Estate de Wild, deceased

Irene Anne de Wild (“the deceased”), also known as Irene Anne Elizabeth de Wild, died in Milton Ulladulla Hospital, on the South Coast of New South Wales, on 26 September 2017, aged 74 years, leaving an estate in New South Wales (the proceeds of bank accounts) with an estimated value of about $118,000.

The deceased was married only once. She was survived by her husband, Hermanus de Wild (“the Applicant”), but she died without issue.

To the best of the knowledge, information and belief of the Applicant, the deceased died intestate. However, in his preparations for an application for a grant of administration, he discovered that the deceased purportedly made a will dated 19 September 2017 (as she lay dying in hospital) which, although it made some provision for him, favoured the deceased’s brother, the defendant in these proceedings.

Upon an application of the rules of intestacy for which Chapter 4 of the Succession Act 2006 NSW provides, the whole of the deceased’s estate would pass to the Applicant as her widower: sections 104, 110 and 111.

The Applicant’s solicitor (Mr AJ Fondacaro) conducted an investigation of the circumstances in which the purported will was executed, making inquiries of an attesting witness and procuring the Hospital’s clinical notes for examination.

The outcome of that investigation was to demonstrate, objectively, that the deceased was unlikely to have had testamentary capacity at the time she executed the purported will, and she was as equally unlikely to have known and approved of the contents of the purported will.

The defendant, as the only person other than the Applicant to benefit under the purported will, has formally acknowledged that the will was invalid, and consented to a grant of administration being made as now sought in these proceedings, essentially in favour of the interests of the Applicant.

On 5 January 2018 the Applicant published a formal notice of his intention to apply for letters of administration of the deceased’s estate.

On 11 July 2019 (as plaintiff) he filed a summons in which he sought:

By an email dated 22 July 2019 a Senior Deputy Registrar of the Court addressed a requisition to the parties to the effect that, according to established practice:

In response to this requisition, and in anticipation of orders being made to give effect to his response, the Applicant filed:

The power of attorney executed by the applicant in favour of Mr Fondacaro is expressed to be “limited to authorising and directing my attorney to act on my behalf in respect of the estate of my late wife, Irene Anne de Wild (the ‘estate’), including, but not limited to, obtaining a grant of letters of administration of the estate, conducting legal proceedings on my behalf in respect of the estate and completing the administration of the estate”.

The proceedings having been referred to me as Probate List Judge because of the application to pass over the purported Will dated 19 September 2017, the course of the proceedings came to my attention.

I am informed by the Registry that, since time immemorial: (a) the ordinary practice of the Registry is to insist that an application for administration of an intestate estate be made by a person resident in NSW; (b) where the person who would be entitled to a grant of administration of the estate (if resident in NSW) is resident outside the State, he or she is invited to appoint an attorney to apply under section 72 of the Probate and Administration Act 1898 for a grant of administration on his or her behalf; and (c) by way of a contrast, a grant of probate of a will to an executor named in the will can be, and routinely is, made notwithstanding that the executor resides outside the State.

The jurisdiction of the Supreme Court of NSW to grant probate to “an absent executor” was established in the 19th century. The Full Court (constituted by Martin CJ and Manning J) held, in The Goods of James Blackwood (1881) 2 LR (NSW) Eq 83, that (by virtue of clause 14 of the Charter of Justice, to which reference will hereafter be made) the Court has a general power to grant probate, including a power to grant probate to an executor resident out of the jurisdiction.

The pathway to recognition of a jurisdiction of the same width to grant administration to an “absent administrator” is not as well marked, but it is there to be found.

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.

The probate jurisdiction of the Court as now constituted (including jurisdiction to grant letters of administration) can be traced back to clauses 14-17 of Letters Patent dated 13 October 1823 (now known as “The Third Charter of Justice) issued pursuant to the Imperial Statute for Geo IV c 96, colloquially known as the New South Wales Act, 1823 (Imp), section 10 of which authorised establishment of the Court as a court of “ecclesiastical” (that is, probate) jurisdiction. The continuity of that jurisdiction is evidenced both by section 33 of the Probate and Administration Act and section 22 of the Supreme Court Act 1970 NSW.

