Avsar v Public Trustee - [2010] WASC 11

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: AVSAR -v- PUBLIC TRUSTEE [2010] WASC 11

CORAM: KENNETH MARTIN J

HEARD: 15 SEPTEMBER 2009

FURTHER
SUBMISSIONS
RECEIVED :4 MARCH 2010

DELIVERED : 18 MARCH 2010

FILE NO/S: CIV 1530 of 2004

BETWEEN: JENNIFER PATRICIA AVSAR
Plaintiff
AND
PUBLIC TRUSTEE
First Defendant
JOHN ROBERT COWAN
Second Defendant

Catchwords:

Wills and estates - Letters of administration sought on basis of intestacy - Public Trustee does not seek appointment as executor under multiple will instruments

Legislation:

Administration Act of Western Australia 1903 (WA)
Rules of the Supreme Court 1971(WA), O 20(2), O 29A

Result:

Application refused

Category: C

Representation:

Counsel:

Plaintiff:     In person
First Defendant             :     Mr A Rorrison
Second Defendant         :     Mr D C Leask

Solicitors:

Plaintiff:     In person
First Defendant             :     Public Trustee (WA)
Second Defendant         :     Leask & Co

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

Avsar and Cowan (Dec'd) [2009] FCWA 147
Avsar v Binning [2009] WASCA 219
Avsar v Westland Healthcare Ltd [2007] WADC 27

KENNETH MARTIN J: This matter was heard before me on 15 September 2009. The plaintiff, Mrs Jennifer Patricia Avsar, appeared as a self‑represented litigant. The respective defendants are the Public Trustee and the estate of the late John Robert Cowan (Mr Cowan having died on 9 March 2005), in respect of which probate was granted to Mr Cowan's sister, Jean Binning.
The papers filed by Mrs Avsar in support of her application do not disclose with requisite clarity the precise nature of the relief which she seeks. In the course of argument, however, it emerged that Mrs Avsar seeks a full grant of letters of administration in respect of her late mother's estate, Antoinette Maria Cowan, who died on 16 September 1996. An affidavit sworn by Mrs Avsar on 17 August 2009 indicates that Mrs Avsar's late mother executed a will on 13 July 1994 in which she appointed the Public Trustee as her executor and bequeathed all of her estate to her husband, John Robert Cowan (Mrs Avsar's stepfather).
Prior to the will of 13 July 1994, Mrs Avsar's late mother appears to have made earlier wills on 3 February 1994 and 23 October 1991 to a like dispositive effect, save that she did not refer to John Robert Cowan as her husband. In an even earlier instrument of 8 October 1987, Mrs Avsar's late mother appointed the Public Trustee as her executor and devised and bequeathed the whole of her estate equally between Mrs Avsar and her grandson, Sean Omar Avsar.
The Public Trustee has not sought probate in respect of any of the wills of Mrs Avsar's late mother. No other party seeks a grant of probate in respect of any of the wills executed by Mrs Avsar's late mother.
It is apparent that Mrs Avsar's application to be appointed administrator of her late mother's estate does not seek a grant of letters of administration with any will annexed. Rather, the application seems to proceed on the premise that all relevant will instruments executed by her late mother (namely, the four will instruments described above) are nullities. Essentially then, Mrs Avsar seeks a full grant of letters of administration on the basis that her late mother died, in effect, intestate.
It is necessary for me to briefly trace the history of the matter going back to the issue of Mrs Avsar's writ commencing these proceedings on 21 April 2004. Originally, the proceedings were commenced solely against the Public Trustee. At the hearing before me on 15 September 2009, it was foreshadowed that there were two tranches of other litigation involving Mrs Avsar in which reasons for decision were pending. It is necessary to briefly mention those further matters.

Avsar and Cowan (Dec'd) [2009] FCWA 147

This action was brought in the Family Court of Western Australia (Family Court) before Martin J: see Avsar and Cowan (Dec'd) [2009] FCWA 147. Her Honour delivered her decision on 27 October 2009 and published reasons on 5 November 2009. Mrs Avsar's application was essentially for a declaration that the marriage of her late mother to the late John Robert Cowan on 30 March 1994 was invalid.
Paragraphs [2], [3] and [6] of Martin J's reasons conveniently summarise that litigation:
2In summary, the applicant's primary case is that the marriage is invalid because:
(i)the divorce of the wife and her first husband was invalid, so she could not lawfully remarry. Her mother was not capable of applying for divorce and, in fact, it was Mr Cowan who had commenced the application; and
(ii)the wife was not capable of giving her consent at the time she and the husband married.
3She also maintains that the husband's mental capacity was such that he was not capable of consenting to the marriage.
…
6On 27 October 2009, I made the following order:
'There be a declaration that the marriage of Antoinette Maria Cowan and John Robert Cowan, celebrated on 30 March 1994, is valid.'
Justice Martin's reasons at between [98] and [127] deal with the issue concerning the alleged incapacity of Mrs Avsar's late mother. At [181] her Honour summarised the issues resolved concerning Mrs Avsar's late mother's capacity in these terms:
Mrs Avsar's position is that the wife did not have capacity to apply for a divorce or enter into a marriage in late 1993 and March 1994. However, I am satisfied the evidence in relation to the wife's capacity is not sufficient to establish, on the balance of probabilities, that Mrs Cowan did not have capacity at the time the divorce was granted or at the time of the marriage ceremony. While there is evidence that the wife had had problems with her memory as early as 1989 and 1992, it was not until late 1994 that her condition seriously deteriorated, the evidence would suggest, probably as a result of minor strokes at that time. I am not satisfied her, probably, poor memory, the fact she obviously did not have high intelligence and was very poorly educated, meant that she did not have a general understanding of marriage (and divorce) and its consequences. She knew and accepted she was marrying the man she loved, depended on, and had lived with for many years. The fact that it is likely that Mr Cowan made the arrangements to enable the divorce to occur and, probably, for Mr and Mrs Cowan to marry, does not affect the validity of this marriage.
Accordingly, the application to have Mrs Avsar's late mother's marriage declared a nullity, failed in the Family Court proceedings. In the process, the attempt to establish invalidity upon the basis of her late mother's lack of capacity to marry, was rejected. Mrs Avsar's late mother's last will and testament was executed on 13 July 1994 after her marriage. But it is to be remembered Mrs Avsar's mother also executed earlier will instruments of 3 February 1994 (made in contemplation of marriage to John Robert Cowan) and even earlier on 23 October 1991, again devising all of her estate to John Robert Cowan, if he survived her (as he in fact did).

Avsar v Binning [2009] WASCA 219

A second proceeding concerned a pending, but unresolved appeal to the Court of Appeal of Western Australia heard on 2 September 2009: see Avsar v Binning [2009] WASCA 219 per Owen, Miller and Newnes JJA. Reasons for decision were delivered on 9 December 2009. Mrs Avsar's appeal had sought to overturn a decision of Templeman J which granted letters of administration in solemn form in respect of the estate of John Robert Cowan in favour of Mr Cowan's sister, Jean Binning (the respondent to the appeal).
The reasons for decision of Owen JA, at [2] to [11] (with whom Miller and Newnes JJA agreed) recite the background to that appeal. The Court of Appeal unanimously dismissed Mrs Avsar's appeal against the trial judge's determination that Mr Cowan's sister was entitled to letters of administration in respect of the late Mr Cowan's will of 15 November 2001 (the Public Trustee having renounced probate). I respectfully refer to and adopt the legal principles regarding testamentary capacity as summarised by Owen JA at between [66] to [69] in his Honour's reasons.

