Court dismisses motion for neutral administrator in probate dispute due to lack of impartiality among proposed parties.

[*613] 1984 April 18

(NIKITAS, P.D.C.)

IN THE DISTRICT COURT OF NICOSIA

Costas Patsalides and Others,

Plaintiffs-Applicants,

v.

Andreas K. Kyriakides and

Others,

Defendants-Respondents.

(Action No. 826/81).

Administrators of Estate - Appointment of, pendente lite of a probate action - Principles applicable - Practice of selection of a neutral and impartial person – The Administration of Estates Law, Cap. 189, section 20 - Power of Court thereunder.

L. Papaphilippou, for Plaintiffs-Applicants.

A. Magos, for Defendant –Respondent 1.

A. Eftychiou, for Defendants-Respondents 2 and 3.

RULING

The ruling of the Court was delivered by:-

NIKITAS, P.D.C.:- This is a motion by plaintiffs in a probate action for the appointment of administrators pendente lite of the estate of Iphigenia Patsalidou née Kyriakidou late of Strovolos. The Court is invited to appoint two administrators, namely, Mr Simos Papadopoulos a clerk in the employment of plaintiffs’ counsel and another person to be nominated by defendants to act on their behalf.

The facts that give rise to the application may be stated fairly briefly. Plaintiff 1 is the husband of [*614] the deceased and plaintiffs 2 and 3 are children of a predeceased brother. The first and second defendants are the deceased’s brothers whereas defendant 3 is the daughter of another predeceased brother. By their action the plaintiffs seek to prove a will executed by the deceased on February 7, 1977. It will be observed that the testatrix died on 16th January 1981, and by her will she bequeathed

to her husband all her personal chattels and movables “τα ευρισκόμενα εντός της οικίας μου εις Στρόβολον τα οποία συνίστανται εξ’ ολοκλήρου της επιπλώσεως, ρουχισμού, σκευών, χρυσαφικών και όλων των

προσωπικών μου αντικειμένων”.. She also appointed plaintiff 1 her executor.

In his statement of defence defendant

1 after raising a preliminary point attacks the validity of the will on the following grounds: That when the deceased made her will she was suffering from an incurable disease and was in a state of depression and that in consequence she was not cabable of exercising her judgment in the matter; that the will was obtained by undue influence; and that the formalities of the law concerning the making of the will had not been complied with. In his counter-claim the defendant asks the Court to set aside the will and grant him letters of administration of the estate of his deceased sister.

Defendants 2 and 3 allege in their separate defence that at the time the will was executed the deceased was not of sound mind, memory and understanding and that the will was obtained by undue influence. They claim a declaration by way of counterclaim that the will is null [*615] and void and for an order granting letters of administration to defendant 3 solely and/or together with any other person.

It appears that the principal asset of the estate is a house at Strovolos. It has a yard planted with trees. The property was the subject matter of litigation between the deceased during her lifetime and defendant 1. The case is reported in (1979) 1 C.L.R. 71. In a nutshell the facts were that defendant 1 purporting to act under a power of attorney signed by the deceased in April 1971 registered the whole of the property in question in his name as a gift and further withdrew from the deceased’s Bank account the sum of £950. - which he kept for his own benefit. The Supreme Court set aside the registration on the ground, inter alia, that the transaction was unconscionable and confirmed the judgment of the District Court ordering defendant 1 to refund the moneys he collected from the deceased’s Bank.

So far the house has not been re-registered in the name of its rightful owner because, as plaintiff 1 says in

his affidavit accompanying the motion, defendant 1 mortgaged the property for securing a loan made to him by a certain

Mr. Symeonides. Nor has he repaid the amount due under the judgment of the Court. It is to be noted that these allegations are denied by defendant 1 in rather general and vague terms. It is the case for the plaintiffs that for the reasons given in the affidavit of plaintiff 1 it becomes necessary to appoint administrators pending suit for preserving the estate. I cite the relevant part of plaintiff’s evidence: [*616]

"

9-· Η εν λόγω οικία και τα δέντρα εις την αυλήν της χρειάζονται, φροντίδα και

περιποίησιν,

10- Η

εκκαθάρισις των εν λόγω προβλημάτων δεν δύναται να γίνη άνευ διαχειριστών. Προς

τοις άλλοις ο εναγόμενος αρ. 1 είναι ο μόνος χρεώστης προς την περιουσίαν και

είναι το πρόσωπον που έχει δημιουργήσει όλας τας περιπλοκάς διά της υπ' αυτού

οικειοποιήσεως περιουσιακών στοιχείων της αποβιωσάσης και την δημιουργίαν της

υποθήκης επί της οικίας.

