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Published online by Cambridge University Press: 24 January 2025
1 (1977) 13 A.L.R. 351; [1977] A.E.G.R. 70-075; (1977) 51 A.L.J.R. 456.Barwick C.J., Mason and Murphy JJ. In this note page references are to the A.L.R. The writer gratefully acknowledges the help given by Mr Ric Lucas in preparing this note.
2 Hereinafter called the T.F.M. & G. of I. Act.
3 Easterbrook v. Young [1974] 1 N.S.W.L.R. 676.
4 Hereinafter the W.P.A. Act.
5 Case No. 690 of 1972 Equity; judgment delivered on 6 June 1974.
6 Easterbrook v. Young (1977) 13 A.LR. 351, 356, cf. 358, 364.
7 Id. 358 1. 15; cf. 358 1. 36.
8 Id. 357.
9 On this point cf. O'Hare, , “The Situs of the Interest in the Trust Estate” (1970) 7 University of Queensland Law Journal 57, 68-70, and Mahoney J. in Keys' case (690 of 1972 Eq. 6 June 1974)Google Scholar.
10 (1908) 6 C.L.R. 179; [1908] A.C. 371, on appeal from Victoria.
11 [1971] V.R. 534, 542.
12 Gowans J. points out that the emphasis on the need for the consent of beneficiaries who are sui juris is due to the fact that Commissioner of Stamp Duties v. Livingston (1964) 112 C.L.R. 12; [1965] A.C. 694 had not been decided, nor was there at that time a statutory trust for sale. After Livingston the same result could perhaps be reached without the active co-operation of the beneficiaries.
13 McPhail's case is discussed by R.A.S., (1972) 46 A.L.J. 36 and by R. A. Sundberg, “Assents by Personal Representatives to the Vesting of Real Estate” (1975) 49 A.L.J. 678.
14 Cf. R.A.S. (1972) 46 A.L.J. 36, 37.
15 (1977) 13 A.LR. 351, 356.
16 Williams, The Law Relating to Assents (1947) 4; Bryen v. Reus (1960) 61 S.R. (N.S.W.) 396, 399.
17 [1971] V.R. 534, and see Williams, op. cit. 116 ff.
18 This section was added in 1930.
19 Livingston's case (1964) 112 C.L.R. 12. It seems clear that the principle in Livingston's case applies to administrators as well as to executors.
20 Perpetual Trustee Company Limited and Others v. Commissioner of Stamp Duties, New South Wales (Shallard's case) [1976] A.E.G.R. 70-073; (1976) 7 A.T.R. 76.
21 Supra n. 12, 22.
22 Fung Ping Shan v. Tong Shun [1918] A.C. 403, 411; adopted in Purcell v.Deputy Federal Commissioner of Taxation (1920) 28 C.L.R. 77, 88.
23 See generally O'Hare, , “The Situs of the Interest in the Trust Estate” (1970) 7 University of Queensland Law Journal 57, 60Google Scholar.
24 Other sections which might bear on the question, but which, it is submitted, do not exclude the general law are:
S. 44 of the W.P.A. Act. This section vests the estate in the executor or administrator.
S. 46 of the W.P.A. Act.
S. 47 of the W.P.A. Act.
S. 49(1) of Division 2 of Part II of the W.P.A. Act (not the intestacy provision) has been repealed in relation to intestates dying after 1 January, 1955.
S. 11(1) of the Trustee Act 1925 (N.S.W.) applies only to executors.
S. 46 of the Trustee Act 1925 applies (by virtue of s. 5) to executors and administrators.
S. 49 (1)(a) of Division 2A of Part II of the W.P.A. Act provides that an administrator on intestacy holds on statutory trust for issue, and on trust for other relatives including the surviving spouse under s. 49(1)(a) (i)(d) Sixthly. However, s. 50 simply provides that the husband or wife “shall be entitled on the death of the other . . . to the following shares only:
where there is issue living at the death of the intestate
(i) in the case where such issue comprises or includes two or more children of the intestate, to one-third share of such property”.