The Third Charter of Justice speaks of grants of administration being made by the Court in terms which might be read as suggestive of a residential qualification for a grantee but which, read in historical context, may be no more than a reflection of the geographical constraints of an isolated, 19th century colony.

For practical purposes, it is not necessary to trace the Court’s probate jurisdiction to the time of the Court’s establishment or to dwell on the terms of the Third Charter of Justice. Section 40 of the Probate and Administration Act provides that “[the] Court shall have jurisdiction to grant probate of the will or administration of the estate of any deceased person leaving property, whether real or personal, in New South Wales”. Section 23 of the Supreme Court Act 1970 provides that “[the] Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales”, the width of which provision is confirmed by its legislative history, explained in Re AAA [2016] NSWSC 805 at [22]-[27].

Section 97 of the Probate and Administration Act is predicated upon an assumption that the Court has jurisdiction to make a grant of probate or administration in favour of a grantee resident outside NSW (with emphasis added):

This section ensures that a non-resident executor or administrator is amenable to court process issued in NSW by a person who has a claim against an estate, without an independent requirement to establish a connection with the State to ground jurisdiction in a NSW court.

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 n29. 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”.

The reason for this reluctance is not a concern about a want of jurisdiction to make a grant, but a concern about the practical amenability of an absent administrator (or, no less, an absent executor) to enforcement proceedings should a claim be made against the administrator / executor or against an estate during the course of administration of the estate.

The Probate and Administration Act contains a number of specific provisions to which reference can be made in connection with administration of an estate in NSW for the benefit of a person resident outside the State: in particular, sections 63, 72 and 74. They do not constrain the jurisdiction of the Court for which section 40 of the Act, in particular, provides; but they do point in the direction of the Registry’s established practice when articulating criteria for the appointment of an administrator in particular circumstances.

Omitting an obsolete provision in section 72(1), those sections are presently in the following terms (with emphasis added):

In Estate of Kruttshnitt (deceased) (1941) 42 SR (NSW) 79 at 81, Nicholas CJ in Eq made a grant in favour of an absentee administrator (subject to provision of local sureties) pursuant to section 63(d), there being no person within the jurisdiction who came within the classes described in section 63(a), (b) or (c).

Provided there is property in NSW to be administered, and therefore to ground a grant, there is no jurisdictional impediment to a grant of probate or administration being made to a person resident outside the State. Like a requirement that security be provided as a condition of a grant, a requirement that a grant be made to a person resident in the State is a means of protection for those who are, or may be, beneficiaries or creditors of a deceased estate. If a grant is made without security, to a person beyond the Court’s jurisdiction, the Court’s capacity to enforce the due administration of an estate is to that extent diminished.

In an exceptional case where, as in the present proceedings, the Court is satisfied that the only person beneficially entitled to an estate is the person by whom, or on whose behalf, an application is made for administration, the necessity for a local administrator or provision for security may fall way. The present proceedings might be thought to illustrate that point because of the small size of the estate and the proximity of the Applicant in New Zealand (not quite a foreign country), not beyond reach by Australian court process in the ordinary course.

That said, even in such a case the Court might be reluctant to make a grant in favour of an absentee applicant unless satisfied that the estate has no local debts.

The possibility of local debt, and the difficulties of enforcing it against an absent executor, were mentioned as a discretionary reason for refusing a grant of probate to a non-resident executor in The Goods of James Blackwood (1881) 2 LR (NSW) Eq, 83 at 86, an observation echoed in The Will of Jane Thomas (1884) 1 WN (NSW) 89. In much the same spirit, in Estate of Kruttschnitt the Court required security even though the evidence before the Court was that the estate had no debts in NSW.

Steps having been taken to restructure the Applicant’s personal application for a grant of administration to one made on his behalf by his NSW solicitor acting as his attorney pursuant to section 72 of the Probate and Administration Act, it is expedient to give effect to the restructured application.

In the course of doing so, I make the following points:

For these reasons, on the application of the parties jointly, I make notations and orders to the following effect: