Australian Executor Trustees Ltd (as Administrator of the Estate of Reece William Hodder) v Hodder

[2018] WASC 48

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   AUSTRALIAN EXECUTOR TRUSTEES LTD (as Administrator of the Estate of Reece William Hodder) -v- HODDER [2018] WASC 48

CORAM:   ALLANSON J

HEARD:   5 FEBRUARY 2018

DELIVERED          :   8 FEBRUARY 2018

PUBLISHED           :  14 FEBRUARY 2018

FILE NO/S:   CIV 3017 of 2016

MATTER                :An Application under s 92 of the Trustees Act 1962 (WA)

BETWEEN:   AUSTRALIAN EXECUTOR TRUSTEES LTD (as Administrator of the Estate of Reece William Hodder)

Plaintiff

AND

ELAINE GEORGINA HODDER
First Defendant

TYRELL AUGUSTINE HODDER
Second Defendant

MARLEE ROSE RYDER
Third Defendant

CORY DESMOND HODDER
Fourth Defendant

DAVID PATRICK INDICH
Fifth Defendant

TANIA MARIE CORBETT
Sixth Defendant

TAMMY LEE NARRIER
Seventh Defendant

PATRICK NARRIER
Eighth Defendant

TAMARA INDICH
Ninth Defendant

PATRICK JACOBS
Tenth Defendant

JASMINE INDICH
Eleventh Defendant

Catchwords:

Administration of estates - Intestacy - Where directions sought by administrator as to persons entitled - Turns on own facts

Legislation:

Administration Act 1903 (WA), s 8, s 12A, s 12B, s 13, s 14(1), s 15, s 45
Evidence Act 1906 (WA), s 79C
Trustees Act 1962 (WA), s 6, s 66, s 92

Result:

Directions given
Declaration granted

Category:    B

Representation:

Counsel:

Plaintiff:     Mr P J Tydde

First Defendant              :     Mr G A Rabe

Second Defendant         :     Mr G A Rabe

Third Defendant            :     Mr G A Rabe

Fourth Defendant           :     Mr G A Rabe

Fifth Defendant              :     In person

Sixth Defendant             :     Mr H Bendtsen

Seventh Defendant         :     Mr M C M Muk

Eighth Defendant           :     No appearance

Ninth Defendant             :     Mr M C M Muk

Tenth Defendant            :     Mr M C M Muk

Eleventh Defendant        :     Mr M C M Muk

Solicitors:

Plaintiff:     Gilbert + Tobin

First Defendant              :     Corser & Corser

Second Defendant         :     Corser & Corser

Third Defendant            :     Corser & Corser

Fourth Defendant           :     Corser & Corser

Fifth Defendant              :     In person

Sixth Defendant             :     HLB Lawyers

Seventh Defendant         :     George Papamihail Barristers & Solicitors

Eighth Defendant           :     No appearance

Ninth Defendant             :     George Papamihail Barristers & Solicitors

Tenth Defendant            :     George Papamihail Barristers & Solicitors

Eleventh Defendant        :     George Papamihail Barristers & Solicitors

Case(s) referred to in judgment(s):

Jemal David Zagami (In his Capacity as Administrator of the Deceased's Estate) v James [2017] WASC 292

1. ALLANSON J: These proceedings were commenced by an originating summons by which the plaintiff seeks orders and directions pursuant to s 45 of the Administration Act 1903 (WA) and s 66 and s 92 of the Trustees Act 1962 (WA). The plaintiff is the administrator of the estate of Reece William Hodder under letters of administration issued on 29 April 2015.

2. Mr Hodder died on 16 November 2013.  He was then 30 years old.  Mr Hodder did not marry during his lifetime or have children.  He left property in Western Australia which is to be distributed according to the entitlements set out in the Administration Act.  He was survived by his mother, and, as I have found, by his father, and by several siblings.

3. Mr Hodder left no will and his estate is to be distributed according to the entitlements set out in s 14(1) of the Administration Act.

4. The administrator sought the assistance of the court because of factual issues that needed to be resolved in ascertaining who Mr Hodder's surviving beneficiaries are.  Before dealing with those factual issues it is necessary to consider the statutory framework.

The Administration Act

1. Where an executor or trustee is in doubt as to the course of action it should adopt, it is entitled to take the opinion of the court as to what it should do. Under s 45 of the Administration Act:

   (1)The Court may make such order with reference to any question arising in respect of any will or administration, or with reference to the distribution or application of any real and personal estate which an executor or administrator or Public Trustee may have in hand, or as to the residue of the estate, as the circumstances of the case may require.

   (2)Such order shall bind all persons whether sui juris or not.

   (3)No final order for distribution shall be made except upon notice to all the parties interested, or as the Court may direct.