This is the case which applied to the estate in Easterbrook v. Young. Literally, therefore it would appear that the administrator held in statutory trust for the issue, but, subject, inter alia, to ss. 61, 44 and 46A, of the W.P.A. Act, the surviving spouse was “entitled on the death of the other” to the estate. The Court in Easterbrook v. Young simply remarked that a T.F.M. order would vary “the statutory trusts” in the case of an intestacy. This requires justification in the case of a surviving spouse. Cf., too the judgment of the Court below in Easterbrook v. Young [1974] 1 N.S.W.L.R. 676, 678A.
In an important amendment to the W.P.A. Act the Wills Probate and Administration Amendment Act 1977 enacts a new scheme of intestacy for New South Wales. The new ss. 61B and 61C unify the rules relating to surviving spouses and other relatives into a single system, and these sections make it quite clear that the administrator holds in trust for all classes of beneficiary, thus eliminating one anomaly from the old Part II Division 2A which applied to Easterbrook v. Young. The news. 61B(l) also clarifies the position in relation to the applicability of s. 83 to real property passing on intestacy:
. . . the real and personal estate of that person shall, subject to the payment of all such funeral and administration expenses, debts and other liabilities as are properly payable out of that estate, be distributed or held in trust in the manner specified in this section, and the real estate of that person shall be held as if it had been devised to the persons for whom it is held in trust under this section.
25 E.g., Sha/lard's case, supra n. 20.
26 (1945) 46 S.R. (N.S.W.) 192.
27 Id. 209.
28 S. 61B(l ), (3), (4) of Part II Division 2A of the W.P.A. Act.
29 S. 61B(2) of Part II Division 2A of the W.P.A. Act.
30 [1961) S.R. (N.S.W.) 333, 343.
31 Id. 345.
32 Weir, “Administration De Ronis Non” (1936) 10 A.L.J. 13, 16.
33 Cf., O'Hare, , “The Situs of the Interest in the Trust Estate” (1970) 7 University of Queensland Law Journal 57, 68Google Scholar.
34 Unreported: 690 of 1972 Eq. dated 6 June 1974.
35 Supra.
36 [1931] N.Z.L.R. 1.
37 Administration Act 1969, s. 2(1) (N.Z).
38 L.R.C. 28, 1977.
39 Cf. Easterbrook v. Young [1974] 1 N.S.W.L.R. 676.
40 S. 14.
41 In s. 14(4) and (5) of the Bill.
42 At 17, 19-20.
43 [1967] 2 O.R. 586.
44 [1943] O.R. 778 (Court of Appeal).
45 At 591-592.
46 See too In re Monkman Estate [1920) 1 W.W.R. 376 (the shares in the cement company-379, 380).
47 Re De Roche Estate (1964) 49 W.W.R. 761 (Sask.); Re Kvasnak (Kvasna-kova) [1951] 3 D.L.R. 412; [1951) 2 W.W.R. (N.S.) 174; Re Hull Estate [1943]O.R. 778 (C.A.).
48 Hull's case [1943] O.R. 778, 782.
49 Lee, , The Bulletin 16 April 1977, 7Google Scholar.
50 The actual period within which an application must be made is, in most Provinces, six months from the grant. References are given in n. 67.
51 (1977) 13 A.L.R. 351, 358.
52 Ibid.
53 Id. 364.
54 Lee, , The Bulletin 7 April 1977, 7Google Scholar.
55 The first passage from 358 cited above-text ton. 51.
56 Also at 358.
57 At 364.
58 For a discussion of cases on completion of executorial duties see McPhail [1971] V.R. 534; Keys' case, unreported: Mahoney J., 6 June 1974 and cf. Anderson v. Williams [1956] N.Z.L.R. 657. It must be borne in mind that this question is linked with Stamp Duties Commissioner (Queensland) v. Livingston (1964) 112 C.L.R. 12 and to the body of authority dealing with the beneficiary's interest in an unadministered estate.
59 Supra n. 51.
60 Inheritance (Family Provision) Act 1938 (Eng.) ss. 2 and 4.
61 By way of the Intestates' Estates Act 1952 (Eng.) which added s. 2(1A) to the Inheritance (Family Provision) Act 1938 (Eng.), listing various circumstances in which the court could grant an extension of time, and the Family Provision Act 1966 (Eng.) which repealed s. 2(1A) and enacted a news. 2(1) which gave the court a general discretion to hear a late application.
