Bruce Neville Victor Tomich as Executor of the Estate of Margaret Violet Tomich v Tomich - [2015] WASC 502

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BRUCE NEVILLE VICTOR TOMICH AS EXECUTOR OF THE ESTATE OF MARGARET VIOLET TOMICH -v- TOMICH [2015] WASC 502

CORAM: TOTTLE J

HEARD: 26 OCTOBER 2015

DELIVERED : 26 OCTOBER 2015

FILE NO/S: CIV 1751 of 2015

BETWEEN: BRUCE NEVILLE VICTOR TOMICH AS EXECUTOR OF THE ESTATE OF MARGARET VIOLET TOMICH
First Plaintiff
DIANE ELIZABETH TOMICH AS EXECUTOR OF THE ESTATE OF MARGARET VIOLET TOMICH
Second Plaintiff
AND
BRUCE NEVILLE TOMICH
DIANNE ELIZABETH TOMICH
CAROLYN MARGARET TOMICH
Defendants

Catchwords:

Probate - Wills and estates - Where orders granting the passing of the accounts of the deceased's estate made pursuant to r 37 of Non-contentious Probate Rules 1967

Probate - Practice - Service of documents - Where defendant refused service - When defendant aware of proceedings - Where requirement for notice of filing of accounts by advertisement be dispensed with - Where notice dispensed with

Legislation:

Non-contentious Probate Rules 1967 (WA)
Trustees Act 1962 (WA)

Result:

Application granted

Category: B

Representation:

Counsel:

First Plaintiff                  :     Mr M N Thornhill
Second Plaintiff             :     Mr M N Thornhill
Defendants:     No appearance

Solicitors:

First Plaintiff                  :     HHG Legal Group
Second Plaintiff             :     HHG Legal Group
Defendants:     No appearance

