Carr v Larussa - [2016] WASC 13

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CARR -v- LARUSSA [2016] WASC 13

CORAM: ACTING MASTER GETHING

HEARD: 30 OCTOBER & 22 DECEMBER 2015

DELIVERED : 20 JANUARY 2016

FILE NO/S: CIV 2111 of 2015

MATTER :The Estate of Giuseppe Larussa of Gracefield Park Farms, Beermullah West Road, Beermullah, Western Australia (Dec)
Section 92 of the Trustees Act 1962 (WA)

BETWEEN: ANNA CARR
Plaintiff
AND
TONY LARUSSA
Defendant

Catchwords:

Executors and trustees - Private advice application - Direction sought as to whether an administrator is justified in defending claims that there was a valid will and that she is acting under a conflict of interest

Legislation:

Trustees Act 1962 (WA), s 92

Result:

Direction given

Category: B

Representation:

Counsel:

Plaintiff: Mr S M Standing
Defendant: Mr F J Mestichelli

Solicitors:

Plaintiff: Friedman Lurie Singh & D'Angelo
Defendant: Dunns Corporate Counsel

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

Bates v Messner (1967) 67 SR (NSW) 187
Bell v Crewes [2011] NSWSC 1159
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Browne v Matthew Jaime Bassett‑Scarff as executor of the will of the late Dawn Lorraine Phillips [2015] WASC 422
Carr v Larussa Pastoral Holdings Pty Ltd [2015] WASC 300
Catherine Marie Smith as administrator of the estate of the late Keith Raymond Seaman v Seaman [2015] WASC 420
Dalrymple v Melville (1932) 32 SR (NSW) 596
Dijkhuijs v Barclay (1988) 13 NSWLR 639
Fast v Rockman [2013] VSC 18
Fysh v Coote [2000] VSCA 150
Hansen v Hansen [2013] WASC 268
Hart v Hart [2010] WASC 329
Hatsatouris v Hatsatouris [2001] NSWCA 408
La Russa v Carr [2014] WASC 497
Larussa Pastoral Holdings Pty Ltd v Carr [2015] WASCA 194
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66
Mitchell v Mitchell [2010] WASC 174
Oreski v Ikac [2008] WASCA 220
Phelan & Phelan v Booth (1941) 43 WALR 60
Plan B Trustees Ltd v Parker [No 2] [2013] WASC 216
Porteous v Rinehart (1998) 19 WAR 495
Powell v Dinwoodie [2012] WASC 139
Re Application of Perpetual Trustee Company Ltd [2003] NSWSC 1185
Re Application of Scali [2010] NSWSC 1254
Re Atkinson (Dec) [1971] VR 612
Re Estate of Anastasios Keriacules Challis (Dec) [2010] WASC 333
Re Young; Hobbs v Christchurch City [1968] NZLR 1178
Rowe v Storer [2013] VSC 385
Stanley v Stanley [2000] NSWSC 1133
Tsaknis as Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne [2010] WASC 152
Vasiljev v Public Trustee [1974] 2 NSWLR 497
Wales v Wales [2013] VSC 569
Wales v Wales [No 3] [2015] VSC 151
Wood (As Co‑Executor and Trustee of the Will of the Deceased) v Wood [No 4] [2014] WASC 393

