Cossens v Petta
[2014] WASC 117
•4 APRIL 2014
COSSENS -v- PETTA [2014] WASC 117
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 117 | |
| Case No: | CIV:2269/2012 | 21 FEBRUARY & 19-20 MARCH 2014 | |
| Coram: | JENKINS J | 4/04/14 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Application that the defendant be passed over as executor of the estate of Carlotta Petta granted Application that the plaintiff be granted letters of administration, with the will dated 16 May 1983 annexed, granted | ||
| B | |||
| PDF Version |
| Parties: | GLORIA LUCY COSSENS (as beneficiary under the will of CARLOTTA PETTA) PETER PETTA (as trustee for CARLOTTA PETTA) |
Catchwords: | Succession Executors and administrators Application to remove executor Willingness and competency Neglect to obtain probate Executor passed over Succession Appointment of administrator |
Legislation: | Administration Act 1903 (WA), s 36, s 37 |
Case References: | Tsaknis v Lilburne [2010] WASC 152 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Section 36 and s 37 of the Administration Act 1903 (WA)and Inherent Jurisdiction of the Court
Section 92 of the Trustees Act 1962 (WA) and s 45 of the Administration Act 1903 (WA)
- Plaintiff
AND
PETER PETTA (as trustee for CARLOTTA PETTA)
Defendant
Catchwords:
Succession - Executors and administrators - Application to remove executor - Willingness and competency - Neglect to obtain probate - Executor passed over
Succession - Appointment of administrator
Legislation:
Administration Act 1903 (WA), s 36, s 37
Result:
Application that the defendant be passed over as executor of the estate of Carlotta Petta granted
Application that the plaintiff be granted letters of administration, with the will dated 16 May 1983 annexed, granted
Category: B
Representation:
Counsel:
Plaintiff : Ms M J Elliott
Defendant : Ms C F Holyoak-Roberts
Solicitors:
Plaintiff : Elliott & Co
Defendant : Slater & Gordon Lawyers
Case(s) referred to in judgment(s):
Tsaknis v Lilburne [2010] WASC 152
1 JENKINS J: The plaintiff seeks orders that the defendant, her brother, be passed over as executor of the estate of their mother, Carlotta Petta (the deceased) and that she be granted letters of administration, with the will annexed, of the deceased's will. The defendant counterclaims for an order that he be granted probate of the will in solemn form.
2 The deceased died on 23 September 2009 and was survived by her four adult children. The deceased left a will dated 16 May 1983 in which she appointed the defendant and Christopher Roy Pritchard Farris executors. It is agreed between the parties that the deceased left her estate, after payment of debts, funeral and testamentary expenses, to her four children in equal shares. A grant of probate has not been made.
3 The defendant has not filed an inventory of the estate of the deceased. In evidence is a document which he partially completed entitled 'Statement of Assets and Liabilities'. It lists the deceased's moveable property as a Bankwest bank account, a 1997 motor vehicle, furniture and personal effects. Values have been given for these items but two of the values have been crossed through and handwritten amendments made. It says that the total value of the deceased's moveable property is approximately $40,000. The deceased's immoveable property in Western Australia is listed as 24 Rathay Street, Victoria Park (the family home) which is said to be valued at $500,000. The only debt is said to be funeral expenses in the sum of $5,000.
4 There is a handwritten notation at the bottom of the statement which refers to real estate in Italy. The parties believe that the deceased had a proprietary interest in real estate in Italy. The defendant gave evidence that there were about four properties in Italy, including a simple residence at 40 Salita Fiera, Castelmauro, which the deceased owned or had an interest in. He gave evidence that there may be Italian family members who have an interest in some of these four properties. The defendant's oral evidence about the identity of all of the properties, was vague and confusing. For example, when he was questioned about two of the properties he said:
Elliott, Ms: Okay, so there's four properties. Which properties are they? ---The wood shed you were talking about a while back.
Elliott, Ms: And what address is the wood shed ---I – I can't remember. I haven't ---
Elliott, Ms: Didn't you say a minute ago that that's your uncle's property? --- My father kicked my brother out of the house, and then they gave him the house that my uncle --- and the wood shed belongs to three brothers: one in Argentina, one in Australia and one in Italy. And the one in Italy, he's going through what I'm going through, honest.
...
Elliott, Ms: Just a moment. How does that property become an asset of the estate? --- Well, it is an asset, because we pay tax on it.
Elliott, Ms: Well, it belongs to three brothers? --- My uncle I'm talking about that died, now. All died. And it has been – two weeks have been very bad.
So it's your uncle and his three brothers. It has got nothing to do with your mum? --- But because my mother went to Italy and looked after my nana, that nana was transferred to my mother.
