation.

4 It follows from these facts and events that at the time of his death the deceased was not married and that his two daughters had not yet attained the age of majority. The relevant death certificate suggests that he was married as at the date of his death but it is apparent from the evidentiary materials before me that the entry in that regard is in error. The dissolution of his marriage had taken effect shortly before he died.

5 A statement of assets and liabilities has been prepared which establishes that the deceased left an estate within Western Australia, the gross value of which is $53,000.

6 The applicants, Michelle Cranny and her solicitor, John Reyburn, have made careful search and enquiry but to the best of their knowledge, information and belief the deceased did not leave a will. It was therefore necessary to give thought to applying for letters of administration in respect of the estate of the deceased.

7 Section 14 of the Administration Act 1903 deals with the issue of entitlements on intestacy. Section 14(1) provides that the property of a person who dies intestate shall be distributed according to the entitlements set out in the Table referred to in that provision. Clause 5 of the Table provides that where a person dies intestate leaving issue but no husband or wife the issue shall be entitled to the whole of the intestate property.

8 Section 25 of the Act deals with the persons entitled to administration. It reads as follows:

"(1) The Court may grant administration of the estate of a person dying intestate to the following persons (separately or conjointly) being of the full age of 18 years, that is to say -

(a) one or more of the persons entitled in distribution to the estate of the intestate;

(b) any other person, whether a creditor or not, if there be no such person entitled as aforesaid resident within the jurisdiction and fit to be so entrusted, or if the person entitled as aforesaid fails, when duly cited, to appear and apply for administration."

9 Section 26(1) of the Act provides that as a condition of granting administration to any person the Court may require one or more sureties to guarantee that they will make good any loss that any person interested in the administration of the estate may suffer in consequence of the breach by the administrator of his duties as an administrator.

10 Before leaving the provisions of the Act, I note that by s 33, in circumstances where an infant is named as the sole executor in a will, administration with the will annexed may be granted to the guardian of such infant, or to such other person as the Court thinks fit, until such infant has attained the age of 18 years, with full or limited powers to act in the premises until probate has been granted to the said executor. The person to whom such administration is granted shall, unless otherwise ordered, have the same powers vested in him as any ordinary administrator with the will annexed.

11 The Non-contentious Probate Rules deal with the procedure to be followed in applying for a grant of probate or for letters of administration. Rule 3(1) states that the Rules of the Supreme Court 1971 and the general practice of the Court apply, so far as may be practicable, to proceedings to which the rules relate, but only to the extent that the Act or these Rules do not otherwise provide.

12 Rule 6(1) states that an application for a grant may be made on motion ex parte to the Registrar in Chambers. Rule 9 states that an application for administration of the estate of a deceased person dying intestate shall be supported by an affidavit containing the particulars prescribed by that provision. It is material to note that by r 9(vi) the affidavit shall set forth that the applicant has a right to the administration of the estate of the intestate, and the names and addresses of all persons who have a right thereto prior to or equal with the right of the applicant. The affidavit must also state that the applicant, if given a grant, will administer the estate according to law.

13 By r 10(4) the Registrar shall not require a guarantee under s 26 of the Act as a condition of granting administration to any person without giving that person an opportunity of being heard with respect to the requirements.

14 The effect of r 27(2) is that a guarantee shall not be required, except in special circumstances, where the applicant or one of the applicants is a person holding a current practice certificate under the Legal Practitioners' Act 1893.

15 Rule 5 provides that a person aggrieved by an order, decision or requirement of the Registrar may appeal there from to a Judge in Chambers. An appeal shall be by notice in writing to attend before the Judge and shall be filed in the Register within 5 days after the order, decision or requirement complained of, or within such further time as may be allowed by a Judge or the Registrar.

16 It appears from the affidavit of Michelle Cranny's solicitor, John Henry Reyburn, sworn 21 May 2002 that he is the principal of the legal firm carrying on business in Mandurah under the name of Nicholson Clement. He has been advising Michelle Cranny, the former wife of the deceased, since April 2000. Mr Reyburn refers to the dissolution of the deceased's marriage prior to his death. He goes on to say that Ms Cranny sought his assistance with respect to the administration of the deceased's estate. In the course of providing that assistance he advised Ms Cranny that as the sole beneficiaries of the estate were infants, that the Court might well require the provision of guarantees to the value of the estate as required by s 26 of the Administration Act.

17 Mr Reyburn says he was informed by Ms Cranny that she was not able to provide such surety from amongst her friends or family. He was therefore instructed to join with her in making application for letters of administration of the estate and in so doing, to utilize the benefit of r 27(2)(b) of the Non-Contentious Probate Rules so as to dispense with the provision of sureties.

18 It was against that background that application for letters of administration was made by Ms Cranny and Mr Reyburn jointly.

19 Mr Reyburn was subsequently advised by a letter from the Associate to Registrar C Boyle dated 8 May 2002 that the application had been refused. The relevant letter reads as follows:

"The application in this matter has been refused as misconceived. The applicant, John Henry Reyburn, has no connection with the estate and no standing to apply.