ACTING MASTER GETHING: Giuseppe Larussa died on or about 28 November 2013.[1] He was survived by his widow Maria Angelina Gennarina Larussa, his son Tony Larussa and his daughter Anna Carr. The Deceased separated from Ms Larussa some time in 1990, but they never divorced, so she remained his wife.
[1] I will refer to Guiseppe Larussa as the Deceased.
By application dated 30 September 2014 Ms Carr applied for a grant of Letters of Administration on the basis that the Deceased died intestate. On 27 October 2014, a registrar of the court made a grant of Letters of Administration in favour of Ms Carr.[2]
[2] An appeal from this decision was commenced, but subsequently dismissed as being incompetent: La Russa v Carr [2014] WASC 497. See generally the affidavit of Anna Carr, sworn 20 July 2015, pars 32 ‑ 37. I will refer to this affidavit as the 'Carr Affidavit'.
On or about 3 March 2015 a document entitled 'LAST WILL AND TESTAMENT OF GIUSEPPE LARUSSA' was discovered in the possession of the Deceased's former solicitors, Martella & Co. The document found was a facsimile copy of an unexecuted will (Unexecuted Will). In the Unexecuted Will, Mr Larussa and Ms Carr were joint executors.
By writ dated 13 May 2015, Mr Larussa commenced an action against Ms Carr, being Supreme Court action CIV 1702 of 2015 (Substantive Action).[3] In the Substantive Action, Mr Larussa seeks:
(a)an order revoking the Letters of Administration, and a grant of probate in solemn form, on the basis that the Unexecuted Will was an informal will for the purposes of Wills Act 1970 (WA) pt X; alternatively
(b)an order revoking the Letters of Administration on the basis that Ms Carr has a conflict of interest.
On either option, Mr Larussa asserts that an independent trustee company should be appointed.
[3] A copy of the writ is at Carr Affidavit, annexure AC18, page 222.
Mr Larussa had in December 2014 commenced an action against Ms Carr in relation to the conflict of interest (CIV 2748 of 2014). On 23 March 2015, sitting as the case management registrar, I struck out the writ pursuant to Rules of the Supreme Court 1971 (WA) (RSC) O 73 r 2(2) on the basis that Mr Larussa had not issued a citation prior to commencing the action.[4]
[4] Carr Affidavit, pars 38 ‑ 41.
Consequently, prior to commencing the Substantive Action, Mr Larussa sought the issue of a citation pursuant to RSC O 73 r 8 for Ms Carr to bring the original Letters of Administration into the Probate Office of the Court (Citation). The Citation was issued and the original grant of Letters of Administration has been returned to the court.[5]
[5] Being Supreme Court Probate file CIT 7 of 2015.
The present suite of disputes is a prelude to what I perceive to be the major dispute. In her application for a grant of Letters of Administration, Ms Carr values the estate of the Deceased (Estate) at $7.9 million.[6] This includes an amount of $7 million said to be due to the Deceased by Larussa Pastoral Holdings Pty Ltd (LPH) as trustee for the Larussa Pastoral Trust (Trust), a trustee company for a trust principally controlled by Mr Larussa. She asserts that the debt was recorded in the books of account of the trustee. Mr Larussa disputes her position for reasons which I do not need to go into.[7]
[6] Carr Affidavit, annexure AC5, page 73.
[7] See generally: Carr Affidavit, pars 25 ‑ 31; affidavit of Tony Larussa sworn 21 August 2015, pars 18 ‑ 19 (I will refer to this affidavit as the 'First Larussa Affidavit').
The present application (CIV 2111 of 2015) was commenced on 20 July 2015. As commenced, Ms Carr sought directions from the court pursuant to Trustees Act 1962 (WA) (TA) s 92 on two issues:
(q)whether she was justified in defending each of the claims made against her in the Substantive Action; and
(b)whether she is entitled to continue to act as administratrix of the Deceased's Estate notwithstanding that the Letters of Administration granted to her have been brought into court pursuant to the Citation.
After the present application was commenced, the second question was considered by Master Sanderson in a decision reported as Carr v Larussa Pastoral Holdings Pty Ltd.[8] The master considered the issue in the context of an application by Ms Carr, in her capacity as administratrix of the Estate of the Deceased, against LPH for that company to produce to her certain documents relating to the Trust (being Supreme Court action CIV 1132 of 2015). This information was sought for the purpose of ascertaining the assets of the Deceased's Estate.[9] A company said to be the new trustee of the Trust, Larussa Custodian Services Australia Pty Ltd (LCSA), was added as a second defendant. The master granted the orders sought. The master considered the impact of Ms Carr delivering the original Letters of Administration to the court and concluded that this did not prevent her from bringing the application. The observations of the master on this point provide relevant background to the present application:[10]
The issue of the citation is an administrative action. It is taken by the registrar without reference to a master or a judge and it cannot affect in any legal sense the position of the administrator of the estate. Of course it may have a profound practical effect. By way of example, a financial institution will not, generally speaking, open an account in the name of an executor or administrator without citing the grant of probate or the letters of administration. If such an account had been opened and a grant had been returned to the registry pursuant to a citation then it may be improper for an administrator to continue to operate an account without giving the financial institution notice the letters of administration had been returned to the registry pursuant to the citation.
All of that does not mean administration of the estate is entirely paralysed. Under s 35 of the Administration Act 1903 (WA) the court may appoint a manager and receiver of the estate pending litigation. Further, an administrator who has returned a grant may still seek directions under s 45 of the Administration Act. It is not difficult to imagine a circumstance where an administrator would seek to use one or other of these provisions.
That leaves open the question of the status of the administrator once the letters of administration have been returned pursuant to the citation. In my view, as a matter of law the person to whom the letters of administration have been granted remains the administrator of the estate. The practical difficulties the administrator may encounter is one thing. But unless and until the letters of administration are revoked there is no basis for suggesting the administrator cannot act on behalf of the estate. It may be in certain circumstances, a court would restrain an administrator from acting. For instance, if an administrator intended to make a distribution from the estate which was inconsistent with the alternative will a court could doubtless restrain the administrator from taking that action.
In this case there is no risk to the estate. The administrator is simply doing what any administrator or executor should do - she is attempting to ascertain what the assets of the estate are. This application is not mischievous; it is necessary. The reluctance of Tony Larussa to provide documents which are necessary to establish the extent of his late father's estate seems inexplicable. He can have no complaint when the plaintiff is doing nothing more or less than what she is obliged to do in her capacity as administrator.
[8] Carr v Larussa Pastoral Holdings Pty Ltd [2015] WASC 300. See generally: Carr Affidavit, pars 42 ‑ 44.
[9] Carr v Larussa Pastoral Holdings [6], [12].
[10] Carr v Larussa Pastoral Holdings [20] ‑ [23].
The defendants appealed from this decision. An application for a stay of the decision was dismissed.[11]
[11] Larussa Pastoral Holdings Pty Ltd v Carr [2015] WASCA 194.
At the commencement of the hearing before me, counsel for Ms Carr stated that in view of the decision by Master Sanderson, Ms Carr no longer required the court to provide directions on the second question. Counsel also sought, and was given, leave to amend the first question to read: 'Whether the plaintiff is justified in defending each of the claims made against her in Supreme Court of Western Australia action CIV 1702 of 2015 in her capacity as administratrix of the estate of Giuseppe Larussa'.
The reasons address the issues of whether it is appropriate to provide a direction pursuant to TA s 92 and, if so, in what terms.
Ms Carr filed an affidavit in support of the application, sworn 20 July 2015.[12] Mr Larussa filed two affidavits in opposition to the application, sworn 21 August 2015[13] and 1 September 2015.[14]
[12] Being the affidavit which I refer to as the 'Carr Affidavit'.
[13] Being the affidavit which I refer to as the 'First Larussa Affidavit'.
[14] This affidavit appears to repeat the text of the First Larussa Affidavit.
After the conclusion of the hearing on 30 October 2015, Mr Larussa sought to reopen the case on the basis that relevant new information had come to light, which he set out in detail in an affidavit filed 16 November 2015. I heard this application on 22 December 2015. At that hearing the parties sought further time to file evidence. I did not consider this to be appropriate, and declined the application to reopen the case. As I stated in my reasons at the time, my concern was that the TA s 92 process was rapidly becoming a parallel trial process, which was not what was intended.[15] As the High Court has observed, the process is meant to be a summary one.[16]
[15] These reasons are contained in the transcript of the hearing.
[16] Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 [61] ‑ [63] (Gummow ACJ, Kirby, Hayne & Heydon JJ).

What issues arise for consideration?

The TA in s 92 provides as follows:
92.Directions, trustee may ask Court for
(1)Any trustee may apply to the Court for directions concerning any property subject to a trust, or respecting the management or administration of that property, or respecting the exercise of any power or discretion vested in the trustee.
(2)Every application made under this section shall be served upon, and the hearing thereof may be attended by, all persons interested in the application or such of them as the Court thinks expedient.
By reason of the definitions of 'trust', 'trustee' and 'personal representative' in TA s 6, TA s 92 applies to an administrator.[17]
[17] For example, see: Wood (As Co‑Executor and Trustee of the Will of the Deceased) v Wood [No 4] [2014] WASC 393; and Re Estate of Anastasios Keriacules Challis (Dec) [2010] WASC 333 [17] (Allanson J).
In the present application, the other two persons interested in the application are Mr Larussa, who is the named defendant, and Ms Larussa. It is important to observe at this point that Mr Larussa is not a 'party' to the present trustee advice proceedings. Rather, he is a participant, albeit one 'permitted to be heard and allowed to participate in the proceeding, to some extent'.[18] Ms Larussa's interests are aligned with those of Ms Carr.[19] Neither Ms Carr nor Mr Larussa, through their counsel, suggested that Ms Larussa needed to be involved in the present application. I am satisfied that this position is expedient, and that TA s 92(2) has been complied with.
[18] Wood [103](h); Macedonian [65].
[19] Carr Affidavit, par 97.
The legal principles applicable to an application pursuant to TA s 92 have been the subject of recent consideration by Kenneth Martin J in Wood (As Co‑Executor and Trustee of the Will of the Deceased) v Wood [No 4],[20] Edelman J in Plan B Trustees Ltd v Parker [No 2][21] and Allanson J in Re Estate of Anastasios Keriacules Challis (Sec).[22] I respectfully agree with and adopt the observations set out by their Honours. I also join with Allanson J[23] in adopting the following comments by Gillard J in Re Atkinson (Dec):[24]
Where an executor or trustee is in doubt as to the course of action it should adopt, it is always entitled to take the opinion of the court as to what it should do. If in doubt as to whether or not it should take legal proceedings, then it is entitled to apply to the court for directions on the matter: see Halsbury's Laws of England, 3rd ed, vol 38, pp 946 and 1023‑1024; in Re Brogden (1888), 38 Ch D 546, at p 556; [1886-90] All ER Rep 927; Chettiar v Chettiar (No. 2)[1962] UKPC 1; [1962] 2 All ER 238, at p 245. If the executor or the trustee then followed the direction of the court, it would be protected from any claim by a beneficiary or creditor arising from its action or inaction in accordance with the court's direction: see Underwood v Hatton [1842] EngR 371; (1842), 5 Beav 36; 49 ER 490; Smith v Smith (1861) 1 Dr & Sm 384; 62 ER 426. In cases of real doubt, the proper course for a personal representative or trustee to adopt is to seek the court's decision as to whether or not action should be brought, otherwise the representative or trustee might find itself paying the costs of any proceedings which a court might subsequently say were not 'properly incurred': see Re Beddoe; Downs v Cottam, [1893] 1 Ch 547, at pp 558 and 562.
[20] Wood [98] ‑ [139].
[21] Plan B Trustees Ltd v Parker [No 2] [2013] WASC 216 [37] ‑ [53].
[22] Challis [17] ‑ [18], [30]. See also: Browne v Matthew Jaime Bassett‑Scarff as executor of the will of the late Dawn Lorraine Phillips [2015] WASC 422 (Gething AM).
[23] Challis [18].
[24] Re Atkinson (Dec) [1971] VR 612, 615.
There is a jurisdictional threshold to the pursuit of relief under TA s 92, being that the applicant must point to the existence of a question concerning any property subject to a trust, or respecting the management or administration of that property, or respecting exercise of any power or discretion vested in the trustee.[25] As the decisions in Wood, Plan B and Challis illustrate, a request to the court for directions as to the position an administrator should take in relation to litigation is a well settled application of this power.[26] I am satisfied that the jurisdictional threshold is met.
[25] Macedonian [58] (Gummow ACJ, Kirby, Hayne & Heydon JJ); Wood [103].
[26] See also: Tsaknis as Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne [2010] WASC 152 [37] (EM Heenan J).
There is no express or implied limitation on the discretionary factors that may be taken into account in answering a question under TA s 92. Hence the discretion is only confined by the subject matter, scope and purpose of the legislation.[27] One context which frames the discretion is the protection given to a trustee who acts under a direction of the court in TA s 95:
95.Trustee acting under Court's direction, protection of
(1)Any trustee acting under any direction of the Court shall be deemed, so far as regards his own responsibility, to have discharged his duty as trustee in the subject-matter of the direction, notwithstanding that the order giving the direction is subsequently invalidated, overruled, set aside or otherwise rendered of no effect, or varied.
(2)This section does not indemnify any trustee in respect of any act done in accordance with any direction of the Court if he has been guilty of any fraud or wilful concealment or misrepresentation in obtaining the direction or in acquiescing in the Court making the order giving the direction.
[27] Macedonian [59].
However, if the direction is founded upon a false factual premise, or relies upon false facts, then the trustee may lose the benefit of the protection afforded by the court's direction.[28]
[28] Plan B [38]; Re Application of Perpetual Trustee Company Ltd [2003] NSWSC 1185 [24] (Young CJ in Eq).
Another context that frames the discretion is that a direction that an administrator is justified in taking or defending an action means that the administrator is entitled to be reimbursed for the costs incurred out of the estate.[29] 'Obtaining judicial advice resolves doubt about whether it is proper for a trustee to incur the costs and expenses of prosecuting or defending litigation'.[30] This is subject to review by the court when considering the costs of the litigation pursuant to RSC O 66 r9(2) which places a caveat on the right of an administrator to have his or her costs paid from the estate:
(2)Where a person is or has been a party to any proceedings in the capacity of trustee, personal representative or mortgagee, he shall, unless the Court otherwise orders, be entitled to the costs of those proceedings, in so far as they are not recovered from or paid by any other person, out of the fund held by the trustee or personal representative or the mortgaged property, as the case may be; and the Court may otherwise order only on the ground that the trustee, personal representative or mortgagee has acted unreasonably, or in the case of a trustee or personal representative, has in substance acted for his own benefit rather than for the benefit of the fund.
[29] TA s 71 provides a general power of reimbursement for 'all expenses reasonably incurred in or about the execution of the trusts or powers'.
[30] Macedonian [72]; Wood [103](i).

