NSW Supreme Court Denies Guardian Appointment for Minor Contesting Administration

The NSW Supreme Court denied the application to appoint a guardian for a minor to contest a claim for administration due to the lack of evidence supporting the minor's claim and the potential for unnecessary litigation.

New South Wales Supreme Court

CITATION : Re Estate [NAME] [2000] NSWSC 875 CURRENT JURISDICTION: Equity Division Probate List FILE NUMBER(S) : SC 113321/98 HEARING DATE(S) : 21/08/2000 JUDGMENT DATE : 31 August 2000

PARTIES : [NAME] (Applicant for Administration) [NAME] (Proposed Tutor) JUDGMENT OF : Young J

COUNSEL : [redacted] [NAME] (Proposed Tutor) SOLICITORS : [redacted] [NAME] (Proposed Tutor) CATCHWORDS : SUCCESION [74] & [90]- Administration- Minor taking on intestacy if mother not deceased's de facto wife- Whether grandmother should be appointed minor's guardian to contest claim for administration. LEGISLATION CITED : Wills Proabate & Administration Act 1898 s 32G Supreme Court Rules, Part 78 rules 29 & 31 Re Dillon's Infants (1891) 7 WN (NSW) 131 CASES CITED : Re Ewing (1828) 1 Hag Ec 381; 162 ER 619 Re Stephenson (1866) LR 1 P & D 287 Re Weir (1862) 2 Sw & Tr 451; 164 ER 1070

DECISION : See para 16

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

YOUNG J

THURSDAY 31 AUGUST 2000

113321/98 - RE ESTATE [NAME]

JUDGMENT

1 HIS HONOUR: The basal facts are that [NAME] died on 28 March 1998. He left surviving him the plaintiff, [NAME] who claims to be his de facto widow, a daughter [NAME] (whose mother is [NAME]) ([NAME] was born on [DATE] and is now four years of age) and his mother, [NAME]. [NAME] has another daughter, [NAME]. 2 The deceased appears to have left a document on a newsagent's will form which bears a signature that could be his and a date, 10 December 1997. This document leaves property to [NAME] and to her two daughters. [NAME] disputes the validity of this document.

3 [NAME] has disclosed the existence of the document but has applied for letters of administration on the basis that the deceased died intestate. 4 If [NAME] was the de facto partner of the deceased she would be entitled to a grant. If she was not, then the person entitled to the grant would be [NAME]. 5 [NAME] lodged caveats against a grant of administration. It is quite clear that she has no interest in the estate at all because if the facts fall out one way, [NAME] takes the estate; if they fall out another way, [NAME] takes.

Accordingly, on 21 August 2000 I ordered that the latest caveat ceased to have effect. 6 [NAME] of counsel, who appeared for [NAME], then said that his client wants to ensure that [NAME] takes the estate rather than [NAME], and to protect [NAME]'s interest it is necessary that the proceedings brought by [NAME] for administration be defended. [NAME] proposed that [NAME] be appointed [NAME]'s guardian under Part 78 rules 29 and 31 of the Supreme Court Rules. Mr [NAME] der [NAME], who appeared for [NAME], objected to this. He further objected to any more interference by [NAME] in the grant of administration on the basis that the only evidence before the Court is that [NAME] had had a de facto relationship with the deceased on a bona fide domestic basis and they had had a child together. Mr [NAME] der [NAME] also pointed out that the estate is a relatively small one, having a value of approximately $102,000 nett. 7 Part 78 rules 29 and following are in the division of the Probate rules dealing with grants of administration during minority. It is possible for a person to make his or her executor a person who is under 18 years of age. If that occurs, then the Court in the first instance makes a grant durante minore aetate (dma) until the nominated executor attains his or her majority. 8 The practice for centuries in such cases has been to distinguish between the case where the named executor is an infant (under seven years) or a minor (between 7 and 18). In the latter case, the minor may elect a guardian who, if he or she consents, may be given a grant dma. Ordinarily, the grant is to be made to the next of kin of the minor, but if that next of kin is a minor or there are good reasons for passing over the next of kin, then some other person may be appointed. It is all a matter for the discretion of the Court subject to those general guidelines; see for instance Re Ewing (1828) 1 Hag Ec 381; 162 ER 619; Re Weir (1862) 2 Sw & Tr 451; 164 ER 1070 and Re Stephenson (1866) LR 1 P & D 287. The subject matter is covered in Tristram and Cootes Probate Practice (Butterworths, London, 1946) pp 252 and following. 9 The English authorities have been accepted in Australia; see for instance Re Dillon's Infants (1891) 7 WN (NSW) 131. 10 Part 78 rules 29 to 31 deal with the situation of a grant dma: they do not have any wider operation. 11 The next question is whether [NAME] is entitled to apply to become the tutor of [NAME] so that [NAME] can defend the proceedings brought by her mother for administration. 12 I have given this some deep thought. It seems quite clear that if [NAME] is not appointed [NAME]'s tutor, no-one else will act on [NAME]'s behalf and the consequence will be that there will be a grant of administration to her mother without contest. If [NAME] is correct in her views, this will mean that [NAME] will miss out on her inheritance by default. 13 However, the other side of the picture is: (a) the estate is only a relatively small one and is not to be consumed with costs; (b) there is no evidence to suggest that what [NAME] is really doing is in [NAME]'s best interests rather than her own; (c) [NAME], if able to make her own decision after being properly advised by an independent adviser, may well take the view that it is better for her mother to take the inheritance and look after [NAME] rather than [NAME] having the money on trust; (d) that there is no substantial evidence to this date put forward by [NAME] against [NAME] being a de facto within the meaning of the Wills Probate and Administration Act 1898; and (e) conversely, there is fairly strong evidence from [NAME] that she is such a de facto. 14 The definitions of "de facto relationship" and "de facto wife" in section 32G of the Wills Probate and Administration Act 1898 do not refer to the relevance of a child of the relationship having been produced. However, where there is evidence that a child was produced and that the child appears to be living with both parents, that must be thought to be fairly substantial evidence of a de facto relationship. 15 In all these circumstances it seems to me that to permit [NAME] in any guise to be involved in the litigation on the ostensible behalf of [NAME] would really be to let a third party interfere in someone else's affairs and someone else's litigation. 16 Accordingly, despite [NAME]'s ingenuity in bringing the application that he has, in my view I should not grant the application. I now remit the application for grant of administration to the Registrar to make the grant if he thinks it appropriate. ********************

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