History of these proceedings

Returning to the history of the action before me, I refer to Mrs Avsar's writ of summons in which she describes herself as the 'lawful daughter and only child of Antoinette Maria Cowan'. She then seeks declarations to the effect that the four wills of her late mother be declared invalid.
The file indicates that on 21 April 2004, Mrs Avsar filed two affidavits in support of her application for 'full administration orders and other orders for relief'. The Public Trustee, then the only defendant, entered a memorandum of appearance on 28 April 2004.
On 18 May 2004, at a status conference, Registrar Dixon ordered that John Robert Cowan be joined as second defendant to the action, and that the Public Trustee be designated the first defendant. John Robert Cowan died subsequently on 9 March 2005. As I have observed, letters of administration (with Mr Cowan's will of 15 November 2001 annexed) were granted to Mr Cowan's sister, Jean Binning. Those orders are now confirmed by the Court of Appeal, in dismissing Mrs Avsar's appeal in Avsar v Binning on 9 December 2009.
On 12 July 2004, Mrs Avsar filed a document in this action entitled 'Plaintiff's statement of claim'. The document is curiously dated '31 June 2004'. However, I will refer to it as the 'July 2004 statement of claim'. It comprises of 21 largely unintelligible pages, and concludes in these terms:
And the plaintiff claims against the second named defendant, pursuant to the Common Law Doctrine of Contributory Negligence:
(i)Damages for the benefit of the plaintiff as daughter of the deceased and for the family members of the deceased …;
(ii)Damages for the plaintiff's suffering chronic stress related disorders resulting in her psychiatric treatment for anxiety and depression;
(iii)Interest on the aggregate of the foregoing claims …
(iv)Interest on disbursements paid by the plaintiff …
(vi)Further orders as the Honourable Supreme Court deems just.
The July 2004 statement of claim filed by Mrs Avsar refers to Mr John Robert Cowan as the de facto husband of Mrs Avsar's late mother. That terminology is contrary to the conclusions of Martin J in Avsar and Cowan (Dec'd).
At the hearing before me, counsel for the Public Trustee explained that at one point it was seeking to administer the estate of Mrs Avsar's late mother informally. However, a caveat was lodged by Mrs Avsar and the Public Trustee then withdrew (see ts 42). It effectively renounced probate and took no further action.
Counsel for the Public Trustee explained to me that Mrs Avsar had sought to pursue proceedings on behalf of her late mother's estate in two respects (ts 42). She had pursued an action in the District Court of Western Australia for damages against a nursing home in which her late mother had been a resident. She also sought to participate on behalf of her late mother's estate in property settlement proceedings which had been commenced and were pending in the Family Court between Mr Cowan and Mrs Avsar's late mother.
Limited grants of administration have been made to date in favour of Mrs Avsar in respect of the District Court proceedings and the property settlement proceedings in the Family Court. It appears that the District Court proceedings, which raised allegations of negligence against the nursing home, proceeded to trial but ultimately failed, see Avsar v Westland Healthcare Ltd [2007] WADC 27.
Counsel for the Public Trustee advised me at the hearing that whilst it could not consent to a grant of letters of administration to Mrs Avsar in respect of her late mother's estate, it essentially raised no objection (ts 43). However, Mr Rorrison advised me that the July 2004 statement of claim indicates that Mrs Avsar seeks damages against the Public Trustee. With such a claim for damages extant, the Public Trustee could not withdraw from proceedings, although Mr Rorrison indicated that Mrs Avsar, as a litigant in person, might now only be seeking costs of some previous proceedings, rather than damages at large against the Public Trustee. There was a lack of clarity in that respect.
At one point this action was entered into the inactive cases list. However, Mrs Avsar applied by chamber summons of 13 March 2008 to have the action removed from the inactive cases list pursuant to O 29A r 20(2) of the Rules of the Supreme Court (WA). On 15 April 2008, Master Sanderson made an order removing the matter from the inactive cases list, otherwise adjourning Mrs Avsar's chamber summons sine die. For a time, little seems to have transpired of relevance subsequent to removal of the action from the inactive cases list.
However, on 30 July 2009, Mrs Avsar filed a document entitled, 'amended of [sic] writ of summons without leave pursuant to Order 21 Rule 1 of the Rules of the Supreme Court 1971'. Page 3 contains what is referred to as a 'statement of claim', but which, with respect to Mrs Avsar as a self‑represented litigant, is obviously an 'amended indorsement of claim'. The amended indorsement reads:
This summons is issued on the application of JENNIFER PATRICIA AVSAR … the lawful daughter and only child of the abovenamed ANTOINETTE MARIA HAYWARD (also known as COWAN - deceased) who seeks the following orders:
1.A declaration that ALL the wills of ANTOINETTE MARIA HAYWARD (also known as COWAN) late of 905/23 Adelaide Street Fremantle, be invalid.
The amended indorsement seeks, in effect, to cater for the intervening death of John Robert Cowan on 9 March 2005 (at 86 years of age) (see Avsar and Cowan (Dec'd), per Martin J [25]).
Otherwise, however, it is apparent that Mrs Avsar continues to pursue her application for the grant of letters of administration - on the underlying premise that all wills of her late mother, are to be declared invalid. I have an abiding conceptual difficulty with Mrs Avsar's application seeking a full grant of letters of administration over her late mother's estate on that basis, which I will explain below.
On 10 August 2009, Mrs Avsar wrote to a listings officer of the Supreme Court in these terms:
Further to filing and serving my amended writ of summons on 30 July 2009 pursuant to the Rules of the Supreme Court 1971 order 21 rule 1, please relist this adjourned matter as soon as possible, but preferably before 16 September 2009.
Mrs Avsar referred to her own unavailable dates, and concluded her request as follows:
I have legal reasons to believe that this matter is ready to proceed further.
The matter then returned to Master Sanderson on 25 August 2009, at which time he appears to have made an order that the matter be listed before a judge for hearing.
The matter as it is now before me appears to be the substantive application by Mrs Avsar brought upon the basis of her July 2004 statement of claim for a grant of letters of administration, and without reference to any will of her late mother. This intent is plainly apparent from the July 2004 statement of claim and also the recent amended indorsement to the writ of summons of 30 July 2009, seeking that all wills of Mrs Avsar's late mother be declared invalid.
Mrs Avsar filed a further affidavit on 18 August 2009 prior to the appointment before the Master on 25 August 2009, in which she states:
8.On 1 March 2009 I informed the Public Trustee that I do not need leave to amend under Rules of the Supreme Court 1971 Order 21 Rule 1 and 3, and due to the Public Trustee's failure to identify the part/s of my claim they oppose, I am not positioned to amend the statement of claim until they do. Annexed hereto is a true copy of my letter to the Public Trustee dated 1 March 2009 marked with the letters 'JPA3'.
9.I am seeking a Full Grant of Letters of Administration for my late mother's estate without the Will annexed, on the grounds that my mother did not [sic: have] mental or legal testamentary capacity.
The affidavit refers to her late mother's 'multi infarct dementia' and her 'illiteracy', at subpars 9.1 and 9.2. Insofar as those assertions go towards an alleged incapacity in her late mother to execute a valid will at any relevant time, it seems to me that the multi infarct dementia issue only arises from a medical report and CT scan conducted at Fremantle Hospital in 1994. It cannot therefore bear relevantly upon the validity of the earlier will instruments. The illiteracy issue has also been raised and resolved against Mrs Avsar's contention of lack of capacity of her late mother in Avsar and Cowan (Dec'd).
At page 6 of the affidavit sworn 17 August 2009, Mrs Avsar concludes:
Orders sought:
1.That the Court directs the Probate Registrar to issue and seal a Grant of Letters of Administration without the will annexed; or in the terms of order/s sought in the applicants Writ of Summons amended on 30 July 2009.
2.That the court directs the parties to a Mediation Conference in relation to the plaintiff's Statement of Claim filed on 12 July 2004.
3.Such further orders as this Honourable Court deems fit.
At the appointment before me on 15 September 2009, Mrs Avsar confirmed that she was indeed seeking a full grant of letters of administration, so as to 'just finalise matters now, so basically that's what I need' (ts 38). As I have indicated, the Public Trustee, whilst not consenting, does not actively oppose Mrs Avsar application for the grant of letters of administration in respect of her late mother's estate.
But there remains the position of the second defendant, who at the time of the hearing before me, was the subject of the pending appeal to the Supreme Court of Appeal in Avsar v Binning, bearing upon the validity of the second defendant's position as administrator (with the will of 15 November 2001 annexed) in respect of the estate of John Robert Cowan.
At the hearing, counsel for the second defendant drew my attention to the as then, unresolved situation as regards Mrs Avsar's appeal and her pending application in the Family Court - both of which have subsequently been resolved, as I have explained.
Mr Leask at the hearing, observed for Mrs Binning, upon many asserted deficiencies in the July 2004 statement of claim (see ts 45):
[B]ut the majority of the paragraphs in that, it seems to me, shouldn't really be in a statement of claim, and there's a claim of damages there which clearly has no place in a probate action. There is some relevant material in there, but a lot of it needs to go, and the issue in respect of capacity needs to be clearly spelt out. My client is mindful of the fact that on her understanding this is a very small estate indeed, but it still seems to me that some attempt should be made to plead the issue properly, and that will give my client a chance to assess the medical evidence and come to a view as to whether or not that issue should be conceded.
Mr Leask also submitted (see ts 46):
The second‑last will was made in contemplation of marriage. Your Honour, the second defendant, as I said before, doesn't wish to prolong these proceedings; wishes this matter to be dealt with as quickly and economically as possible. It just seems to me that it would be inappropriate for the matters to be dealt with today when it hasn't been properly pleaded out and the second defendant hasn't been given an opportunity to assess the medical evidence in respect of the issue of capacity, and also what steps were taken by the Public Trustee to explain the will in relation to the issue of literacy.
And at ts 47:
Your Honour, perhaps the only thing I can say in closing my submissions is that my client has no objection to Mrs Avsar being the administrator or indeed the executor of the estate but it's just the question of whether it is pure administration on an intestacy or whether she is an executor under a will.