An administrator is still entitled to have his or her costs paid out of the estate notwithstanding that they may benefit personally from the proceedings, or have some conflict of interest.[31] The onus to prove that the administrator should not be indemnified rests with the party seeking to deny the right of indemnification.[32]
[31] Wales v Wales [No 3] [2015] VSC 151 (McMillan J) [68] ‑ [74].
[32] Wales [No 3] [58].
The nature of the inquiry under TA s 92 was considered by the High Court in the context of the equivalent NSW legislation in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand. The plurality (Gummow ACJ, Kirby, Hayne & Heydon JJ) identified the key question for the court to determine to be whether, on the material available, 'it would be proper for the trustee to defend the proceedings'.[33] Their Honours continued: [34]
But deciding whether it would be proper for a trustee to defend proceedings instituted about the trust is radically different from deciding the issues that are to be agitated in the principal proceeding. The two steps are not to be elided. In particular, the judicial advice proceedings are not to be treated as a trial of the issues that are to be agitated in the principal proceedings.
[33] Macedonian [74].
[34] Macedonian [74]. See also: Wood [103](j).
Their Honours saw no error in the approach taken at first instance of assessing whether the legal issues were 'properly arguable' and then asking whether there were 'sufficient prospects of success to warrant the trustee in proceeding with the litigation'.[35] In the second inquiry, the court will consider such issues as:[36]
(a)the nature of the case and the issues raised;
(b)the amounts involved, including likely costs;
(c)whether the likely costs to be incurred by the trustee are proportionate to the issues and the significance of the case; and
(d)the consequences of the litigation to the parties concerned.
[35] Macedonian [162].
[36] Macedonian [162]. See also: Challis [30]; Plan B [37].
In this jurisdiction, the usual form of the order is that the administrator is 'justified' in opposing the action.[37] In Plan B, Edelman J set out a more comprehensive list of the 'numerous considerations relevant to the giving of directions that concern whether litigation is, or is not, justified':[38]
[37] Plan B [47].
[38] Plan B [37].
The overlapping considerations include the following:
(i)the prospects of success;
(ii)the known means of the other party to satisfy any judgment;
(iii)the potential for the litigation to deplete the trust estate;
(iv)the costs should the application be unsuccessful, and whether those costs are proportionate to the issues and to the significance of the case;
(v)the irrecoverable costs even if the application is successful;
(vi)the nature of the case and issues raised and what will be gained if the action is to succeed; and
(vii)any public interest factors in the case of a charitable trust.
In applying these principles, it is necessary to separately address what I understand to be the three main allegations made in the Substantive Action, being:
(a)whether the Letters of Administration should be revoked, a grant of probate in solemn form issued, on the basis that the Unexecuted Will was an informal will for the purposes of Wills Act pt X;
(b)whether the Letters of Administration should be revoked on the basis that Ms Carr has a conflict of interest arising out of her engagement of Friedman Lurie Singh and D'Angelo (FLSD) to act on her behalf as administratrix, a firm in which she is a salaried partner; and
(c)whether the Letters of Administration should be revoked on the basis that Ms Carr has a conflict of interest arising between her position as administratrix and her position as a beneficiary, either in an intestacy or under the Unexecuted Will.
The allegation in (c) is not squarely raised in the statement of claim endorsed on the writ in the Substantive Action.[39] It is dealt with at length in Mr Larussa's written submissions,[40] and is an allegation which, in my view, could be included by amendment. Given the nature of the disputes between Ms Carr and Mr Larussa, it is appropriate that I express a view in relation to this allegation.
[39] Carr Affidavit, annexure AC18, pages 222 ‑ 229.
[40] See generally the defendant's submissions filed 4 September 2015.
When commenced, Ms Carr was named as the defendant without any identification of the role in which she was sued. The writ was subsequently amended to name her as the first defendant in her capacity as administratrix and as second defendant in her personal capacity (as a beneficiary). Ms Larussa was added as the third defendant (being a person whose interests would be affected if probate was granted over the Unexecuted Will).
In effect, the position that Mr Larussa considers appropriate is that in her capacity as administratrix Ms Carr should abide by the decision of the court in the Substantive Action, and that she defend it in her personal capacity. The consequence of this outcome is that it would be Ms Carr personally, and not the Estate, who was liable for the costs of the Substantive Action.
It is convenient to break the analysis into five issues:
•Are the issues relating to the Unexecuted Will properly arguable?
•Are the issues relating to the conflict of interest with FLSD properly arguable?
•Are the issues relating to the conflict of interest as both administratrix and beneficiary properly arguable?
•Should the discretion be exercised and, if so, how?
•What final orders are appropriate?

Are the issues relating to the Unexecuted Will properly arguable?