So you're actually saying it's registered in your mum's name? --- Well, my mother told me my father took her somewhere in the city to sign some document because it – because my brother went back to Italy with his wife to look after my nana because she (indistinct) – she was 94. Because mum - I was taking mum to Jerusalem then, mum went to look after my nana.
All right? --- And then the property must have went to my mother. There's something wrong somewhere.
...
The second property; what's that? --- The second property is the one that my dad went there, done three storey – three storey up, didn’t finish that. They went to (indistinct) to do some paperwork there which lists it as the ---
Elliott, Ms: So it's a three storey construction; and what's the address? --- I - that was in the combined, I can't - I don't know.
What's the town? --- Town?
Yes? --- Town is Castelmauro
...
And we know that because it’s a three storey construction. And why do you think the deceased might own some of that, or ---? --- Because my father done – he put that to my mum. And I say one room each, but not finished, you can use it (ts 144 – 146).
5 The plaintiff believes that the deceased owns the property at 40 Salita Fiera, Castelmauro and is unaware of the claim of any family members, other than her siblings, to any property owned by the deceased.
6 It is not clear to me that the deceased had a legal interest in all four of the Italian properties identified by the defendant in his evidence. She may have had a moral claim to some of them.
7 The plaintiff has obtained an appraisal of the value of the property at 40 Salita Fiera, Castelmauro in the sum of 6,000 euros.
8 A market appraisal of the family home which was obtained by the plaintiff on 5 June 2012 valued it at between $930,000 to $950,000.
9 Mr Farris was apparently a member of the parties' family by marriage. He now wishes not to have anything to do with the family and on 19 February 2014 he signed a renunciation of his executorship. There is no evidence before me that he took any steps to execute the will.
Background
10 On 23 February 1939 the deceased married Alfredo Petta in Castelmauro, their hometown in Italy. There are four children of the union being the defendant aged 74, Tomaso (Tom) aged 71, the plaintiff aged 68 and Maria aged 60. The latter three ages are approximations as their ages and dates of birth are not in evidence.
11 The family immigrated to Australia in about 1952. The deceased and her husband were registered as joint tenants of the family home on 24 April 1961. The home remained the deceased's place of residence until her death. It was also her husband's place of residence until he had a stroke a couple of years before his death and he moved into a nursing home.
12 The parties' father was a fitter's assistant and the deceased did not work outside of the home.
13 The deceased's or her husband's family owned the home situated at 40 Salita Fiera, Castelmauro. Both the plaintiff and defendant believe that title to this home passed to the deceased when her husband died.
14 Sometime around 1970 the defendant became a born again Christian Pentecostal. Shortly after that the deceased converted to that religious group. The parties do not agree about the strength of the conversion of the deceased but it is unnecessary for me to make findings in that respect.
15 The defendant worked up until the early 1980s and he was then invalided out of the public service because he had numerous medical conditions including 'a crook back, arthritis, [and] thyroids (sic)'. The defendant travelled to Israel after he stopped working. His father accompanied him for part of the trip and the defendant says that it was there that his father was converted and also became a born again Christian Pentecostal. It was also around this time that the deceased executed her will.
16 In about 1993 the deceased's husband had a stroke. At that time none of the children were living at the family home. The defendant was single and living in his partly completed house in Mandurah. In about 1995 the defendant went to live with his father and the deceased at the family home in Victoria Park. He continued to live there, with irregular, but repeated, stays at his home in Mandurah, until the deceased's death.
17 For most of this period the deceased was able bodied. She did not require significant assistance in the home until the last few years of her life. However, I accept that the defendant played a significant role in looking after both of his parents, driving them to appointments (the deceased did not have a driver's licence) and in helping to maintain the family home. There is no evidence that whilst his parents were alive that the defendant paid board or financially contributed to household expenses. It seems that Tom was living in Italy and did not have day to day contact with his parents. The plaintiff and Maria saw their parents regularly and assisted them, as required.
18 The deceased's husband died on 31 January 1997. He had been in a nursing home for some time prior to his death. He left his property to the deceased.
19 I have attempted to recite the family history in chronological order but this is difficult to do as some of the dates given by the parties do not match other dates. For example in the defendant's affidavit of 1 November 2012, he says that he has resided at the family home for approximately 17 years; that is, since about 1995. He says that during this time his father was still living at home. The plaintiff also deposed that the defendant was living at the family home when their father was still living there. However, in evidence the defendant said that his father was in a nursing home for about two years before he died. Given that his father's death certificate records the death occurring on 31 January 1997, his father could not have been living in the family home when the defendant commenced to live there, or if he was, it would only have been for a short time before he went into the nursing home.
20 After his father died, the defendant continued to live with the deceased at the family home. He continued to be her main caregiver, to the extent that she needed it. The plaintiff also continued to assist the deceased. The plaintiff visited one day each week to shower and attend to the personal care of the deceased. She also stayed with her mother if the defendant went to stay at his Mandurah home.
21 The defendant was appointed an executor under the will of a friend, Berlino Calandro, who died on 12 August 2004. Mr Calandro left his estate, in equal shares, to his two adult children. The defendant failed to apply for probate of the will. Mr Calandro's daughter, Maria Papamarkos, and her lawyer contacted the defendant and Mr Alan Camp, a lawyer and the defendant's friend, who they believed may have received instructions from the defendant in respect of Mr Calandro's estate. Despite requests, the defendant did not apply for probate, return the original will to Mr Calandro's children or sign a renunciation of executorship. In March 2005, Ms Papamarkos applied for letters of administration, with the will annexed, to be granted to her. Apparently no response was received from the defendant and a registrar of this court granted letters of administration to Ms Papamarkos.
22 Over the years between the early 1980s and the deceased's death, the relationship between the parties deteriorated. The primary point of friction was the defendant's religious beliefs, although the defendant's views about his pre-eminent position as the eldest son and primary carer of his parents also produced conflict. The defendant maintains these beliefs to date. When he gave evidence I was able to observe for myself the intensity of his beliefs. It is apparent that the defendant has the view that people who have not converted to his form of religion are 'corrupt' or, at the very least, are less worthy because they have not accepted Jesus Christ into their heart. The plaintiff has deposed that the defendant made it clear to her on many occasions since his conversion that she did not belong with the deceased or in the family home because she was not a born again Christian. I accept that the defendant said this to her as it is consistent with the views that he expressed in evidence when he said:
Elliott Ms: So you're writing back to them that a meeting is not opportune? --- Yes, I don’t want to have a meeting. You can't talk to those people. You can't have a meeting with my sister and brother because they're corrupt. They're just against ---
You're saying the sister and the brother are corrupt; is that what you just said? ---Yes, because they turned against me and my father and my mother because we are born again Christian. You can't talk to them.
So which sister's corrupt? --- The one behind you.
And what evidence do you have of that? --- I'm a spiritual man, I can see it because she's telling lies.
Well, if you've got evidence to produce, produce it now?---Yes. She says my father died in 1995, and my father died at 31st – 97. She came to the funeral and didn’t even come – she didn’t come to my mother's funeral. She's corrupt with her husband.
And that makes her corrupt? --- Yes, well ---
---in your mind? --- You're going against the words of God (ts 167).
23 In order to illustrate the intensity of the defendant's beliefs it is best that I quote some of his evidence. For example, the defendant said:
Elliott Ms: So he hadn't ---? Don't accuse people that belong to God. We don't lies because we are Born Again Pentecostal. All right. And he's a Born Again Christian he doesn't tell lies. We might forget, or the wrong date, but we don't tell lies. We tell lies when we a Roman Catholic and Protestant (ts 137).
24 In addition to the defendant's religious beliefs, he has fixed views about the pre-eminence of the eldest son and those who have looked after their parents in the line of succession. In respect of the first issue the defendant gave evidence that:
All right. So they didn’t say anything about the money that was left, did they? ---My dad done everything, and mum know nothing about money. She had a lot of education to help people. She had a good – and she let my father – left it all to me. 'You're in charge. You're the oldest son' (ts 190).
25 In respect of the second issue, being the pre-eminence in succession of a child who has looked after their parents, the defendant said:
So you are now saying she had an interest, you believe possibly ---? –No, she went ---
---in three properties? --- My mother went to Italy to look after my nana. And if she looked after my nana for 14 months, that property, I would – it goes to the one that looks after the parents. That's gods law (ts 152).
26 It is apparent that by the time the deceased died the relationship between the parties had broken down, to the extent that the plaintiff did not attend her mother's funeral, which the defendant organised. In the days following the deceased's death, the defendant asked the plaintiff to return the keys to the family home to him, which she immediately did. Apart from the two occasions which I will next relate, the parties have not spoken to one another since the deceased died.
27 In early June 2010 the plaintiff and Tom, who had recently arrived in Perth from Italy, visited the defendant at the family home. The purpose of the visit was to ask the defendant to sign a piece of paper which would transfer to a neighbour a one-sixth share of the property at 40 Salita Fiera, Castelmauro. Tom had told the plaintiff that the condition of a woodshed on that property was causing water to run onto a neighbour's property and to cause damage. The neighbour had complained and was threatening to sue for damages. Tom believed that the problem could be solved by transferring that part of the land on which only the woodshed stood to the neighbour. In order to effect this, Anna Turco, an Italian lawyer, who is related to the parties, had prepared an agreement to be signed by all the deceased's children. The plaintiff and Tom signed the paper. When the plaintiff and Tom visited the defendant and asked the defendant to sign the paper, the defendant was unwilling to discuss the matter. He told them that it was a Sunday and he did not do business on a Sunday. The plaintiff said she would return the following day. The following day Tom and the plaintiff visited the defendant. The defendant stood behind the locked security screen and said words to the effect of 'I am not talking about it. It's got nothing to do you. I'm in charge'. Tom and the plaintiff then left the property.
28 There is evidence concerning the deceased's conversations with the parties in the last period of her life. On the plaintiff's account, she expressed concern about the defendant's wish to have her change her will to leave the family home to him. On the defendant's account, she told him that she wanted him to have a life interest in the family home and that the other children should not receive anything from her estate until they repented and became born again Christians. He also says that she expressed other testamentary wishes such as that he should give some of her money to the Jews and the Palestinians. It is unnecessary for me to make findings about the extent to which the defendant tried to have his mother change her will. However, it is necessary for me to make some findings about the defendant's belief that he has a life interest in the home.
29 The defendant asserts that he has a life interest in the family home because both his father and the deceased told him he could stay in the home until he died. I will not make any findings as to whether the defendant has a life interest in the family home, given that the issue may be subject to litigation between the parties in the future. Although, I note that the fact that there is no document in evidence which creates a life interest tends to the conclusion that he does not have a life interest. At law, an interest in real property can only be created in writing. A court may in the future declare that the defendant has a life interest in the family home. Until this occurs, the law does not recognise his alleged interest.
30 What is clear though is that the defendant believes, fervently, that he has a right to remain living in the family home. On one view he has expressed, he believes that he has the right to do so for life and on another view that he has expressed, he believes that he has the right to do so until each of his siblings convert to his religious beliefs. The defendant asserts his right on two bases. First, he says his parents told him that it was their wish that he remain living in the home because he had looked after them for so long. Secondly, he says he is the first born son and it is the Italian way that the first born son should stay in the family home. Consistent with these beliefs the defendant has remained living in the family home since the deceased died, without paying rent and, to a limited extent, using the deceased's money at bank to pay outgoings in respect of the property which would normally be paid by a tenant. The defendant has remained in occupation despite the plaintiff's attempts to get him to administer the will and/or pay rent.
31 The plaintiff also asserts that since the deceased died the defendant has let the family home run down. Some of the specific allegations are denied by the defendant. I am satisfied that the defendant's religious beliefs are to the effect that worldly goods are not of significant value except to the extent that they can be used as tools for god's work. Consequently, he pays minimum attention to the maintenance and upkeep of the family home. This is despite the fact that he says that his mother told him that he could keep her money at bank to pay for renovations to the home. There is no evidence before me that he has done so.
32 After the deceased died, the plaintiff instructed lawyers to write to the defendant in respect of the deceased's estate. On 30 October 2009, the plaintiff's then lawyer wrote to the defendant enquiring about the existence of a later will and asking, if the defendant had applied for probate of the 1983 will, to be advised of the date that the application for probate had been filed. It seems that no response was received in respect of that letter. Another letter was sent on 22 March 2010 on behalf of both the plaintiff and Tom. The letter records that the plaintiff, and in particular Tom, had been trying to contact the defendant, albeit unsuccessfully, to discuss the deceased's estate. The letter requested a copy of any later will together with a list of assets and liabilities of the estate.
33 In March 2010, the defendant went to see his accountant, John Yarrow, and asked him to assist him in making an application, online, for a grant of probate. The defendant had with him the letter from the plaintiff's lawyer dated 22 March 2010. He also asked Mr Yarrow to write to the plaintiff's lawyer advising them 'of the position' in respect of the application for probate. The defendant told Mr Yarrow that there was some land in Italy which had to be included in the application and, as a result, they did not complete the online forms. Mr Yarrow printed off draft affidavits of both executors, a draft statement of assets and liabilities and a motion for a grant of probate and gave them to the defendant. Mr Yarrow asked the defendant to obtain the details of the Italian property and told him to go and see a lawyer.
34 On 6 April 2010, Mr Yarrow wrote to the plaintiff's solicitor at the request of the defendant. In the letter the defendant denied having any contact or correspondence from Tom. It advised that the 1983 will was the deceased's last will. The letter advised that Mr Farris had given notice that he wished to relinquish his position as executor and hence the defendant was the sole executor. The letter referred to the Italian property. It said that it was a complication which the defendant was trying to resolve. It asserted that the value of the deceased's Italian property needed to be included in the probate application. The letter advised that once this information had been obtained the defendant would be able to apply for probate and would advise the plaintiff's solicitor once this had been completed. In fact, for an application of probate, an approximation of the value of the Italian property would have sufficed.