Mr Leask also explained to me that given the very modest dimensions of the estate of Mrs Avsar's late mother (which Mrs Avsar, however, challenges), it was unlikely that the estate of Mr Cowan could be prejudiced financially by the appointment of an administrator, in contrast to a grant of probate under either of the wills of Mrs Avsar's late mother of February or July 1994. The financial implications were explained as these (see ts 47):
MR LEASK: Yes, because if Mrs Avsar has gone to probate of the last will, then my client takes the whole estate through the will. If there's an intestacy, then as the surviving spouse, given that it is a very small estate, he would take it anyway. If, as Mrs Avsar will doubtless indicate to your Honour, she is able to satisfy the Family Court that the marriage should be annulled and there was a de facto relationship, then my clients or Mr Cowan would take the estate as a result of being a surviving de facto spouse.
So, so far as we are concerned, it doesn't really make any difference, but I'm alert to the fact that Mrs Avsar still has ongoing proceedings in the Family Court and until those proceedings are dismissed there may be some value to the estate and there may be other claims she has as well. Whatsoever nature, I'm not sure. So it's a somewhat difficult position for my client, who just wants really to see this matter be resolved as quickly as possible, but because there are these other claims potentially still outstanding it may give a value to the estate and therefore is a relevant issue.
As events have transpired, the Family Court proceedings have now been resolved as I have indicated, albeit Mrs Avsar is appealing.
In an oral reply to me concerning the content of her July 2004 statement of claim, Mrs Avsar said:
To be honest with your Honour, I'm not a lawyer and I just set down everything that happened to me and the loss that incurred to me, but I'm prepared to delete whatever the parties think is unnecessary; I'm not going to be difficult in this matter … and I'm prepared to resolve this issue like Mr Leask has just said, as quickly as possible, so I'm not going to be difficult in that area at all. I don't think I can be now, I'm just so tired, your Honour (ts 51).