2. The power in s 45 is expressed in very broad terms. Unless the context otherwise requires, the provisions of the Trustees Act 1962 (WA) also apply to an administrator, by reason of the definition of 'trust' and 'trustee' in s 6 of that Act. A trustee may also apply to the court for directions under s 92 of the Trustees Act.

3. The plaintiff applied for a declaration that it be at liberty to administer the estate on the basis that Elaine Georgina Hodder and David Patrick Indich are Mr Hodder's parents, and that his only brothers and sisters are the other defendants and David Christopher Narrier (deceased).  The orders are subject to, and will not take effect until compliance with, orders requiring the plaintiff to advertise a notice to creditors and claimants of the estate and to serve a copy of the orders on the surviving kin of David Christopher Narrier.

Distribution on intestacy

1. Upon the grant of administration, all real and personal estate which the deceased person died seised, possessed of, or entitled to in Western Australia shall, as from the death of that person, pass to become vested in the administrator:  Administration Act s 8. By s 13, the administrator holds the real and personal estate to which the intestacy applies, and which vests in him under s 8, on trust for the persons who are entitled under s 14 and s 15.

2. By s 14(1) of the Administration Act, where any person dies intestate as to all or any of his property, that property shall be distributed according to the entitlements set out in the table to that section.  Relevantly, by item 6(b) where the person dies leaving a parent or parents and one or more of the following, namely, a brother, sister, or a child of a brother or sister, but leaving no wife or issue, and where the net value of the intestate property exceeds $6,000:

   (1)the parents shall be entitled to the sum of $6,000 absolutely and to one half of the residue, in equal shares;

   (2)the brothers and sisters of the deceased, and the children of any deceased brother or sister, shall be entitled to the other half in accordance with s 14(3a).

3. The relationship between a child and his parents shall be determined irrespective of whether the parents are or have been married to each other, and all other relationships, whether lineal or collateral, shall be determined accordingly: s 12A(1).

4. It is also immaterial whether the relationship of brothers and sisters is of the whole blood or of the half‑blood: s 12B.

5. The facts establishing a relationship between a child and his parents must be established to the reasonable satisfaction of the court: s 12A(2)(a). By s 12A(2)(b), where the parents are not, or have not been, married to each other, the relationship between a child and his parent, and all other lineal or collateral relationships, shall be recognized only:

   (i)if parentage is admitted by or established against the parent in his lifetime; and

   (ii)where the purpose for which the relationship is to be determined enures for the benefit of the parent, if parentage has been so admitted or established in the lifetime of the child.

The evidence

1. The matter proceeded on affidavit evidence, and no party sought to cross examine on any of the evidence so placed before the court.

2. The plaintiff filed an affidavit, dated 21 November 2016, of Steven Pass, an officer of the plaintiff.  Mr Pass had the day to day conduct of the administration of the estate of Mr Hodder until January 2016, and has maintained a high level of involvement since.  Mr Pass included, as attachments, two substantial affidavits of Elaine Hodder, sworn 17 February 2014 and 28 October 2015, that were made in earlier proceedings in this court.  He also attached a statutory declaration made by Mr Indich on 31 October 2016.  Each of the other defendants filed a brief affidavit as to his or her entitlement.

3. Mr Pass also deposed to the steps that the plaintiff has taken to identify potential beneficiaries.  The plaintiff also caused notices to be published in the Government Gazette and The West Australian Newspaper in 2015, seeking creditors of the deceased's estate; it received no responses.

4. The present position is that after proper inquiry, the plaintiff is unaware of any person who may be entitled to share in the estate of the deceased other than the defendants to this action and the estate of David Christopher Narrier. 

Findings

Elaine Georgina Hodder and her children

1. Elaine Georgina Hodder is the mother of the deceased and also of Tyrell Augustine Hodder, Marlee Rose Ryder and Cory Desmond Hodder (the second, third and fourth defendants).  Ms Hodder's children are the brothers and sister of the deceased.

2. With regard to the other relationships, I am indebted to the very thorough submissions filed on behalf of the administrator.

David Patrick Indich

1. Mr Indich is not recorded as the father of the deceased on either the birth or death certificates.  There is, however, sufficient evidence before the court for me to be satisfied that David Patrick Indich is the father of the deceased.

2. First, Ms Hodder has consistently identified Mr Indich as the father, including on oath:  see affidavit 17 February 2014, par 9.  Second, although Ms Hodder states that Mr Indich had little to do with the deceased after he was born, there were occasions during the lifetime of the deceased on which Mr Indich acknowledged that he was the deceased's father.  In particular, when the deceased was about 14, Ms Hodder took him to Geraldton to stay with Mr Indich for a week.  Ms Hodder said that she and Mr Indich agreed that the visit was to allow the deceased to get to know his father.  When the deceased was 15 or 16 years old, Mr Indich made another attempt to spend a day with him.