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

In Re Ellis [2015] WASC 77

TOTTLE J: Margaret Violet Tomich, to whom I will refer as 'the deceased', died on 4 May 2013. Probate of her will, made on 21 March 2012, was granted to Bruce Neville Victor Tomich and Diane Elizabeth Tomich on 5 March 2014. I will refer to members of the deceased's family by their first names and, in doing so, I intend no disrespect.
By an originating summons issued on 20 May 2015, Bruce and Diane applied for the following orders:
(1) they have leave to file an application for the passing of accounts of the estate of the deceased out of time;
(2) there be a passing of the accounts of the estate of the deceased pursuant to r 37 of the Non-Contentious Probate Rules 1967 (WA);
(3) the costs of the application be paid from the estate; and
(4) such further orders as the court considers appropriate.
The parties named as defendants in the summons are Bruce and Diane as first and second defendants, and Carolyn Margaret Tomich as the third defendant. In their capacities as defendants, Bruce and Diane have filed notices of intention to abide the outcome of the application.
To establish that Carolyn had been served with the proceedings Bruce and Diane adduced affidavit evidence in the form of an affidavit sworn by Helen Shaw on 16 June 2015, an affidavit sworn by Shane Headley Shaw on 15 June 2015, an affidavit sworn by Amy Duncan on 17 June 2015, and an affidavit sworn by Hannah Isherwood. The effect of this evidence is that Carolyn has avoided the service of documents, but that she is aware of the proceedings.
The affidavits to which I have referred also establish that Carolyn was served with the originating summons and affidavits in support, in accordance with orders made by Master Sanderson for substituted service. In addition, Carolyn was given notice of the hearing that has taken place today by letters dated 4 September 2015 from the court registry. Carolyn has not filed a memorandum of appearance, nor has she taken any step in these proceedings. I note that Carolyn is a solicitor, although she does not currently practise.
Bruce, Carolyn and Diane are each entitled to a third share in the deceased's residuary estate.
In support of the substantive application Bruce and Diane read and relied upon the following affidavits: an affidavit of Amy Duncan sworn on 19 May 2015, an affidavit of Bruce sworn on 5 May 2015, and a further affidavit of Bruce sworn on 21 October 2015.
These affidavits establish the following facts:
(i)An application for a grant of probate was made on 7 June 2013.
(ii)Carolyn lodged a caveat in relation to the estate.
(iii)On 14 August 2013 Bruce and Diane gave notice of their intention to apply for probate.
(iv)Carolyn's caveat lapsed.
(v)In 2013 and 2014 Carolyn had a number of conversations with representatives of the solicitors acting for Brian and Diane in the course of which Carolyn made a number of statements of a bizarre nature. By way of illustration, those statements included statements to the effect that Bruce and Diane were trying to kill her, that they had killed the deceased, and other statements of an equally strange and unusual nature;
(vi)The estate comprised funds standing to the deceased's credit in bank accounts and an Aegis Aged Care Group Accommodation Bond refund and a small refund from HPF. The total value of the estate was approximately $1,085,600; the liabilities of the estate were approximately $9,777; and, the net value of the estate was approximately $1,075,825.
(vii)The administration of the estate was substantially completed by 15 January 2015, and that Bruce and Diane were ready to make distributions out of the estate in two tranches. The first tranche was intended to be a distribution of $340,000 to each of Bruce, Diane and Carolyn, leaving a balance of approximately $25,391 to be distributed in a second tranche after the payment of outstanding legal expenses and tax.
(viii)Bruce and Diane, through their solicitors, prepared a draft deed of distribution release and indemnity which was sent to Carolyn for her approval and signature.
(ix)Carolyn refused to accept service of the draft deed and accompanying correspondence and refused to engage with Bruce and Diane's solicitors in any meaningful respect.
Time for passing the accounts expired on 5 March 2015. Probate was granted, as I have said, on 5 March 2014, to Bruce and Diane.
Accounts of the executors prepared in accordance with form 4 of the Non-contentious Probate Rules are annexed to Bruce's affidavit sworn on 5 May 2015. Updated accounts, current as at 21 October 2015, are annexed to Bruce's affidavit of that date. I have examined the accounts and I am satisfied that the executors have collected the assets of the estate and paid the debts of the estate.
The approach to the passing of accounts is set out in the judgment of EM Heenan J in the case of In Re Ellis [2015] WASC 77, and I adopt and I am guided by the principles that his Honour set out in that case. The first issue that needs to be addressed is the requirement for notice under r 37(4) of the Non-contentious Probate Rules. That sub‑rule provides that notice in accordance with form 5 should be given of the filing of accounts by way of an advertisement placed on one occasion 14 days before the day fixed for the passing of accounts. The requirement for such notice may be dispensed with. I am satisfied that this is an appropriate case in which notice should be dispensed with. I have reached that view because there are only three persons who have a material interest in the estate, those being Bruce, Diane and Carolyn, and I am satisfied that Carolyn has notice of these proceedings, and she has not appeared in these proceedings or filed any objection to the accounts.
I am satisfied in those circumstances that there is, in reality, no requirement for notice to be given in accordance with the terms of r 37(4). I am also satisfied that this is a case in which accounts should be passed on the basis of a common account - no question of wilful default having arisen.
As I have already indicated, I am satisfied that the executors have disclosed all of the assets of the estate, and on the basis of my examination and review of the accounts that the distributions and payments that have been made out of the estate have been properly made in the course of the administration of the account and are properly vouched for. I am satisfied that in those circumstances the accounts should be passed.
Bruce and Diane seek a direction as to how payment of Carolyn's share of the residue should be made. I am of the view that in the first instance payment should be made in what I might term 'the usual methods'; that is, an attempt should be made to pay Carolyn's share of the residue to her by means of a trust account cheque drawn on the trust account of the solicitors of Bruce and Diane, and that that cheque should be sent to Carolyn by ordinary mail. If the attempt to effect payment of Carolyn's share by that method fails, then in my view this is an appropriate occasion for the payment into court of Carolyn's share, pursuant to the power set out in s 99 of the Trustees Act 1962 (WA).