Resolution of the application by Mrs Avsar

With decisions of the Family Court of Western Australia and the Court of Appeal now being published in November and December 2009 respectively, there is now some certainty in respect of variables which were pending at the time the matter was argued before me in September 2009. I am conscious of the fact that I may be dealing with a relatively small estate concerning Mrs Avsar's late mother and which has been outstanding since her death in 1996. Furthermore, there is the consideration that the Public Trustee, who was appointed executor under each of the four wills of Mrs Avsar's late mother to which I have referred, has both renounced probate and does not actively oppose Mrs Avsar's application to be appointed administrator with a full grant of letters of administration. I am also conscious of the fact that Mrs Avsar is a self‑represented litigant and, as indicated by her most recent affidavit (orders sought, par 2), that she is seeking a mediation conference in respect of what appears to be many abiding deficiencies in her July 2004 statement of claim. Balanced against all that, however, is the fundamental premise of Mrs Avsar's application to be appointed administrator, on a basis of what is, in effect, an argued intestacy in the estate of her late mother.
On all the evidence and materials before me at the hearing, and particularly now with the benefit of reasons for decision of Martin J in Avsar and Cowan (Dec'd), I cannot sanction or accept that underlying incapacity premise of Mrs Avsar's application. Perhaps, as Mr Leask has observed, the ultimate financial consequences, bearing in mind the very small estate left by Mrs Avsar's late mother, may not be of great moment. Nevertheless, I am not satisfied that it is appropriate for a court to approve an application for the grant of letters of administration, in circumstances where the putative administrator seeks the position on the basis of an intestacy scenario - in the face of the significant evidence before me as to potentially valid testamentary instruments executed by Mrs Avsar's late mother in the period between 1987 and 1994. No case authority was cited to me concerning this issue. But my conceptual concern abides, notwithstanding that the named executor in each will has renounced probate and that no‑one else seeks a grant of probate.
Had, for instance, Mrs Avsar sought a grant of letters of administration with one or other of the wills of her late mother annexed, this issue would not arise with the same force. The matter would then need to be re‑evaluated from an altered perspective. But Mrs Avsar plainly does not at present seek administration orders in her favour by reference to any will of her late mother.
Furthermore, Mrs Avsar has not yet indicated, as best I can make out, how she would propose to deal with or distribute her late mother's estate, vis‑à‑vis the second defendant, in the event that a full grant of letters of administration were made to her on the underlying intestacy premise she currently propounds. That uncertainty could be clarified through the process of mediation.
Presently however, I am not persuaded that it is appropriate for the court to sanction a grant of letters of administration to Mrs Avsar, on the basis she currently pursues.
Since the parties had not had an opportunity to present their submissions with the benefit of the published reasons for decision of Martin J in Avsar and Cowan (Dec'd) and of the Court of Appeal in Avsar v Binning, the parties were provided with a copy of these proposed reasons which were then in draft on 2 February 2010. I afforded the parties liberty to make further written submissions within 21 days. An extension of time to file submissions was then granted to Mrs Avsar who required further time. Mrs Avsar then provided her further written submission on 4 March 2010.
I have now considered the further written submissions of Mrs Avsar. Save for pointing out to me that she is proceeding to appeal against the decision of Martin J in the Family Court, Mrs Avsar's materials traverse old ground and do not offer a substantive response to the underlying conceptual concern which I hold about her being granted letters of administration - effectively on the basis that her late mother died without a valid will. Until that conceptual obstacle is removed, Mrs Avsar's application cannot be acceded to.
Accordingly, Mrs Avsar's application must be dismissed.