The only proper applicant is the mother of the deceased's children, assuming that she is their guardian (of which evidence would be required, given the divorce). She would have to provide guarantees for the gross value of the estate, or appoint a trustee under s 17A of the Administration Act."

20 I have already noted that there is a right of appeal from a decision of the Registrar to a Judge in Chambers save that the right is to be exercised within five days of the decision. In the event, Mr Reyburn entered into correspondence with the Registrar with the result that the time allowed for an appeal expired. The correspondence did not alter the decision. It is against that background that the applicants now seek to proceed with an appeal. As I have already noted, an order is sought also that the time for filing the notice of appeal be extended.

21 The grounds for the extension of time are that the delay was minimal and is explained by the correspondence initiated by the applicants. It is said further that there is no prejudice to any person as a result of the short delay.

"1. The learned Registrar erred in law in his decision that:

(a) the application be refused as misconceived; and

(b) the applicant, John Henry Reyburn, has no connection with the estate and no standing to apply

in view of the provisions of Rule 27(2)(b) of the Non-Contentious Probate Rules 1967."

23 As to the merits of the appeal, counsel for the applicants acknowledged that the only persons entitled in distribution to the estate were the two children of the deceased aged 11 and 9 years respectively. He submitted that no person was entitled to apply for administration of the estate under s 25(1)(a) of the Administration Act because the only persons entitled to distribution in the estate were the two issue, and they were both under 18 years of age. Accordingly, s 25(1) applied and had the effect of excluding the children as applicants because that provision is quite explicit that the Court may only grant administration to certain persons (separately or conjointly) being of the full age of 18 years.

24 Counsel submitted that the learned Registrar was in error in stating that the only proper applicant was the female applicant, Ms Cranny, provided she proved she was the children's guardian, and upon the basis that she would have to provide guarantees.

25 Counsel submitted that the learned Registrar erred in law and acted upon a wrong principle in that he imported a requirement of "standing" that the applicant have a "connection with the estate" which is not found within s 25(1)(b) of the Administration Act. It was submitted further that such a requirement is expressly inconsistent with the words "any other person" in s 25(1)(b) of the Act.

26 It was said further that although the Court has a discretion whether to grant administration to a person under s 25 of the Administration Act, it is submitted that the only result available in the instant case, in the proper exercise of the discretion, is to grant the application by Ms Cranny and Mr Reyburn as the joint applicants and not to require the giving of a guarantee given that one of the applicants, namely, Mr Reyburn is a practising solicitor.

27 To my mind, s 25(1) of the Administration Act clearly envisages that if there are persons entitled in distribution to the estate of the intestate then such persons will have a prior claim to a grant of administration as opposed to other persons. Section 25(1)(b) allows for an application to be made by "any other person" provided there is not a person entitled in distribution to the estate of the deceased. Accordingly, in the present case, if the two children were over the age of 18 years there could be little doubt that as the persons entitled in distribution they would have a prior claim to being granted administration of the estate.

28 In the present case, however, the reality is that the two children are under the age of 18 years and therefore a question arises as to whether it is open to the Court to grant administration of the estate to them as the persons entitled in distribution having regard to the requirement in s 25(1) that the grant is to be to persons "being of the full age of 18 years".

29 The decision of the Registrar contemplates that in this matter, as in other circumstances in which infants are required to exercise legal rights, the infants can exercise their rights through the agency of a guardian which, in this case, is likely to be the mother of the infants. The assumption is that if the guardian is of the full age of 18 years then the requirements of the statute will have been satisfied.

30 I consider that this is the correct view of the matter. Counsel for the applicants was unable to refer me to any decided cases to the contrary. To my mind, it is significant that s 33 of the Administration Act allows for administration with the will annexed to be granted to the guardian of an infant executor. It is therefore clearly consistent with the scheme of the Act that an estate can be administered by a guardian on behalf of an infant as the person who would otherwise, but for the incapacity resulting from infancy, be entitled to administer the estate. The Rules of the Supreme Court generally allow for rights vested in or available to a party lacking legal capacity to be exercised on the party's behalf by a guardian.

31 I am satisfied that the applicant should be allowed an extension of time within which to pursue the appeal upon the grounds that there is a reasonable explanation for their delay in that regard. However, it follows from the observations I have just made that, in my view, the appeal against the Registrar's decision should be dismissed. So long as it is open to the infant children of the deceased to apply for letters of administration as the persons entitled in the distribution of the estate, it was open to the Registrar in the proper exercise of his discretion to exercise his discretion against Ms Cranny and Mr Reyburn as applicants for administration.

32 In summary, then, it is open to the infant children of the deceased to apply for letters of administration by their guardian in the manner contemplated by the Registrar's letter dated 8 May 2002 provided the guardian is over the age of 18 years. If such an application is not made the position will have to be reviewed in the light of what then occurs.