Court holds attorney not liable for inventory filing; duty rests with administrator under Cap. 192.

[*454] 1985 May 11

(P. KALLIS, D.J.)

IN THE DISTRICT COURT OF NICOSIA

In the matter of the Probates (Re-sealing)

Law, Cap. 192,

and

In the matter of Erine Antoniou Loura,

Deceased.

(Application No. 437/62).

Administration of Estates - The Probates (Re-sealing) Law, Cap. 192 - Duty to file inventory and accounts - Whether on the administrator or his attorney.

Construction of statutes - Principles applicable – A statute is meant to be operative and workable, the presumption that it does not intend unjust or absurd results and the principle that unjust or unreasonable results should be as far as possible avoided.

M. Montanios - Applicant, appears in person.

RULING

The following ruling was delivered by:-

P. KALLIS, D.J.:- On the 25th October, 1977, letters of administration of the estate of the deceased Erine Louca were granted by the High Court of Justice in England to Antonis Louca (“the administrator”). By virtue of a power of attorney executed on the 24th August, 1982, the administrator appointed Mr. Michael Montanios, a practising advocate, (“the attorney”) as his attorney with power and authority to apply to the competent court in Cyprus “for the reseal of the English Grant of Letters of Administration of the above deceased and generally to administer the Cyprus estate of the said deceased in accordance [*455] with the Law”. Indeed, the Attorney applied to the Court for the resealing of the above letters of administration and his application was granted on the 8th November, 1982.

By a notice dated 16th December, 1983, the Probate Registrar of the District Court of Nicosia drew the attention of the Attorney for the provisions of sections 40 and 45 of the Administration of Estates Law, Cap. 189, which govern the question of the filing of inventory and accounts by administrators and the punishment for default in filing them, and asked him to have them filed within 15 days. The Attorney failed to comply with the above notice and on the 5th October, 1984, a summons was served on him calling upon him to appear before the Court on the 22nd November, 1984, and show cause why he should not be punished for his failure to file in Court inventory and accounts of his administration. In obedience to the summons the Attorney appeared in person and by means of a written address he submitted that he was under no legal obligation to file inventory and accounts. His submission was based on the following grounds:

(a) That the application for resealing and the order granting same were not based on the provisions of the Administration of Estates Law, Cap. 189, but on the provisions of the Probates (Re-sealing) Law, Cap. 192; [*456]

(b) That Cap. 192 contains no provision at all about the filing of inventory and accounts; and that, on the contrary, Cap. 189 contains extensive provisions for the purpose;

(c) That the filing of inventory and accounts falls within the duties of the London Administrator;

(d) That the obligation of the Attorney towards the Administrator is contractual and is based on part XIII of the Contract Law, Cap. 149.

In view of the above, the question that falls for consideration is whether the Attorney has in law an obligation to file inventory and accounts of his administration.

Under rule 6 of the Probates (Resealing) Rules, made by virtue of section 7 of Cap. 192 “on application to seal letters of administration the administrator of his attorney shall give bond in Form 4 in the Appendix to cover the property of the deceased within the Republic. The same practice as to sureties and the amount of penalty in the bond shall be observed as in the case of applications for administration”.

The bond - referred to as “administration bond” in Form 4 - binds the sureties towards the Registrar of the Court in the sum named therein; and provides “that the condition of this obligation is that if the administrator.... do, when lawfully called on in that behalf, make, or cause to be made, true and perfect inventory of the estate of the said [*457] deceased in Cyprus ... and the same so made do exhibit, or caused to be exhibited, into the Registry of the District Court of Nicosia, whenever required by law so to do and the same estate do well and truly administer according to law; and further to make or cause to be made a true and just account of his said administration whenever required by Law so to do, then this obligation to be void and of no effect, or else in full force and virtue”. (The underlining was mine).

It is thus clear from the wording of the bond and so I hold that the administrator has an obligation to file with the Registrar “inventory of the estate” and “a true and just account of his administration whenever required by law so to do”.

In this connection it may be added that the bond applicable in England is worded on lines similar to our bond and the sureties guarantee the administrator:

“(a) To collect and get in the estate of the deceased which is situated in England and Wales and administer it according to law;

(b) When required to do so by the Court, to exhibit on oath in the Court a full inventory of the estate which is situated in England and Wales, and when so required to render an account of that estate”. [*458]

In view of this conclusion there arises the question whether the administrator is “required by law” to file inventory and accounts.

Now under section 40 (1) of the Administration of Estates Law, Cap. 189 “an executor who has obtained probate or an administrator who has obtained letters of administration whether with will annexed or otherwise, shall within such time as the Court shall direct, file in the Court an inventory of the estate”; and under s.45 (1) “every person to whom a grant of probate or letters of administration shall have been made, and every administrator appointed by the Court shall, within twelve months from the date of the grant or the order appointing him, file in Court the accounts, of his administration ....”.