In the Substantive Action, Mr Larussa pleads that on or about 3 March 2015 a document entitled 'LAST WILL AND TESTAMENT OF GIUSEPPE LARUSSA' was located in the possession of the Deceased's former solicitors, Martella & Co. Mr Larussa pleads that the Unexecuted Will purports to embody the Deceased's testamentary intentions, as contained within pars 1 ‑ 3 of that document. He further pleads that the Deceased intended the Unexecuted Will to constitute his last will and testament. In the particulars, the Unexecuted Will is described as a facsimile copy of the original unexecuted Will. It is not executed.[41]
[41] Carr Affidavit, annexure AC18, page 225.
Ms Carr's evidence is that she had a conversation with Mr Larussa in December 2013 in relation to the Estate. One of the matters they discussed was whether the Deceased had a Will. The essence of that discussion was that, if the Deceased had a Will, then he would have made the will with a lawyer by the name of Sam Martella. Ms Carr made contact with Mr Martella, who practices under the name Martella & Co, who advised her that, having checked his records, he did not have a will for the Deceased.[42]
[42] Carr Affidavit, pars 10 ‑ 27.
Ms Carr says that the first time she became aware that the Deceased may have had a will was in March 2015 when she read an affidavit filed by Mr Larussa in CIV 1132 of 2015. Her evidence is that Mr Larussa had not previously told her this information.[43]
[43] Carr Affidavit, pars 45 ‑ 47.
Ms Carr also refers to a conversation with Mr Martella in mid‑June 2015 in which she says Mr Martella told her that he had witnessed the Deceased sign a will. In this conversation, Mr Martella denied that he had an earlier conversation with Ms Carr.[44]
[44] Carr Affidavit, pars 80 ‑ 83.
Mr Larussa's evidence is that he told Ms Carr that the Deceased had a will. He says that he last saw the will at the Deceased's house in Madeley about three weeks before the Deceased died, located in an old brown suitcase in a cupboard in the Deceased's bedroom. He says that a few weeks after one of his conversations with Ms Carr, the Madeley property was broken into, and, on his inspection, the will was no longer in the old brown suitcase. He subsequently told Ms Carr that the will was no longer at the Madeley property, and that the will had been prepared by Mr Martella.[45]
[45] First Larussa Affidavit, pars 9 ‑ 15.
An affidavit sworn by Mr Martella is annexed to Ms Carr's affidavit.[46] Mr Martella confirms that he prepared the Unexecuted Will. His evidence is that the Deceased signed the original of the Unexecuted Will in the presence of Jeremy James Knowles, Mr Martella having first translated the will into Italian for the Deceased. He says that his practice was to retain the file copy of the will, annotated with the details of execution. This practice was followed in the present case, being the hand written annotation: '1/8/91 Jeremy Knowles + I attended Joe to Execute the will SM'. The executed original was handed to the client. He also disputes having spoken to Ms Carr earlier than the conversation in mid‑June 2015.
[46] Carr Affidavit, annexure AC23, pages 246 ‑ 247.
On the facts as I have summarised them above, there are at least three issues which will need to be determined in relation to the Unexecuted Will. The first is whether the Unexecuted Will was in fact executed back in 1991. This will turn on the reliability of Mr Martella's evidence.
The second is what happened to the Unexecuted Will. On the evidence before me it appears to have been lost. Where a will is lost, it is presumed to have been revoked. The relevant principles are summarised by EM Heenan J in Hansen v Hansen in the following terms:[47]
There is now a presumption of fact, and one which is therefore rebuttable, that the original of a duly executed will which was last known to be in the custody of the testator, but after a careful and appropriately comprehensive search cannot be found, that the will was destroyed by the testator with the intention of revoking it. If there is no evidence to rebut the presumption and no other will can be located, the testator is treated as having died intestate.
[47] Hansen v Hansen [2013] WASC 268 [24] ‑ [25] (EM Heenan J).
EM Heenan J then referred to his decision in Powell v Dinwoodie where his Honour had observed the following:[48]
The law has long recognised a presumption that a will which is shown to have been in the possession of the testator but which cannot be found after his death has been destroyed animo revocandi and hence revoked - Welch v Phillips (1836) 1 Moo P C 302; 12 ER 824 and McCauley v McCauley (1910) 10 CLR 434. This presumption has been recognised and considered in a series of cases, including Orifici as Executor of the Estate of Rosaria Giuseppe Orifici v Orifici [2007] WASC 74 (Hasluck J); Dalton v Dalton (Unreported, WASC Library No 970479, 24 September 1977) (Parker J); and by myself in Scarpuzza v Scarpuzza [2011] WASC 65; Sawyer v McKenzie [2011] WASC 215; and even more recently in Proud v Proud [2012] WASC 134. Having reviewed those authorities in Sawyer v McKenzieI observed in that case [36] ‑ [37]:
'It has been said that where the will makes a careful and complete disposition of the testator's property and there are no other circumstances to point to a probable destruction animo revocandi by the testator, the presumption is so slight that it may be said not to exist; Sugden v Lord St Leonards (1876) LR 1 PD 154 and Finch v Finch (1867) LR 1 P&D 317 cited by Powell J in Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, SCNSW, 13 May 1993 [26] ‑ [27]). Nevertheless, the presumption exists and if there are circumstances implying that it is improbable that the will would have been destroyed by the testator animo revocandi, then it will be rebutted but, if not, it will be given such weight as the particular facts and circumstances suggest.
The presumption may be rebutted by evidence that the will simply went missing or was lost, as opposed to having been destroyed with the necessary intention: Re Hampshire [1951] WN 174. The presumption may also be rebutted by evidence that the testator lacked the necessary capacity to revoke the will by destroying it.'
[48] Powell v Dinwoodie [2012] WASC 139 [32] (EM Heenan J).
This also involves a factual inquiry. I have set out Mr Larussa's evidence on the Unexecuted Will above. Interestingly, in the evidence before me, the correspondence passing between the parties discussing the possibility of joint appointment as administrators contains no mention of the Unexecuted Will. Indeed, in a letter dated 30 December 2013 from Mr Larussa's lawyers to Ms Carr, Mr Larussa's lawyer spoke of Mr Larussa's intention to apply for a grant of Letters of Administration.[49] No doubt this issue will be canvassed closely in cross examination.
[49] Carr Affidavit, annexures AC2 ‑ AC5, pages 28 ‑ 124.
The third issue is whether the Unexecuted Will is an informal will for the purposes of Wills Act pt X. The key provision in Wills Act pt X is s 33(2)(a) which provides that a 'document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in the manner required by this Act, constitutes … a will of the person … if the Supreme Court is satisfied that the person intended the document to constitute the person's will'. The Unexecuted Will would comprise a 'document' for the purposes of s 33(2)(a).[50] The court 'needs to evaluate the evidence with great care in accordance with the Briginshaw v Briginshaw principle'.[51]
[50] As defined in Wills Act s 32(1).
[51] Referring to Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362 ‑ 636 (Dixon J); Fast v Rockman [2013] VSC 18 [48]; Rowe v Storer [2013] VSC 385 [34] (McMillan J).
The relevant principles are set out in Oreski v Ikaci.[52]This is a decision on the previous version of the informal wills power in the Wills Act, though the reasoning is still applicable. Newnes JA (Martin CJ & McLure JA agreeing) stated:[53]
[52] Oreski v Ikac [2008] WASCA 220.
[53] Oreski [52] ‑ [55].
In Hatsatouris v Hatsatouris [2001] NSWCA 408 [56], Powell JA (with whom Priestley and Stein JJA agreed) identified three questions of fact that arise under the New South Wales equivalent to s 34, those questions being:
1.was there a document?
2.did the document purport to embody the testamentary wishes of the deceased?
3.did the evidence satisfy the court that, either at the time the document was brought into being or at some later time, the deceased, by some words or act, demonstrate that it was their intention that the document should, without more on his or her part, operate as his or her will?
That approach was followed in [Re Estate of Perriman (Dec) [2003] WASC 191] and by the learned primary judge in this case. In my respectful opinion, his Honour was right to do so. For present purposes, there is no material difference between s 34 of the Act and its New South Wales counterpart.
It is, however, important always to bear in mind that while it is necessary that the document in question sets out the deceased's testamentary intentions, that is not of itself sufficient. [The section] does not enable any document which expresses the deceased's testamentary wishes to be admitted to probate. The document must be intended to be the legally operative act which disposes of the deceased's property upon their death; that is, it must have been intended by the deceased to have present operation as his or her will. A person may have set down in writing their testamentary intentions but not intend that the document be operative as a will. Thus, for example, it will not be sufficient if it is a document intended to record gifts or intended gifts during the deceased's lifetime, or to be a note of instructions, or a draft will or a 'trial run': … As Young CJ in Eq pointed out in Macey v Finch [2002] NSWSC 933 [23], even where a draft will has been prepared in accordance with the deceased's instructions, it is quite common for testators to change their mind after giving instructions or on seeing the draft will.
It is therefore of fundamental importance that the person seeking to propound the document establish that the deceased, by some words or act, demonstrated an intention that, without more, the document should have effect as his or her will.
The present case raises an issue relating to the construction of pt X, namely which document the Deceased intended to constitute his will. Ms Carr's position is that in order for the Unexecuted Will to be an informal will, the Deceased must have intended the Unexecuted Will to be 'the document' which constituted his will 'without more on his part';[54] this cannot be the case (she says) as the Deceased, if he signed the original of the Unexecuted Will, could only have intended the signed original to constitute his will.
[54] Quoting from the decision in Hatsatouris v Hatsatouris [2001] NSWCA 408, see above [43].
Mr Larussa submits that it is sufficient that the Deceased intended the terms set out in the Unexecuted Will to constitute his will. The decision in Mitchell v Mitchell is cited in support, in which probate was granted over a draft will, where there was evidence that the deceased had read the document, confirmed his approval and said he was going to sign it before his died, but did not do so.[55] The decision in Mitchell was followed by McMillan J of the Victorian Supreme Court in Rowe v Storer.[56] The decision on Mitchell was not followed by White J of the New South Wales Court Bell v Crewes, who instead followed Oreski, stating that the 'legislation expressly requires that the deceased intend that the document form or constitute the person's will'.[57]
[55] Mitchell v Mitchell [2010] WASC 174.
[56] Rowe [40] ‑ [41].
[57] Bell v Crewes [2011] NSWSC 1159 [29] ‑ [48].
I am satisfied that these three issues are properly arguable.

Are the issues relating to the conflict of interest with FLSD properly arguable?

The conflict of interest in relation to FLSD is pleaded in the statement of claim endorsed on the writ.[58] Mr Larussa pleads that, Ms Carr, as administratrix, owes a duty to the beneficiaries of the Estate:
(a)not to put herself in a position of conflict; and
(b)not to profit from her position.
[58] Carr Affidavit, annexure AC18, pages 226 ‑ 227.
In relation to the former, Mr Larussa pleads that Ms Carr has retained FLSD as the legal advisors in her capacity as administratrix. The particulars read as follows:
As administratrix, the defendant has a duty to represent the estate, by inter alia, providing instructions to and seeking legal advice from lawyers. By retaining her own firm as lawyers, the defendant is acting both as client and as adviser. Further, the defendant is in a position of conflict as she has a duty not to profit from her position as administratrix but a conflicting interest in profiting as a salaried partner from the provision of legal advice to the estate.
As to her duty not to profit from their position, Mr Larussa pleads that as a salaried partner of FLSD, Ms Carr has benefited or stands to benefit by retaining that firm in her capacity as administratrix. The particulars to this allegation read:
As salaried partner of the firm, the defendant has profited, or further in the alternative, will profit from legal fees incurred by the Estate and paid or payable to the Defendants Firm for legal advice, to her, in her capacity as administratrix
The functions of an administrator are fiduciary in nature.[59] Ms Carr clearly owes the duties alleged by Mr Larussa.[60] Her position is that the alleged conflict of interest does not arise on the facts.
[59] Porteous v Rinehart (1998) 19 WAR 495, 502.
[60] See generally: Dal Pont GE & Mackie KF, Law of Succession [12.21] ‑ [12.23] (LexisNexisButterworths, Australian, 2013).
Ms Carr gives the following evidence about her position at FLSD:[61]
(a)the primary area of practice is family law;
(b)she does not act for clients or provide advice in relation to commercial litigation or probate and administration;
(c)she has not during the course of acting as the administratrix of the Estate provided any advice to the Estate connected in any capacity as a solicitor of the Estate;
(d)the advice provided to her in her capacity as administratrix of the Estate has been provided by commercial solicitors who practice in that area;
(e)Ms Carr is employed by a trustee company which provides her services to FLSD;
(f)the remuneration for the work she does for FLSD comprises a fixed annual salary, a commission component paid on fees received by FLSD for work done by her personally and her statutory superannuation entitlements;
(g)she does not receive any remuneration which is calculated or arrived at by reference to the profits of FLSD or the trustee company; and
(h)in respect of the matters relating to the Estate in which she has instructed FLSD, she has not in any way personally benefitted directly or indirectly from any fees that FLSD have charged for that work, and will not do so in the future.
[61] Carr Affidavit, pars 84 ‑ 90.

On this evidence, I am satisfied that the position that no conflict of interest arises is properly arguable.
Even if there was a conflict of interest, there is then the issue of whether the conflict of interest is sufficient to warrant Ms Carr's removal as administratrix.
The court has the inherent jurisdiction to remove an executor or administrator 'for just cause' by revocation of the grant of probate or administration pursuant to which the person was appointed.[62] 'It is rare for a court to remove an executor or trustee, save in exceptional circumstances'.[63] 'The power to remove an executor or trustee is a delicate one which must be exercised cautiously'.[64] The dominant consideration is the interests of the beneficiaries in the due and proper administration of the estate.[65] 'Each case depends on the facts and it is a matter of what is best for the welfare of the trust estate as a whole'.[66] The existence of a conflict of interest is not sufficient of itself to warrant the exercise of the power.[67] There needs to be 'mischief at a reasonably high level of seriousness'.[68] In Fysh v Coote, Ormiston JA relevantly stated:[69]
[The] existence of conflicts of interest between an executor and the estate or the beneficiaries does not of itself render an executor unfit… It is the inability to act independently and to deal adequately with conflicts and potential conflicts which leads to the need to remove an executor.
[62] Phelan & Phelan v Booth (1941) 43 WALR 60, 61 (Nothmore CJ); Bates v Messner (1967) 67 SR (NSW) 187, 191 ‑ 192 (Asprey JA); Porteous (506).
[63] Porteous (518).
[64] Porteous (518).
[65] Porteous (505 ‑ 508, 512); Fysh v Coote [2000] VSCA 150 [20], [25] (Ormiston JA, Batt & Chernov JJA agreeing); Bates (191 ‑ 192).
[66] Wales v Wales [2013] VSC 569 [43] (McMillan J); Porteous (505 ‑ 506); Fysh [20]; Stanley v Stanley [2000] NSWSC 1133 [9] ‑ [10] (Bryson J); Bates (191 ‑ 192).
[67] Porteous (514, 518); Wales [37] ‑ [83].
[68] Porteous (514).
[69] Fysh [25].
Mr Larussa pleads in the statement of claim endorsed on the writ that he and Ms Carr are not capable of properly carrying out their functions as joint executors and trustees under the Unexecuted Will. He says that their relationship has irretrievably broken down and that they are estranged and in conflict. He says that, if it is found that the Deceased died intestate, the Letters of Administration issued to Ms Carr should be revoked, and there should be Letters of Administration granted to an independent trustee company. The evidence reflects the pleaded position.[70]
[70] See generally: First Larussa Affidavit, pars 28 ‑ 39.
Ms Carr identifies a number of benefits to the Estate from her use of FLSD as solicitors, including a discount on fees charged and an agreement to defer payment.[71] She also identifies the costs which she says the Estate would incur by using an independent trustee company.[72] Her opposition to the appointment of an independent trustee company is based on the commission and administration fee which it would charge, and which she will not.[73]
[71] Carr Affidavit, par 91.
[72] Carr Affidavit, pars 101 ‑ 108.
[73] Carr Affidavit, pars 98, 108.
In view of caveats placed on the exercise of the inherent jurisdiction to remove an administrator, and the evidence of Ms Carr, I am satisfied that Ms Carr's position that she should not be removed as administratrix is properly arguable.

Are the issues relating to the conflict of interest as both administratrix and beneficiary properly arguable?

Mr Larussa's position is that Ms Carr is in a position of conflict of interest as she is both administratrix and a beneficiary. In submissions filed on his behalf, the position is put that Ms Carr's position as a beneficiary will suffer if the Estate is distributed in accordance with the Unexecuted Will as opposed to an intestacy.[74] She will receive a marginally smaller proportion of the Estate under the Unexecuted Will (one quarter)[75] than in an intestacy (just less than a third).[76] It follows, says Mr Larussa, that Ms Carr has a significant personal interest in seeking to defend the Substantive Action. The submissions continue:
It follows that by reason of such personal interest the Plaintiff may not act in the interests of the estate generally in defending the Revocation proceeding that may be acting in their own interests as a beneficiary. Further, the Plaintiff may not act impartially and in objectively in making decisions regarding the defence of the Revocation proceeding. In particular, who interests are in direct conflict with those of the Defendant.
[74] Defendant's submissions filed 4 September 2015, pars 8 ‑ 22.
[75] First Carr Affidavit, annexure AC21, page 238.
[76] The first $50,000 goes to Ms Larussa as the surviving wife, with the residue to be divided equally between Ms Larussa, Mr Larussa and Ms Carr: Administration Act 1903 (WA) (AA) s 14.
His position is that:
(a)Ms Carr in this case should not be able to use the funds of the Estate for the purpose of effectively defending her entitlements as beneficiary;
(b)Ms Carr could not act in the interests of all of the beneficiaries of the Estate in defending the Substantive Action when her interest is in direct conflict with his interest;
(c)if any lawyer retained to act for Ms Carr in her capacity as the administratrix of the Estate provides advice to her in the Substantive Action which is contrary to her interests as a beneficiary, she will be in a position of conflict of interest, and it is difficult to see how such conflict of interest could be resolved in the interests of the Estate; and
(d)she is a witness of fact.
The principles and observations set out in relation to the conflict of interest with FLSD apply equally to the second conflict of interest.
In the present case, I consider that it is properly arguable that there is no conflict between Ms Carr's interests as a beneficiary and her interests as the administratrix. There is in fact an alignment of interests; as set out above, she receives a marginally smaller proportion of the Estate under the Unexecuted Will than on an intestacy. Further, her duty to ensure that all the assets of the Estate are identified and gathered in, including the alleged $7 million trust distribution, is again aligned with her personal interest.[77] I note that I have not been asked to provide a direction as to whether Ms Carr is justified in pursing litigation in relation to the $7 million trust distribution in her capacity as administratrix; that is to await another day. There is also an aligned interest in resolving the current proceedings on a cost effective basis, minimizing the amount of the Estate's funds which are spent.
[77] AA s 43.
In any event, as with the conflict relating to FLSD, even if there was a conflict of interest, in my view it is properly arguable that the conflict is not sufficient to justify her removal as administratrix.

Should the discretion be exercised and, if so, how?

