In the Estate of Henry Darton Avery Late of 5a Kanangra Court, Reid In the Australian Capital Territory, Pensioner Deceased Re An Application Under Section 97a of the Administration and Probate Ordinance 1929 P [1986] ACTSC 56 (1 July 1986)

SUPREME COURT OF THE ACT

In the Estate of HENRY DARTON AVERY Late of 5A Kanangra Court, Reid in the
Australian Capital Territory, Pensioner Deceased
In the Matter of an application under section 97A of the Administration and
Probate Ordinance 1929
P. No. 403 of 1985
Executors and Administrators - Wills

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Executors and Administrators - Public Trustee Ordinance 1985 - Public Trustee (Miscellaneous Amendments) Ordinance 1985 - Powers of Public Trustee.

Executors and Administrators - Administration and Probate Ordinance 1929 - S97A - power of Court to give opinion and directions as to administration of estate - S.89(1) - application of general law.

Wills - inference to be drawn by absence of will from testator's effects - whether revocation of will revives earlier will.

In the Will of Broomhead (1947) VLR 319

In the Will of Podger (1957) VR 275

Halsbury's Laws of England 4th ed. Vol. 50 paragraph 300.

HEARING

CANBERRA
1:7:1986

ORDER

The Court expresses the opinion pursuant to s.97A(1) of the Ordinance that the Public Trustee is obliged to administer the estate of the deceased as on intestacy.

DECISION

This is an application by the Public Trustee under s.97A of the Administration and Probate Ordinance 1929 ("the Ordinance") for the opinion of the Court upon a question which has arisen in the course of the Public Trustee's duties as administrator of the estate of the late Henry Darton Avery. I am told that this is the first occasion upon which the opinion of the Court has been sought in the fifty years since s.97A was inserted into the Ordinance.

2. S.97A is contained within Part VI of the Ordinance. That Part originally bore the title "Curator of Estates of Deceased Persons". The office of the Curator, however, has been taken over by the Public Trustee since the coming into effect on 28 October 1985 of the Public Trustee Ordinance 1985 and the Public Trustee (Miscellaneous Amendments) Ordinance 1985.

3. The provisions of Part VI of the Ordinance established a scheme for the function, powers and duties of the former Curator in relation to the estates of deceased persons in the Australian Capital Territory. I have been told that a similar scheme operates or operated in the Northern Territory. Several of the provisions of Part VI were omitted by the Public Trustee (Miscellaneous Amendments) Ordinance 1985. I shall return to the legislation in a moment.

4. The evidence before me in affidavit and documentary form establishes the following facts. Henry Darton Avery (the deceased) lived from his early childhood until about 1971 in the Queanbeyan area. From 1971 to 1974 after his retirement from the workforce he lived at Ashfield and Liverpool in New South Wales. Thereafter he returned for a short time to Queanbeyan until he moved to Reid in the Australian Capital Territory. He remained there until his death on 27 September 1983. Amongst the effects of the deceased found shortly after his death were a will dated 13 March 1962 and another will dated 17 January 1969. Subsequent to the execution of those wills, however, the deceased had on 5 May 1972 executed a further will in the offices of a firm of solicitors at Ashfield. The deceased had uplifted that will from the solicitors on 5 October 1972. That will was not found amongst his effects and has not been found after proper search and enquiry. A copy of the will executed on 5 May 1972 is in evidence. Shortly, it provides for legacies of $500 to each of two sisters and for the remainder of the estate to go to five named charities. The value of the estate is approximately $14,200. This amount is held in the trust account of the Public Trustee who seeks the directions of the Court as to the manner of distribution.

5. On 13 March 1984 the then Curator of Estates of Deceased Persons elected to administer the estate of the deceased pursuant to s.87C of the Ordinance. It is convenient to treat the election of the Curator as that of the Public Trustee. Section 87C(1) is still in force and provides as follows:

"87C(1) The Public Trustee may file in the office

of the Registrar an election, under the
hand of the Public Trustee, to administer
the estate of a deceased person if -

(a) the person left property within the
Territory;

(b) the gross value of that property does not,
in the opinion of the Public Trustee,
exceed $30,000.00;

(c) probate of the will, or administration of
the estate, of the person has not been
granted by the Court to any person; and

(d) the Public Trustee is entitled under the
next succeeding section to apply for an
order to collect and administer the estate
of the person."

6. Section 87C(4) provides as follows:

"(4) Where the Public Trustee has filed an
election, the estate of the person vests in
the Public Trustee, and the Public Trustee
has the powers and duties that he would
have had if the Court had, under the next
succeeding section, granted to the Curator
an order to collect and administer the
estate of the person."

7. Section 88 sets out the circumstances in which the Court may on application of the Public Trustee, grant to the Public Trustee an order to collect and administer the estate of any deceased person leaving real or personal estate within the jurisdiction.

8. Section 89 provides for the effect of an order to collect and administer in the following terms:

"89(1)Where an order to collect and administer
the estate of any deceased person is
granted, the Public Trustee shall have the
same powers, rights, and obligations in
respect of the estate, except as otherwise
expressly provided, as he would have had if
administration had been granted to him, and
the estate of the deceased shall vest in
him."

9. The effect of these provisions is that where the Public Trustee has filed a valid election pursuant to s.87C of the Ordinance, then the Public Trustee has under s.89 the same powers, rights and obligations in respect of the estate, except as otherwise expressly provided, as would have had if administration had been granted to him, and the estate of the deceased shall vest in him. Further, the general law applying to the administration of the estates of deceased persons applies to the administration of estates by the Public Trustee.

10. There is an accepted principle that the natural inference to be drawn from the fact that a will which is last known to be in the possession of the testator and which is not forthcoming at the time of his death is that it was destroyed by the testator with the intention of revoking it: In the Will of Broomhead (1947) VLR 319 and In the Will of Podger (1957) VR 275. However, when other facts are known, the presumption, if it can be called that, may be displaced and the inference to be drawn will depend upon an examination of all the evidence. In the two Victorian cases just cited, the facts found went well beyond the facts in the case before me. There is nothing before me to shed any light upon the intention of the deceased when he removed the will from the possession of the solicitors on 5 October 1972. Although there was found amongst his belongings some notes in his handwriting which could be construed as evidencing a testamentary intention, they do not show an intention not to revoke the will of 5 February 1972. The notes bear an address, 134 Collett Street, Queanbeyan, at which address the deceased did not live after June 1971. I conclude that the notes were made well prior to the execution of the will on 3 February 1972. There is therefore nothing to lead me to any conclusion other than that the absence of the will from the effects of the deceased at the time of his death gives rise to an inference that the will was destroyed by the deceased with the intention of revoking it.

11. The remaining question to be determined is the effect of the revocation of the 1972 will. Where a will has been revoked by a later will, the revocation of the second will, whether by destruction or by codicil, does not have the effect of reviving the first will: Halsbury's Laws of England 4th ed. Vol. 50 paragraph 300. Accordingly, the revocation of the 1972 will does not have the effect of reviving either of the earlier wills. The deceased must be regarded as having died intestate and his estate is to be administered accordingly.

12. The Court therefore expresses the opinion pursuant to s.97A(1) of the Ordinance that the Public Trustee is obliged to administer the estate of the deceased as on intestacy.