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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Avsar v Public Trustee

Details

AGLC: Avsar v Public Trustee [2010] WASC 11
Case: [2010] WASC 11
Decision Date: 18 MARCH 2010

CaseChat Overview and Summary

In the matter of Avsar, the deceased passed away without leaving a will, prompting the applicant to seek letters of administration on the basis of intestacy. The Public Trustee, who was appointed under the deceased's multiple wills, did not contest the applicant's right to apply but did not seek to be appointed as the executor of the estate. The court was tasked with determining whether the Public Trustee was entitled to fees despite not seeking an appointment. The central legal issue revolved around the extent of the Public Trustee's obligations and entitlements when not acting as executor under a will, particularly in the context of an intestate estate.

The court examined the statutory framework governing the Public Trustee's role and the interplay between the statutory provisions concerning the administration of estates and the rules regarding the Public Trustee's fees. It was necessary to consider whether the Public Trustee's actions were consistent with their statutory duties and whether the applicant's entitlement to letters of administration was affected by the Public Trustee's decision not to seek an appointment as executor. The court concluded that the Public Trustee's decision not to seek an appointment did not absolve them of their statutory responsibilities, which included ensuring the proper administration of the estate. Consequently, the court held that the Public Trustee was entitled to claim fees for the services rendered, as these were integral to the administration of the estate.

The court determined that the Public Trustee was entitled to claim fees for the services rendered to the estate. The reasoning was based on the understanding that the Public Trustee's statutory duties included ensuring the proper administration of the estate, regardless of whether they sought to be appointed as executor. The court found that the Public Trustee had acted within their authority and that the applicant's entitlement to letters of administration was not prejudiced by the Public Trustee's decision. The court's decision underscored the importance of the Public Trustee's role in the administration of estates, even in circumstances where they do not seek to act as executor.

Orders