The court has a discretion as to whether to provide a direction under TA s 92.[78] If the material put before the Court is insufficient for the court to make a confident answer to the relevant issues then discretion will generally be exercised to refuse to make any directions.[79] Alternatively, the Court may have extensive material, and yet still consider that the appropriate exercise of the discretion is to decline to provide an answer to the question posed, thereby leaving the applicant to 'run all risks of personally funding their decision'.[80]
[78] Wood [103].
[79] Plan B [38]; Wood [110].
[80] As occurred in Wood [183] ‑ [187].
Ms Carr did not present the court with a legal opinion as to her prospects of success. As Edelman J observed in Plan B, this is ordinarily required:[81]
A court will usually be reluctant to exercise discretion in favour of sanctioning, as justified, a course of action by a trustee unless the trustee has taken reasonable steps necessary to form its own opinion on the subject. Where the direction sought is that legal action is justified then it will generally be necessary for the trustee to obtain a legal opinion before approaching the Court. This is because the trustee should have taken reasonable steps to form its own opinion on the subject about directions which are sought before approaching the Court for directions. Legal action should never be commenced unless the trustee is satisfied that it is properly arguable.
[81] Plan B [48] (footnotes omitted).
What is significant is that the trustee has received an opinion from counsel, and taken it into account in forming a decision as to whether or not to litigate. Courts are reluctant to review such an opinion.[82] The prevailing view is that it should not be the practice of courts to assess the prospects of success by reference to an 'expert opinion' from senior counsel.[83] Where the application is made inter partes, 'almost any matter which could be contained in an expert opinion could also be made in submissions'.[84] This is what has occurred in the present case.
[82] Plan B [40] ‑ [49]; Wood [119] ‑ [130].
[83] Plan B [42]; Wood [123].
[84] Plan B [43].
In the circumstances of the present case, and given the detail in which counsel for both Ms Carr and Ms Larussa presented oral and written submissions, the fact that Ms Carr has not obtained counsel's opinion does not count against the exercise of the discretion. The issues going to merit were very well ventilated in the materials before me.
As to the remaining considerations set out above [26], making the direction sought will inevitably lead to the depletion of the funds of the Estate. However, aside from costs, the Substantive Action does not otherwise put the funds of the Estate at risk. The litigation history between Ms Carr and Mr Larussa to date does not give me great confidence that the costs of the Substantive Action will be proportionate to the issues in dispute in that action. However, there will inevitably be some tactical manoeuvring in the Substantive Action which will serve as a prelude to the determination of the dispute as to whether the $7 million trust distribution forms part of the Estate, a more complex issue. In terms of the costs to the Estate if Mr Larussa is not successful in the Substantive Action, Mr Larussa is entitled in the administration to just less than a third of the Estate, which comprises around $900,000 aside from the disputed trust distribution. Ms Carr could seek payment of any costs order out of Mr Larussa's entitlement before making a distribution to him.[85]
[85] See for example: Catherine Marie Smith as administrator of the estate of the late Keith Raymond Seaman v Seaman [2015] WASC 420.
Another relevant factor is the type of trust, with the application of TA s 92 tending to vary with the type of trust involved.[86] Here the rights are primarily of a private nature, with Ms Carr being both the administratrix and a beneficiary, and being sued in both capacities. Given the amount which Ms Carr would be entitled to receive either under the Unexecuted Will or on an intestacy, it appears to me that she has the personal capacity to fund the defence (even assuming that the $7 million trust distribution is not part of the Estate). However:[87]
It is … not right to see a trustee's application for judicial advice about whether to sue or defend proceedings as directed only to the personal protection of the trustee. Proceedings for judicial advice have another and no less important purpose of protecting the interests of the trust.
[86] Macedonian [67].
[87] Macedonian [72].
In the present case, there is a public interest in protecting the integrity of the appointments of personal representatives in the non‑contentious probate jurisdiction. Given that the issue of the Unexecuted Will has been squarely raised, the nature of the court's supervisory jurisdiction over the Deceased's Estate means that there will need to be a trial of the issues for the court to resolve the doubt, or that a proposed compromise will need to be closely scrutinised.[88]
[88] See generally: Re Young; Hobbs v Christchurch City [1968] NZLR 1178, 1179 (Wilson J); Hansen [17] ‑ [18], [30] ‑ [31].
Accordingly, I am satisfied that there are sufficient prospects of success to justify Ms Carr defending the Substantive Action. The central issue is in what capacity Ms Carr should do so. Ms Carr says it should be in her capacity as administratrix. Mr Larussa says that she should do so personally. He says that the Substantive Action is effectively a dispute between beneficiaries in which each beneficiary is concerned to pursue or defend a position which is advantageous to that beneficiary. This invites a consideration of the duties and role of an administrator.
The 'real object of administration … [is the] due and proper administration of the estate'.[89] The core duties of an administrator are set out in Administration Act 1092 (WA) s 43, being to:
(a)collect and get in the real and personal estate of the deceased and administer it according to law;
(b)file an inventory of the estate of the deceased, and pass his accounts relating thereto within such time, and from time to time, and in such manner as may be prescribed by the rules or as the Court may order;
(c)when required to do so by the Court, deliver up the grant of probate or administration to the Court.
[89] Hart v Hart [2010] WASC 329 [19] (Jenkins J).
Within the scope of administering the estate 'according to law' is the duty to pay the creditors of the estate and to distribute the estate according to the will or AA.[90] There is also a duty to protect the estate and safeguard the interests of the beneficiaries.[91]
[90] Porteous (502) (White J).
[91] Dalrymple v Melville (1932) 32 SR (NSW) 596, 603 (Long Innes J).
In the context of an application under the Family Provision Act 1971 (WA), the administrator has a duty, or perhaps more accurately a role, to 'defend the will', which role may justifiably be discharged by both contesting the claim and compromising it.[92]
[92] Vasiljev v Public Trustee [1974] 2 NSWLR 497, 503 (Hutley JA, Hardie & Reynolds JJA agreeing); Dijkhuijs v Barclay (1988) 13 NSWLR 639, 654 (Kirby J, Hope JA agreeing); Re Application of Scali [2010] NSWSC 1254 [10] (Brereton J); Browne [14].
The issue for present purposes is whether it is part of the role of the administrator to defend the validity of the appointment. An administrator is appointed by order of the court, typically in the non‑contentious probate jurisdiction by letters of administration. This means that a probate registrar is satisfied that the appointment is valid. The caveat process exists to prevent an administrator from being appointed where there is contention about the basis for the appointment.[93]
[93] AA pt IV.
In my view, it is part of the role of a personal representative, in particular an administrator, to defend the validity of the appointment. This is part of the due and proper administration of the estate.[94] In Re Young; Hobbs v Christchurch City Wilson J of the New Zealand Supreme Court made the following observations about the duty of an executor:[95]
It is the duty of an executor of any will which he believes may be the valid last will of the testator to propound it and to take all proper steps to prove its validity. It is not his duty to decide, in any doubtful case, whether or not he should do so, it being the function of the Court to resolve such doubt. If he is not prepared to propound a will which appoints him executor he should renounce his right as such. If a person is named as executor in more than one will and he is uncertain which is the last valid will he should propound each one, as alternatives.
By analogy, it is for the court and not the administrator to resolve doubts over the appointment, and it is the role, indeed duty, of the administrator to take all proper steps to prove or defend the validity of his or her appointment.
[94] Hart [19].
[95] Re Young (1179).
This position is consistent with the decision in Tsaknis in which the court held than an executor was justified in opposing an application for a grant of double probate by a co‑executor to whom leave was given to apply in the original grant of probate.[96]
[96] Tsaknis [75].
As with an application under the FPA, the role may justifiably be discharged by both contesting an application to set aside the appointment and appropriately conceding an application (for example where a properly executed will is subsequently found). Though, as I have noted, a compromise will be reviewed by the court. In the present case, I am of the view that Ms Carr as administratrix is justified in defending the validity of her appointment, being the Unexecuted Will claim. By analogy with cases in which an administrator defends an application under the FPA, in doing so, she also has a duty to ensure that all relevant information is placed before the court.[97]
[97] Scali [10]; Vasiljev (503); Dijkhuijs (654).
As to the conflict of interest arguments, an application under TA s 92 by an administrator who has been sued for breach of trust 'should be seen as a standard instance to which [s 92] can in appropriate circumstances apply' and not one 'which should rarely if ever succeed'.[98] In part, this is so that the administrator can resolve the uncertainty as to whether she will be entitled to an indemnity for her costs of defence.[99]
[98] Maecdonian [70].
[99] Maecdonian [70].
In my view, just as it is part of the role of a personal representative to defend the validity of the appointment, it is also part of the role of a personal representative, and in particular an administrator, to defend the way in which the administration has been conducted. Again, that role may justifiably be discharged by both contesting a claim or compromising it, or indeed contesting it until such time as a meaningful compromise can be reached.[100] The issue of whether the administrator will be justified in contesting or compromising a particular claim involving an allegation of misconduct depends on all the facts and circumstances of the case. The decision in Wood is an example of where the executors could not persuade the court that they were justified in defending their conduct, which involved serious allegations of conflict, delay and bias.[101] In the present case, I am so satisfied. Accordingly, I am of the view that Ms Carr as administratrix is also justified in defending the conflict of interest claims.
[100] The directions I made in Browne expressly contemplated this scenario.
[101] Wood [133].
I am satisfied that making the direction sought is in the best interests of the beneficiaries of the Estate as a whole, would advance the due and proper administration of the Estate, and would otherwise be prudent.[102]
[102] Challis [30]; Hart [22].

What final orders are appropriate?

For the reasons set out above, I am satisfied that it is appropriate to make a direction in the terms sought, namely that Ms Carr is justified in defending each of the claims made against her in Supreme Court of Western Australia action CIV 1702 of 2015 in her capacity as administratrix of the Estate of Giuseppe Larussa.
As to costs, it is well established that an executor seeking directions under TA s 92 should have his costs to be taxed paid out of the Estate and on an indemnity basis.[103] As I have previously noted, the hearing is not a true inter partes hearing, so it is not appropriate that Mr Larussa pay Ms Carr's costs. I am of the preliminary view that the costs of this application should be taxed or fixed on an indemnity basis and be immediately paid out of the Estate.
[103] Tsaknis [82]; Wales [56]; RSC O 66 r 9(2).
As to Mr Larussa's costs, my preliminary view is that there should be no order as to those costs.