35 The defendant says that he saw Mr Yarrow about the deceased's estate on at least three occasions. Mr Yarrow has deposed that he only saw the defendant once about the deceased's estate. As Mr Yarrow is more likely to have kept records of his contact with his clients, I accept his evidence. I also note the defendant testified that Mr Yarrow would not lie as he was a born again Christian. The defendant may have mistakenly included his visits to Mr Yarrow to sort out tax matters in his estimate of the number of times he saw Mr Yarrow about the deceased's estate.
36 After further correspondence from the plaintiff's solicitor, the defendant wrote a letter which was sent to the plaintiff's lawyer on 27 July 2010. The defendant asked a friend Luigi Rosolin to type and then to email it to the plaintiff's lawyer, as he (the defendant) does not own a computer. In the letter, the defendant requested the plaintiff to take into consideration factors which, he said, had prolonged the process of dividing the deceased's estate. He listed the following factors:
(1) that he was 70 years old and had to organise the funeral without help;
(2) that he suffered a dog attack in November (2009?) which had required 13 stitches to his elbow, a month of disability and frequent visits to the doctor;
(3) he had surgery in February (2010?) to remove a mole cancer on his nose close to his eye;
(4) he had the flu for two weeks; and
(5) he had tried to have a meeting with his brothers and sisters but only Maria had agreed to attend. In contradiction to this statement, the defendant testified that he would not meet with the plaintiff and Tom because they were corrupt.
37 The defendant complained in the letter that the plaintiff had not attended the deceased's funeral and had not visited him when he was sick. He also complained that Tom had not visited the deceased and had only come to Australia when there was money in issue.
38 The defendant said that delay in obtaining probate was also caused by the need to search for information regarding the Italian property. He referred to the request made by the plaintiff and Tom that part of the Italian property be given to the neighbour as creating 'suspicion and more injustice'. He referred to there being 'friction and different moral [sic]' between he and Tom.
39 The letter then goes on to give an account of some of the family history, the movement of his parents in the latter part of their lives and his personal grievances against the plaintiff and Tom. He referred to the correspondence from Ms Turco and that he had found the correspondence to be 'suspicious' and 'unprofessional' for a lawyer.
40 In the letter, the defendant asserted that he was in the process of applying for a grant of probate and consulting a lawyer for assistance. He said that he had been to the Italian consulate and other places in respect of the Italian property.
41 The defendant said that due to the fact that he had been caring for his parents for 14 or 15 years, his home in Mandurah still did not have basic amenities and was not finished. In evidence the defendant said that given his age and his role in preaching and helping other people, he was no longer working on his Mandurah house. He said that he did not regret having to care for his parents 'but like in Italy and also in Australia need to be kept in account'.
42 The defendant rejected a meeting with the plaintiff's lawyer because, he said, of the way the plaintiff had acted. The defendant said he was taking advice and assistance from his lawyer who would contact the plaintiff's lawyer.
43 In the latter half of 2010, the defendant telephoned Mr Alan Camp, about the deceased's estate. The defendant did not adduce evidence from Mr Camp. He says that he also sent Mr Camp some documents including the letters he received from the plaintiff's lawyer and the draft documents prepared by Mr Yarrow in December 2010. After he sent the documents he did not hear from Mr Camp and neither did he follow up his initial contact with Mr Camp. The defendant has deposed that after he sent Mr Camp the first lot of paperwork, he received some further papers from the plaintiff's solicitor. He said that he rang Mr Camp and Mr Camp asked him to send the papers to him. When he told Mr Camp that it was a large bundle of papers, Mr Camp told him that he could not assist him. The defendant's affidavit says that this later contact with Mr Camp occurred in 2012. Thus, it seems that between the end of 2010 and sometime in 2012, the defendant did not seek legal advice about his duties as executor of the deceased's estate. It was only after he was served with this application that he instructed his present lawyers and obtained his first legal advice about his functions as executor of the deceased's will.
44 The defendant says that, on a number of occasions in 2010, he visited the Italian consul in Perth to try and find out details about the property owned by his father and the deceased in Italy. He has deposed that he also wanted to investigate the possibility that money was being held in Italy. He has deposed that he thought that there was approximately $4,000 in a bank account which may be part of the deceased's estate. The defendant did not give oral evidence about the bank account.
45 Apart from this contact with the Italian consul in 2010, the defendant has not done anything to investigate the existence or value of the deceased's property, if any, in Italy. His response in evidence was that everybody in Italy was corrupt so there was no use in pursuing it. He agreed with the proposition put to him in cross-examination that this would make it impossible for him to ever obtain probate. He also said that he had accepted the advice of his eldest cousin in Belgium not to do anything about the issue of the Italian property and probate 'until something happens'. I infer that it was advice not to do anything until he was forced to perform his duty as executor.
46 On numerous occasions in the latter half of 2010, the plaintiff's lawyer wrote to the defendant asking him to file an application for a grant of probate, expeditiously. In September/October 2010, the plaintiff's lawyer wrote to the defendant seeking a meeting between the plaintiff, her lawyer and the defendant and his lawyer. No response was received from the defendant.
47 On 21 December 2010, the plaintiff's then lawyer wrote to the defendant saying that he had been instructed to request the defendant to file the will for probate within 14 days, as 15 months had elapsed since the date of the deceased's death. No response was received to this letter.
48 The defendant did little, if anything, in 2011 to comply with his duties as executor of the estate. At the beginning of 2012, the plaintiff's lawyer wrote to the defendant requesting confirmation that he had filed the deceased's will in the court. No response was received to this letter. On 29 May 2012, the plaintiff lodged a caveat against the deceased's estate. By this time, the plaintiff was represented by her present lawyer.
49 On 11 June 2012, the plaintiff's lawyer wrote to the defendant and Mr Farris asking if they were willing to renounce their executorships of the deceased's estate. On 26 June 2012, the plaintiff's lawyer wrote to the defendant, noting that the defendant had not responded to the letter dated 11 June 2012. The letter advised that if the defendant's renunciation was not received within the next seven days, the plaintiff would be commencing these proceedings. The letter 'strongly' suggested that the defendant obtain legal advice, without delay.
50 On 27 July 2012, these proceedings were commenced by the plaintiff. The defendant was served with the relevant documents on 20 August 2012. Shortly thereafter, the defendant instructed his present lawyer and on 12 September 2012 that firm notified the plaintiff's lawyer that they were acting for the defendant in the proceedings.
51 On 22 October 2012, the defendant sent his lawyer a document which he prepared, which he says sets out his parent's wishes. The defendant has attached a copy of that letter to his affidavit sworn 1 November 2012. The affidavit states:
My father and my mother's wish is that Thomas, Gloria and Maria must repent and become born again Christians and then their share would be transferred to them. When this happens I will sort things out and we will bind together with Gods [sic] love (par 37).
52 The substance of the defendant's document which he attached to his affidavit, disregarding the bible quotations and religious stamps, states:
I am Peter Petta of 24 Rathay Street, Victoria Park the eldest son of the late parents Alfredo and Carlotta Petta and executor of my mother's estate.
It was my parent's wish for me to use the monies they had saved to renovate the family home and for me to live in the home for the rest of my life to compensate for the time I looked after her.
My father and mother's wish was that my siblings repent and become born again Christians and then their share would be transferred to them.
The back of the block can be sold to the next-door owner to the owners at the back or the side. The money from the sale can be made available to pay out my sibling, Thomas and my sibling, Gloria. The house can then be transferred to my sibling, Maria and myself.
The family home has a lot of history with a well just like one in Jerusalem which cased [sic] my father to become a born again Christian.
It was my father's wish for me as the eldest son to look after my mother and supervise everything and maintain the family home.
53 Subsequently, the defendant filed a counterclaim in these proceedings seeking a declaration that he has a life interest in the family home. This part of the counterclaim was struck out, on the application of the plaintiff. Whilst the plaintiff's application was justified, given that the counterclaim was struck out, it is regrettable that my decision may not determine all matters in issue between the parties.
54 The defendant has also counterclaimed against the plaintiff for probate in solemn form to be granted to him. He testified that if he received a grant of probate he would perform his duties as an executor according to law. He said that he would register the family home in the names of each of the deceased's children and he would remain living in it until he died.
55 Neither Tom nor Maria have signed a consent to probate being granted to either party. I am prepared to assume that Maria would not consent to the plaintiff being granted probate and would prefer probate to be granted to the defendant. I can also infer from the evidence that Tom would have the opposite view. Neither Tom nor Maria have chosen to take part in these proceedings.
The law
56 The Supreme Court has inherent power to pass over the appointment of a named executor. In addition, the Administration Act 1903 (WA) s 36 provides:
Where a person dies leaving a will but without having appointed an executor, or leaving a will and having appointed an executor who is not willing and competent to take probate or is resident out of Western Australia, the Court may appoint an administrator of the estate of the deceased, or of any part thereof, and such administration may be limited as the Court thinks fit.
57 In Tsaknis v Lilburne [2010] WASC 152 [52] - [62], Heenan J set out the legal principles applying to an application to pass over a named executor. Relevantly, his Honour said:
Section 36 of the Administration Act recognises that where a person dies leaving a will but without having appointed an executor, or having appointed an executor who is not willing and competent to take probate or is resident out of the State, the court may appoint an administrator of the estate or any part of it and that the administration may be limited as the court thinks fit. This is a partial statutory recognition of the power of the court to pass over the appointment of a named executor in such cases but it is nevertheless part of the inherent or inherited jurisdiction of the court to pass over the appointment of a named executor, or a person entitled to apply for a grant of administration, in special circumstances. …
…
There can be no doubt that this court does have power to pass over an executor who has been named in a will or a person with a right to apply for administration in exceptional circumstances and even in other circumstances. …
A series of examples in which orders passing over a named executor might be made can be found in Tristram and Cootes: Probate Practice [25-1082], [25.154] and these include cases where the person entitled is unfit [25.134]. So a sole executor in prison was passed over in Re the Estate of Drawmer (dec) (1913) 108 LT 732; where an executor had unsuccessfully propounded a forged will she was passed over in Re Paine's Estate (1916) 115 LT 935; an applicant for administration who has murdered the deceased will be passed over: In the Estate of Crippen [1911] P 108; and a spouse convicted of manslaughter will be passed over as executor: Re the Estate of S (dec) [1968] P 302 and Re Giles (dec) [1972] Ch 544.
The inherent jurisdiction of the court to pass over an applicant for probate who is a named executor has also been recognised in Re Hillston; Bar-Mordecai v Rotman (Unreported, NSWSC, Library No 9804681, 4 September 1998); In the Estate of Shephard (dec) (1982) 29 SASR 247; and Re Estate of Crane [15] - [23].
In Williams, Mortimer and Sunnucks (supra) [26-05] there is the following passage which, with respect, I adopt and apply:
'An executor may be passed over on account of his bad character; attempts to avoid tax and to delay the proper investigation of the deceased's affairs and to waste time, his neglect of his duties, where he has intermeddled and refuses to take a grant, because of his absence abroad, imprisonment, ill-health, unsoundness of mind, incompetence to take probate, disappearance; or where the estate is insolvent. (footnotes omitted)'
… Other examples of instances giving rise to an order passing over an applicant include incompatible interests of the applicant, bankruptcy or insolvency, severe ill-health, but there are no limits to the grounds upon which an applicant may be passed over. Every case must depend upon its special facts with each case to be decided upon its own merits: Re Chapman [1903] P 192 - see generally Halsbury's Laws of England, Re-issue vol 17(2) [181] and Halsbury's Laws of Australia, vol 24 [395-2550].
In Bates v Messner (1967) 1 NSWR 638; (1967) 67 SR (NSW) 187 the named executor was passed over because appointing him would place the administration of the estate in jeopardy and in In re Hunter (dec) v Hunter [1932] NZLR 911 944 - 955; [1932] CLR 317 the court observed that it may refuse to appoint anyone who would clearly misconduct himself or herself in the office of executor. …
All of the discussions of this principle emphasise that it is a serious matter to pass over an applicant for a grant who is an executor named by the deceased because, presumably, the deceased has made his or her choice of executors with knowledge of the person concerned and such a person is generally entitled to a grant of probate: Marsh v Patten (1868) 7 SCR (NSW) Eq 18; and Porteous v Rinehart (1998) 19 WAR 495, 518, so that exclusion of such a person requires special or stringent grounds: Evans v Tyler (1849) 2 Rob Eccl 128; (1849) 163 ER 1266.
The testator's choice of a designated person to be executor or co-executor implies that the deceased reposed trust in that person and considered him or her to have been suitable and capable of performing the duties required - Monty Financial Services Ltd v Delmo [1996] 1 VR 65; Estate of Rogers v Rogers [2009] WASC 358 [32]; and Uniting Church in Australia Property Trust (NSW) v Millane [2002] NSWSC 1070 [9]. Especially in relation to family affairs where it might be suggested that there is, or might be, a conflict of interest between the executor named and the due administration of the estate, it is necessary to bear in mind that the deceased can be expected to have known of relationships and circumstances existing during his lifetime which might create or lead to any expectation of any such conflict of interest and, to have made the choice of appointee in the light of that knowledge. However, this approach cannot be taken in relation to conduct or circumstances which have arisen since the death of the testator or about matters which the testator could not have been expected to have had knowledge.