3. Although the contact was minimal, I am satisfied that there is sufficient evidence that, at least impliedly, Mr Indich acknowledged or admitted that he was the father of the deceased.

The surviving children of Mr Indich

1. In his statutory declaration of 31 October 2016, Mr Indich acknowledged that he is the father of each of Tania Marie Corbett, Tammy Lee Narrier, Patrick Narrier, Tamara Indich, Jasmine Indich and David Christopher Narrier. 

2. In earlier interlocutory proceedings, orders were made to facilitate obtaining evidence of paternity from those parties who wished to submit to testing. Mr Indich and three of his children participated. In each case the evidence of the test, in the form of a laboratory report, was put before the court as an attachment to an affidavit of the party, or the solicitor for the party. No party objected to the evidence being presented in this way and no party required the person who prepared the report to be cross examined as to the document. I am satisfied that the DNA report in each case is admissible as to the facts and opinions recorded in it and should be received under s 79C of the Evidence Act.

3. The evidence enables me to be reasonably satisfied that Mr Indich's acknowledgement of paternity in each case is correct.  Tania Marie Corbett, Tammy Lee Narrier and Tamara Indich have adduced DNA evidence which supports the contention that Mr Indich is their father.  I am satisfied that each has been proved to be a sister of the deceased.

4. Patrick Narrier, while stating that he is a brother of the deceased, and with the understanding that he may entitled to share in the distribution of the estate, has stated that he does not wish to claim his entitlement or receive any distribution.  In Jemal David Zagami (In his Capacity as Administrator of the Deceased's Estate) v James [2017] WASC 292 , I considered whether a person entitled on intestacy may disclaim his or her interest, notwithstanding that the entitlement arises under statute; what is required to disclaim an interest; and the effect of a disclaimer: see pars 18 ‑ 25. In short, I am satisfied that a person entitled on intestacy may disclaim the gift. The disclaimer must be absolute, it may not be conditional, and it must be communicated. The effect of the disclaimer is that the share that would have otherwise gone to that beneficiary devolves upon the other members of the class of beneficiaries as if the disqualified or disclaiming person were non‑existent. I am satisfied that Patrick Narrier has effectively disclaimed his interest and the plaintiff may administer the estate on the basis that his entitlement does not exist.

5. The tenth defendant does not pursue his claim and has not been shown to be a brother of the deceased.

6. Mr Indich has acknowledged that Jasmine Indich is his daughter.  She and Tamara Indich have the same mother.  Jasmine Indich was born towards the end of a period of about two years during which her mother and Mr Indich were living together in Darwin.  I am satisfied that Jasmine Indich is the daughter of Mr Indich and is the sister of the deceased.

David Christopher Narrier

1. Mr Indich also declared that he is the father of David Christopher Narrier, now deceased.  Mr Indich is not, however, recorded on either Mr Narrier's birth certificate or death certificate.

2. Mr Narrier was one of three children born during the relationship between his mother and Mr Indich.  That relationship was from about mid-1975 to 1983 ‑ three years after Mr Narrier's birth.  

3. Having regard to Mr Indich's acknowledgement of paternity, and the ongoing relationship at the time of Mr Narrier's birth, I am satisfied that Mr Narrier was the son of Mr Indich and the brother of the deceased. 

4. Mr Narrier died on 7 June 2015. Accordingly, at the time of Mr Narrier's death, the estate of the deceased had vested in the plaintiff as administrator and was held on trust for the persons entitled under s 14 of the Administration Act.  Mr Narrier had an existing interest in the estate of the deceased that was held on trust for him at the time of his death and that interest is, in my opinion, property in Mr Narrier's estate.

5. At the time of the hearing no personal representative had been appointed for Mr Narrier's estate.  On the information now available to the plaintiff, Mr Narrier did not leave a will.  He was survived by five children, one of whom is now adult.  Mr Narrier was unmarried.  The evidence does not show whether he was in a de facto relationship.

Conclusion

1. On the basis of these findings, I am satisfied that the orders sought by the plaintiff should be made, with these amendments.

2. First, all defendants having been represented in the proceedings, the service of orders on each of them is not required as a condition precedent to the orders taking effect.  Second, there being no personal representative of the estate of David Christopher Narrier, unless an administrator is appointed in the meantime, the orders should be served on Joshua David Narrier, the only child of Mr Narrier who is now adult, and who is entitled to a grant of administration.  Third, the proposed order that the estate of David Christopher Narrier is bound by the orders will not be made.  There is presently no person to whom such an order could apply.  The interests of those entitled to Mr Narrier's estate are preserved.  Fourth, the eighth defendant has disclaimed his entitlement and the estate should be distributed on the basis that he is not entitled as a brother of the deceased.  Fifth, the tenth defendant has not been shown to be entitled to any part of the property of the deceased.

3. I made orders that are consistent with these reasons on 8 February 2018.