11- Είναι

επείγον όπως εκκαθαρισθή η περιουσία διότι αύτη επιβαρύνεται με τόκους επί της

υποθήκη; και ο εναγόμενος 1 στερείται οιουδήποτε περιουσιακού στοιχείου. Εάν

πρόκειται να διασωθή η περιουσία πρέπει να ληφθούν μέτρα όσον το δυνατόν

ενωρίτερον άλλως υπάρχει κίνδυνος να αναλωθή με τους τόκους και την αδυναμίαν

εισπράξεως παρά του εναγομένου 1" .

Defendants

2 and

3 conceded for the reasons stated in the affidavit of plaintiff 1 that a temporary grant of administration is necessary in the present case and suggested that the husband of defendant 3 be appointed as co-administrator with plaintiffs’ nominee. Though defendant 1 accepted that the movable property left by the deceased has to be looked after he put forward a number of reasons why an appointment of administrators should not be made. He said (see para. 3 of his affidavit) that defendant 2 died after the institution of the action and in consequence [*617] the action in its present form cannot be continued. It has to be said here and now that the objection cannot in any event be sustained for letters of administration of the estate of defendant 2 were duly granted to the third defendant. It is also apparent from the record that the amendments necessitated by the death of defendant 2 have been allowed by the Court.

It has also been argued that pending the hearing of the preliminary question raised in the defence this application cannot proceed and furthermore plaintiff 1 has no right to make an application of this kind to the Court before it has an opportunity to adjudicate upon the other issues contained in the statement of defence of the first defendant.

In his written address counsel for defendant 1 stressed that Mr. Simos Papadopoulos is an employee in the law office where the will - subject matter of the action - was made and further that through the same law office a number of actions were brought by plaintiff

1 against his client. Accordingly Mr. Papadopoulos cannot be considered as an independent and neutral person fit for appointment. In counsel’s submission Mr. Ktimatias must also be excluded as he is the husband of defendant 3 who has a direct interest in the result of the case. Finally it was submitted that defendant 1 has priority to a grant being the only surviving brother of the deceased.

I shall consider next the implications of s.20 of the Administration of Estates Law, Cap. 189 under which [*618] decisions on the subject and the practice of English Courts.

There is ample authority for the proposition that the usual practice of English Courts is to select a neutral and impartial person for ensuring that the interests of all parties concerned are duly safeguarded. The law on the matter is stated in Williams on Executors and Administrators 14th Ed. para. 351, p. 207 in these terms:

“It is the practice of the Court, though there is no absolute rule to that effect, on decline, unless the parties consent, putting a litigant party in possession of the property by granting administration pending suit to him. The course usually followed is to make the grant, where requisite, to a nominee presumed to be indifferent between the contesting parties”.

This statement of the law is founded on a number of cases appearing on the footnotes on the same page.

Further the following passage occurs in Halsbury’s Laws of England, Vol. 16, 3rd ed., para. 459 at p. 246:-

“It is not the usual practice of the Probate Division, except by consent, to appoint a party to the action either as administrator or as receiver; but where it is clearly desirable, [*619] a party to the action may be appointed. If the parties will not agree, the appointment of a neutral administrator is left to the registrar”.

The Court will of course have to be

satisfied before making an appointment that the need for it exists. See Horrell v. Witts and Plumley (1886) L.R.1 P. & D.103 and the more recent case In the Estate of Day (1940)

2 All E.R. 544.

In Re Haslip (1958) 2 All E.R. 275 it was held that the Court has power to appoint a sole administrator pendente lite although a life or minority interest may arise, because of his special position in which he is under the constant supervision of the Court.

Coming back to the present situation I am satisfied that this is a case which, owing to its circumstances, calls for the appointment of an administrator pendente lite for preserving the estate. In view of the express provisions of s.20 of the law the objections of defendant 1 stemming from the nature and content of his statement of defence bear no relevance to the question as to the necessity of making a temporary grant of administration.

The suggestion of counsel for the appointment of defendant 1 cannot be accepted. It will be undesirable to appoint a person who is allegedly heavily indebted to the estate and who, according to the judgment of the Supreme Court, was the protagonist in an unconscionable transaction. In my judgment it will be equally undesirable to grant [*620] administration to the persons proposed by the other litigants. Without casting any aspersions on those persons I believe they cannot in the circumstances be “presumed to be indifferent between the contesting parties”. In the result the application is dismissed. There will be no order as to costs.

Application dismissed with no order as to costs.