Kepreotis Estate – Application of Kepreotis and Anor

[2010] NSWSC 1353

CITATION:	Kepreotis Estate – Application of Kepreotis & Anor [2010] NSWSC 1353 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	22 November 2010
JUDGMENT DATE :	22 November 2010
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Palmer J
EX TEMPORE JUDGMENT DATE:	22 November 2010
DECISION:	Plaintiffs appointed administrators cta.
CATCHWORDS:	SUCCESSION – LETTERS OF ADMINISTRATION – Plaintiffs claim assets of deceased’s estate held on trust for them – executor named in will renounces probate – no one taking under will willing to apply for grant – whether necessary or convenient to appoint Plaintiffs as administrators.
LEGISLATION CITED:	Probate and Administration Act 1898 (NSW) – s 74
CATEGORY:	Principal judgment
PARTIES:	Victor Peter Kepreotis (First Plaintiff) Phillip Peter Kepreotis (Second Plaintiff)
FILE NUMBER(S):	SC 2010/141862
COUNSEL:	Ms J. Merkel (Plaintiffs)
SOLICITORS:	Boyd Olsen Lawyers (Plaintiffs)

2010/141862 Kepreotis Estate – Application of Kepreotis & Anor

JUDGMENT – Ex tempore

22 November , 2010

1 The Plaintiffs’ apply for the grant of Letters of Administration with the will annexed of the estate of the late Gladys Pearl Kepreotis.

2 The executrix named in the will has renounced a grant of probate. I am satisfied that there is no one else interested in the estate under the will who is willing to apply for a grant.

3 The Plaintiffs do not claim an interest in the estate by the terms of the deceased’s will. On the contrary, they say that most of the assets which ostensibly form part of the deceased’s estate were, in fact, held by her as life tenant only under the will of her late husband and that, although legal title in the assets was apparently vested in her, she in fact held those assets as trustee for them under the terms of her late husband’s will. There is express support for that contention in Clause 3 of the deceased’s will.

4 However, the difficulty is that no one having a direct interest by succession in such assets of the deceased as were beneficially owned by her (whatever those assets might be) is willing to undertake the administration of the estate. There is no one other than the Plaintiffs who is willing to collect the assets held in the name of the deceased, ascertain by a tracing exercise what is beneficial property of the estate and what is beneficially the property of the Plaintiffs’, and administer the estate accordingly.

5 Ms Merkel of Counsel, who appears for the Plaintiffs, submits that, in a case such as the present, the Court has a discretionary power under s 74 Probate and Administration Act 1898 (NSW) to make a grant of Letters of Administration to the Plaintiffs. Section 74 relevantly provides:

“ Power as to appointment of administrator

The Court may, in any case where a person dies:

… or

(c) leaving a will and having appointed an executor thereof, where such executor:
(i) is not willing and competent to take probate, …

if it thinks it necessary or convenient, appoint some person to be the administrator of the estate of the deceased or of any part thereof, upon the appointed person giving such security (if any) as the Court directs, and every such administration may be limited as the Court thinks fit.”

6 The section does not require the person appointed administrator to show an interest in the estate under the terms of the will. The Court must be satisfied only that the proper administration of the estate will be advanced by the appointment of the applicant as administrator.

7 In the particular circumstances of this case, I think it both necessary and convenient to exercise the general power conferred by s 74 Probate and Administration Act to appoint the Plaintiffs as administrators of the deceased’s estate with the will annexed. Even if all assets held in the deceased’s name are ultimately found to have been held on trust for the Plaintiffs so that the estate has no assets to distribute, at least by that process the estate will have been fully and duly administered.

8 Orders in accordance with Short Minutes of Order.

– oOo –

25/11/2010 - Substitute the word "apply" for the words "appeal from the decision of the Registrar refusing their application" - Paragraph(s) Paragraph 1.