62 (1970) 1 W.L.R. 89, 93-94.
63 (1977) 13 A.L.R. 351, 359. Nevertheless, the argument (358) based on s. 40B(3) of the W.P.A. Act is, with respect, persuasive, and suggests that in New South Wales, at least, the fact that the personal representative has become trustee is not sufficient to make affected assets unavailable for a late T.F.M. application.
64 S.5 (3) of the Family Provision Bill 1977 quoted above.
65 S.14 (7).
66 S. 4, Inheritance (Provision for Family and Dependants) Act 1975 (Eng.) and Ruttie's case [1970] 1 W.L.R. 89.
67 British Columbia
6 months: s. 11(1) of the Testator's Family Maintenance Act, R.S.B.C. 1960 c. 378. No provision for extension of time exists in British Columbia-cf. Re Hirsch [1977] 2 B.C.L.R. 216.
Manitoba
6 months: a judge may “if he deems it just, allow an application to be made at any time as to any portion of the estate remaining undistributed at the date of the application”. Ss. 15(1) and (2) of the Testator's Family Maintenance Act Manitoba Statutes c.T 50.
New Brunswick
6 months: terms similar to those in Manitoba-Testator's Family Maintenance Act R.S.N.B. 1973 c.T 4 ss. 14(1) and (2).
Newfoundland
6 months: terms similar to those in Manitoba-Family Relief Act R.S.Nfld. 1970 c.124 ss.14(1) and (2).
Nova Scotia
6 months: terms similar to those in Manitoba-Testator's Family Maintenance Act R.S.N.S. 1967 c. 303 ss. 13(1) and (2).
Ontario
The Dependant's Relief Act R.S.O. 1970 c. 126 s. 4(2) reads:
Where letters probate have been or are applied for by the wife or husband of the testator or a guardian on behalf of minor dependants, an application for an allowance for such wife or husband or for such minor dependants shall be made at the time of applying for letters probate and in every other case the application shall be made within three months after the death of the testator, but the judge, if he deems it just, may allow an application to be made at any time as to any portion of the estate remaining undistributed at the date of the application.
68 Family Protection Act 1955, s. 9(2).
69 Queensland: 6 months “unless the court otherwise directs”:
Queensland Succession Acts, s. 89(8) and (9).
South Australia: 6 months:
Inheritance (Family Provision) Act 1972, s. 8.
Western Australia: 6 months:
Inheritance (Family and Dependants Provision) Act 1972, ss. 7(2) and 8(1). Distributed property can be affected in certain cases under s. 65 of the Trustees Act 1962.
Tasmania: 3 months:
Testator's Family Maintenance Act 1912, s. 11.
A.C.T.: 12 months:
Family Provision Ordinance 1969, s. 9.
N.T.: 12 months:
Family Provision Ordinance 1970, s. 9.
70 S. 4 of the Inheritance (Provision for Family and Dependants) Act 1975 (Eng.).
71 Cf. Mackay, “Family Provision on Death” (1976) 126 New Law Journal 228, 229. The Law Commission's Second Report on Family .Property: Family Provision on Death (Law Com. No. 61, 31 July 1974, para. 144, p. 37 reads:
The personal representatives are protected if, no application having been made, they distribute any part of the estate after the expiration of the six months' period, but this is without prejudice to any right to recover any part of the estate distributed. A time limit for applications must balance the interests of the possible applicants for family provision against the need for certainty in administering the estate, and we think the present balance is fair. We make no proposal for change.)
72 S. 14-discussed 50 ff. of the L.R.C. Report.
73 The Machinery of Succession (1977) 84Google Scholar.
74 (1962) 107 C.L.R. 9, 19.
75 (1976) 9 A.L.R. 93, 101.
76 The passages in Keys' case which deal with the construction of the legislation were quoted in Easterbrook v. Young [1974] 1 N.S.W.L.R. 676 and Easterbrook v. Young (1977) 13 A.L.R. 351.