The Estate of Ron Tee Lim (deceased); The Application of Kaye Lim

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:

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 Court file reveals far more information than did the Applicant’s affidavit. I take the following facts from the contents of the Court file:

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.

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]:

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:

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]:

The authorities cited by the learned authors establish that a renunciation may be withdrawn before it is filed: In the Goods of Morant (1874) LR 3 PD 151 at 152–153 (Sir James Hannen); In Re Goddard [1951] QWN 46.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]:

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: