SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Civil)
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In the Estate of GORDON STUART LEE (DECEASED)
 SASC 139
Judgment of The Honourable Justice Stanley
17 August 2012
SUCCESSION - EXECUTORS AND ADMINISTRATORS - OTHER
Application pursuant to section 67 of the Administration and Probate Act 1919 (SA) by the
administrator of a deceased's estate for an order dispensing with requirements to pay over
money to the Public Trustee in accordance with section 67 of the Act - applicant obtained
order for letters of administration of the estate of the deceased, the applicant's father, with
the will annexed for the use and benefit of the universal devisee and legatee under the will,
the applicant's mother.
Held: Application granted. Beneficiaries of the estate properly protected - beneficial ro
expedient to make order dispensing with obligation on part of applicant to comply with
requirements of section 65.
Administration and Probate Act 1919 (SA) s 31, s 56, s 65, s 67, referred to.
IW v City of Perth (1997) 191 CLR 1; In the Estate of Freebairn (2005) 93 SASR 413; In
the Estate of Richter (Deceased)  SASC 124, discussed.
In the Estate of Raymond Charles Estall (Deceased)  SASC 188, considered.
Applicant: ANTHONY REECE LEE Counsel: MR D HOWARD - Solicitor: GARY PEARCE
Interested Party: PUBLIC TRUSTEE Counsel: MS J HILL - Solicitor: CROWN SOLICITOR FOR
THE STATE OF SOUTH AUSTRALIA
Hearing Date/s: 14/08/2012
File No/s: PROGR-12-822
In the Estate of GORDON STUART LEE (DECEASED)
 SASC 139
1 This is an application pursuant to s 67 of the Administration and Probate
Act 1919 (SA) (“the Act”) by the administrator of a deceased’s estate for an order
dispensing with the requirement to pay over money to the Public Trustee in
accordance with s 65 of the Act. Section 65 requires an administrator to deliver
property held on behalf of a beneficiary who is not sui juris to the Public Trustee.
2 Gordon Stuart Lee (“the deceased”) died on 14 December 2011. He was
survived by his wife, Vera May Lee (“Vera”) and his son Anthony Reece Lee
(“Anthony”), the applicant in this matter. Another son, Warrick Gordon Lee
(“Warrick”) predeceased his father in January 2007, leaving a wife and two
children who are all presently living.
3 The will of the deceased appointed Vera as the sole executor and also made
her the universal devisee and legatee.
4 Vera suffers from dementia. She is unable to administer the estate.
Accordingly, she was unable to take the grant of probate. Anthony applied for
and received in her favour an order for letters of administration of the estate of
the deceased with the will annexed for the use and benefit of Vera during her
incapacity. By affidavits sworn by Anthony on 26 March 2012 and 28 June 2012
he deposed to the facts giving rise to the within application.
5 By a grant made in April 2006 Anthony was appointed Vera’s attorney
pursuant to an enduring power of attorney. That grant has not been revoked
subsequently. Anthony has tended to the day-to-day administration of his
mother’s financial affairs since January 2010 due to her incapacity, and the
inability of the deceased from that time to manage Vera’s financial affairs.
6 The assets of Vera consist of real estate at Brooklyn Park valued by the
Valuer-General at $420,000, bank savings of $136,659, three term deposits
totalling $156,532 and a share portfolio in 27 listed companies valued at 14 April
2012 in the sum of $368,640.
7 The grant of letters of administration of the estate of the deceased was made
on 12 April 2012. The net estate of the deceased disclosed in the statement of
assets and liabilities records a value of $2,305,440.09. The gross value of the
estate in South Australia is $886,116.49. The South Australian estate largely
consists of cash or term deposits in three banks, and shares in five listed
Stanley J  SASC 139
companies. The estate outside South Australia consists of a term deposit of
$6,675.34 and shares in listed companies both in Australia and overseas.
The legislative scheme
8 The applicants seek an order under s 67 of the Act that they not be bound
by s 65 of the Act, which section relates to the duty of the administrator of the
estate to pay over money and deliver property belonging to a person who is not
sui juris to the Public Trustee after a certain period of time. Section 65 provides:
65—Administrator to pay over money and deliver property to Public Trustee
(1) Every administrator who is possessed of or entitled to any property within this
State, whether personal or real, belonging to any person who—
(a) is not sui juris, or
(b) is not resident in this State, and has no duly authorised agent or attorney
shall deliver, convey, or transfer such property to the Public Trustee immediately
after the expiration of one year from the date of the death of the intestate or
testator, or within six months after such sooner time as the same or such portion
thereof as is available for that purpose, has been sold, realised, collected, or got in.
(2) The Public Trustee shall then administer such property according to law, and in
accordance with any will affecting such property.
(2a) The Public Trustee may, in his discretion, (but subject to the provisions of any will
or instrument of trust) realise, or postpone the realisation of, any real or personal
property delivered, conveyed or transferred to him under subsection (1) of this
(3) This section shall not apply in any case where the administrator is a limited
company incorporated or taken to be incorporated under the Corporations Act 2001
of the Commonwealth, and is acting as administrator in pursuance of any powers
granted to it by any Act.
(4) This section shall not apply to an administrator acting under any probate or
administration not granted by the Supreme Court but sealed with the seal of the
Supreme Court in pursuance of the provisions of section 17 of this Act.
(5) Subject to the provisions of any will or instrument of trust, the Public Trustee may,
if he is satisfied that it will be advantageous to the beneficiaries, authorise the sale
of any trust property, not exceeding four thousand dollars in value, to the
administrator, or to the administrator conjointly with any other person,
notwithstanding that the property has not been offered for sale by public auction or
9 Section 67(1) provides a dispensing power and is relevantly in the
67—Judge may dispense wholly or partially with compliance with section 65
 SASC 139 Stanley J
(1) A Judge may, on being satisfied by affidavit that it is beneficial or expedient so to
(a) that any administrator, or proposed administrator, shall not be bound by
section 65; or
(b) that any administrator, or proposed administrator, shall not be bound by the
said section 65 until after a certain time to be mentioned in the order.
10 As is apparent, s 67 provides that a judge may, being satisfied that it is
“beneficial and expedient so to do”, order that an administrator not be bound by
s 65. The applicants contend that an order should be made that they not be bound
by s 65 of the Act, as the protection afforded by s 65 to a beneficiary who is not
sui juris requiring an administrator to pay the funds to the Public Trustee, is not
required in the circumstances of this matter. That application is not opposed by
the Public Trustee. Before returning to address this contention and the merits of
the application, it is appropriate to say something about the legislative scheme
concerning the relevant provisions of the Act.
11 Section 65 seeks to protect a person where an administrator, not an
executor, has been appointed by the Court to administer an estate where a
beneficiary is not sui juris. The protection is effected by obligating the
administrator to convey the property due to such a beneficiary to the Public
Trustee. In enacting s 67 of the Act, Parliament conferred on the Court the
power to relieve the administrator from the obligation under s 65 when it is
“beneficial and expedient so to do”.
12 It is clear that s 65 has, at least in part, a beneficial and remedial purpose. It
is settled that beneficial and remedial legislation is to be interpreted as widely as
its terms permit.
13 In IW v City of Perth,1 Brennan CJ and McHugh J said in a joint judgment:2
[It is a] rule of construction that beneficial and remedial legislation … is to be given a
liberal construction. It is to be given “a fair, large and liberal” interpretation rather than
one which is “literal or technical”. Nevertheless, the task remains one of statutory
construction. Although a provision of the Act must be given a liberal and beneficial
construction, a court or tribunal is not at liberty to give it a construction that is
unreasonable or unnatural.
14 Section 65 has been considered in two decisions of this Court in In the
Estate of Freebairn3 and In the Estate of Richter (Deceased).4
(1997) 191 CLR 1.
(1997) 191 CLR 1 at 12.
(2005) 93 SASR 415.
 SASC 124.
Stanley J  SASC 139
15 In Freebairn5 and in Richter,6 the Court considered the meaning of the
phrase “beneficial or expedient”.
16 In Freebairn, Besanko J concluded that the expression required a careful
consideration of the facts of the particular case. The important consideration is
the due and proper administration of the estate. That was in the context of an
application pursuant to s 31(10) of the Act for an order dispensing with the
requirement that an administrator provide a surety in accordance with the
obligation under s 31(1) of the Act.
17 In Richter, Gray J, after analysing Freebairn, concluded that there are
important differences between the use of the expression as it appears in different
places in the Act. Accordingly, s 65 permitted the court to contemplate
considerations other than the due administration of the estate. His Honour
concluded that on an application pursuant to s 65 the key consideration is
whether a beneficiary who is not sui juris is properly protected. This Court has
subsequently followed the same approach in In the Estate of Raymond Charles
18 Anthony is a retired cost estimator. He has been managing Vera’s financial
affairs since January 2010.
19 Vera executed her own last will and testament on 17 November 1998
whereby she appointed the deceased as the sole executor of her estate, and in the
event of him predeceasing her, she appointed Anthony and Warrick as executors.
By her will she made pecuniary legacies to Anthony and Warrick, her daughters-
in-law Elaine Ethel Lee and Julie Kay Lee, her grandchildren Craig Derrick Lee,
Tracey Michelle Parkinson, Cassandra Lee and Sonja Lee, and her niece Amanda
Louise Surman. The residue and balance of her estate was bequeathed to the
deceased. In the event that her husband predeceased her, she made further
pecuniary legacies to her grandchildren, daughters-in-law and niece, and left the
residue and balance of her estate to be divided equally between Anthony and
20 Since the death of the deceased, Vera has not remarried nor does she have a
putative spouse, nor, by reason of her mental incapacity, is she able to execute a
21 Craig Derrick Lee, Tracey Michelle Parkinson, Cassandra Lee, Sonja Lee,
Elaine Ethel Lee and Amanda Louise Surman, have consented to the within
(2005) 93 SASR 415.
 SASC 124.
 SASC 188.
 SASC 139 Stanley J
22 Since November 2011 Anthony has managed Vera’s medical affairs. Vera
has resided at the Kirkholme residential aged care facility at Goodwood since
November 2006. Anthony deals with regular correspondence from Kirkholme
about day-to-day medical matters for his mother. He has been his mother’s
nominee with the Department of Health and Ageing since January 2012. He is a
signatory to her bank account and manages her savings account and term deposit
accounts as well as her share portfolio.
23 Vera is 93 years of age. She receives an annual income from bank interest
and share dividends of approximately $37,000. She does not receive the aged
pension. She has no liabilities. Her expenses exceed her income. Last financial
year the deficit was approximately $3,000. Those expenses primarily consist of
daily fees for aged care at Kirkholme. Anthony proposes to meet the shortfall
out of the deceased’s estate. Prior to his death, the deceased had been meeting
24 Anthony has a net income with his wife of about $25,000 per annum. They
receive dividends from shareholdings and bank interest from savings. In
addition, Anthony’s wife, Julie Lee, receives an annuity of $3,300 and a part
aged pension. They generally draw $10,000 or $15,000 per annum from
superannuation funds. They have sufficient income to meet their expenses.
They have no liabilities. Their combined net assets are valued at $1,173,000
consisting of real estate at West Beach, bank savings, shares and a substantial
balance in superannuation funds.
25 I am satisfied Anthony is financially secure.
26 All of the work undertaken by Anthony in managing Vera’s financial affairs
has been done without charge or payment of a fee.
27 I am satisfied that if an order is made as sought by Anthony, Vera’s affairs
will continue to be managed by him in a competent manner without additional
cost to Vera.
28 On the other hand, if an order is not made and the property of the estate
currently under administration is transferred to the Public Trustee for future
management and administration, it will be subject to commission charged by the
Public Trustee for the performance of this function together with a commission
taken by the Public Trustee on the income received from the investment of funds
comprising the estate.
29 Anthony indicates that he understands that, if an order is made as sought, he
will be obliged to lodge an administration account with Public Trustee pursuant
to s 56 of the Act. I am satisfied he will do so.
30 I note that the application is not opposed by the Public Trustee.
Stanley J  SASC 139
31 In all these circumstances, I am satisfied that by making the orders sought,
Vera, as the beneficiary of the deceased’s estate, will be properly protected. It
will be beneficial to the interests of Vera and expedient that the funds due to
Vera be joined with her funds, administered by Anthony pursuant to his
appointment as Vera’s attorney.
32 Accordingly, I made an order dispensing with the obligation on the part of
Anthony to comply with the requirements of s 65 of the Act.