An administrator is defined by s.2 of Cap. 189 as “a person to whom a Court has granted letters of administration or letters of administration with will annexed”.

The answer to the question that arises depends on whether the administrator under the foreign grant is an administrator within the meaning of the word “administrator” in section 2 of Cap. 189. Section 3 of Cap. 192 provides as follows:-

“3. Where a Court of Probate in any part of Her Majesty’s dominions, or a British Court in a foreign country, has, either before or [*459] after the enactment of this Law, granted probate or letters of administration in respect of the estate of a deceased person, the probate or letters of administration so granted may, on being produced to, and a copy thereof deposited with, a District Court, be sealed with the seal of that Court, and thereupon shall be of the like force and effect and have the same operation in the Republic as if granted by that Court”.

Since by virtue of the aforequoted

section the letters of administration granted by the foreign Court “thereupon shall be of the like force and effect and have

the same operation in the Republic as if granted by that Court”, it follows that the administrator under the foreign grant is

vested with the same powers as an administrator appointed under the provisions of the Administration of Estates Law, Cap. 189; and since he has the same powers he is constituted as an administrator within the meaning of the relevant definition in section 2 of Cap. 189; and thus, there are imposed on him the duties and obligations envisaged by sections 40 and 45 of Cap. 189 regarding the filing of inventory and accounts, respectively. Therefore, by virtue of the provisions of the bond - Form 4 - of the Probates (Resealing) Rules, section 3 of Cap. 192 and sections 40 and 45 of Cap. 189, an administrator is by law required to file inventory and accounts of his administration. [*460]

I have arrived at the above conclusion by having regard both to the wording of section 3 of Cap. 192 and to the following principles of construction of statutes:

(a) A statute is meant to be operative and workable 5 (see Myrianthis v. Republic,

(1978) 3 C.L.R. 254) ;

(b) There is a presumption that a statute does not intend an injustice or absurdity (see Georghiadou v. Republic (1966) 3 C.L.R. 612;

(c) Unreasonable and unjust results should be as far as possible avoided in construing a statute (see Katsaras v. Republic, (1973) 3 C.L.R. 145).

What else other than unjust, unreasonable or absurd results would have been created had another construction been adopted? One such result would be that administrators of estates in Cyprus appointed under Cap. 189 would be bound to give accounts and administrators of estates in Cyprus originally appointed by a foreign Court would not be bound to give accounts.

Let is be clarified that as far as Cap. 192 and the Probates (Resealing) Rules, made thereunder, are concerned, the role of an attorney is limited to the extent of being “authorized to apply to the Court for the sealing of the grant (see rule 4 and Forms 1 and 2 (para. 3) of the Rules); and that [*461] whatever he does regarding the administration of the estate after the re-sealing is a matter that is governed by the terms of the authority given by the administrator in the relevant power of attorney, and not by the above law and rules. Further, it should be clarified and stressed for the guidance of Probate Registrars that as far as the filing of inventory and accounts is concerned, the obligation to have them filed falls, under the Law and by virtue of the wording of the Bond - Form 4 - and particularly note

(1) thereto, to the effect that “if the application was made by attorney and the administrator does execute the bond, then for the words “the above-named A.B.” write “X.Y. of ...” giving the administrator’s name” upon the shoulders of the administrators and not upon the attorneys; and I envisage the duty of the Probate Registrars to be this: To take steps for the forfeiture of the amount of the bond should the administrator fail to comply with the requirements of the Law.

As in the instant case the administrator has not complied with the aforesaid requirements of the Law, it is up to the Probate Registrar to proceed against the administrator and the sureties by having regard to the contents of the relevant bond.

Having concluded as above, I would add that inventory and accounts can be prepared and filed by Attorneys if such authority is given to them by the power of attorney (See Tristram and Coote’s [*462] Probate Practice, 25th Ed., p. 501) where the following are stated:

“Power of attorney, or authority to apply for reseal - Where the application to reseal is made by some person on behalf of the grantee, such person must be authorised in writing by the grantee to make the application (c).

The authority may take the form of a power of attorney, either limited to the application for resealing, or conferring wider powers (e.g. of collecting and realising the estate) upon the attorney; but any document signed by the actual grantee or grantees, and requesting a named person to obtain the resealing of the grant, is sufficient”.

See, also, Rendell, Wood v. Rendell,

(1901) 1 Ch. 230 at Tristram and Coote’s (supra) at pp. 354 - 55 where the following are stated:

“Status of Attorney.

A person acting under a power of attorney has the same status as the donor of the power would have if applying personally ...”.

Order as above.