Some guidance as to the exercise of the power to pass over a named executor who is an applicant for probate can also be found in cases dealing with an executor who is not 'competent' within the meaning of s 36 of the Administration Act because of misconduct in relation to the estate before probate: Hunter v Hunter (supra); Re Hillston; Bar-Mordecai v Rotman (supra); and Uniting Church in Australia Property Trust (NSW) v Millane [6] - [7]. The primary concern of the court will be to ensure that the estate will be duly and properly administered according to the terms of the will: In the Goods of Loveday [1900] P 154, 156; Bates v Messner (supra); Mavrideros v Mack [1998] NSWCA 286; (1998) 45 NSWLR 80, 107 - 108, so that the dominant consideration is the welfare of the beneficiaries: Miller v Cameron (1936) 54 CLR 572; [1936] ALR 301, 580; and Elovalis v Elovalis [2008] WASCA 141 [30] - [40].
58 In the alternative to the Administration Act s 36 and the inherent power of the court the plaintiff, relies on the Administration Act s 37, which states:
Where an executor neglects to obtain or to renounce probate within 2 months from the death of the testator or from the time of such executor attaining the age of 18 years, or where an executor is unknown or cannot be found, the Court may, upon the application of any person interested in the estate, or of any creditor of the testator, grant administration with the will annexed to the applicant, and such administration may be limited as the Court thinks fit.
59 The plaintiff submits that it is sufficient for her to be successful under s 37 to prove that the defendant has not obtained probate within two months of the deceased's death in order for the court to pass over him and grant administration of the will to her. The alternative view is that some fault has to be shown before the court will exercise power under the Administration Act s 37. For the reasons which I express below, it is unnecessary for me to resolve this issue.
Application of the law to the facts
60 I am satisfied that special circumstances exist which require me to exercise the inherent power of the court to allow the plaintiff's application to pass over the defendant as executor of the deceased's estate.
61 I acknowledge that it was the deceased's wish, expressed in the will, that the defendant perform the role of executor of her estate, and that she knew of his strong beliefs about religion and succession. I further acknowledge that the defendant has counterclaimed for a grant of probate in solemn form of the deceased's will and that he has testified that if granted probate he will perform his duties according to law.
62 Despite these matters, I am not satisfied that the defendant, if granted probate, will administer the deceased's estate according to the terms of the will and the law. The reasons which have led me to this view are as follows:
(1) the defendant has unreasonably delayed applying for probate. These proceedings were commenced nearly three years after the deceased's death and until he filed his counterclaim the defendant had not made an application for probate. Neither had the defendant brought proceedings to establish his life interest in the family home;
(2) up until the commencement of these proceedings the defendant had made inadequate enquiries to ascertain the identity and value of the Italian property, which may form part of the deceased's state;
(3) since the commencement of these proceedings the defendant has not advances his enquiries about the Italian property. He believes that it is not possible to sort out the issues in Italy and does not believe that probate can be obtained until it is sorted out;
(4) up until the commencement of these proceedings, the defendant failed to obtain legal advice about his duties as an executor or his alleged life interest in the family home;
(5) the reasons given by the defendant in his letter of 27 July 2010 are inadequate to justify the delay in applying for probate to that date, let alone for not applying for probate before the commencement of these proceedings;
(6) the history of the defendant's failed appointment as executor of the will of Berlino Calandro causes me to be very sceptical of the defendant's willingness and competency to carry out his responsibilities as executor of the deceased's estate;
(7) the defendant has intermeddled in the estate's assets by using some of the deceased's cash at bank for his own purposes, by living in the family home without paying rent and by not maintaining the home to the standard that it was during the deceased's life;
(8) the defendant has a conflict of interest between his beliefs that he has a life interest in the family home and a right to use the defendant's cash at bank, as opposed to his obligations as an executor to administer the estate according to the terms of the will, which does not recognise his life interest or permit him to use the deceased's cash at bank for his own purposes;
(9) the defendant has proceeded to date on a misunderstanding of his obligations as an executor. He has assumed that he must act on what he says were the wishes of his father even though these were not reflected in the deceased's will, they are not in writing, a court has not altered the will to include them in the will and no declaration has been made by a court to give them force and effect;
(10) not only did the defendant fail to make proper enquiries to ascertain the identity and value of the deceased's Italian property, he failed to accept the appraisal of the Italian property obtained by the plaintiff, and has given an unacceptable reason for doing so;
(11) the defendant has failed to communicate with the other beneficiaries about what he was doing or not doing to call in and distribute the deceased's estate. Neither has he provided the other beneficiaries or the court with a complete statement of assets and liabilities of the estate. He has been unwilling to meet with the plaintiff and Tom to discuss these matters; and
(12) the defendant's assertion that he will not administer the estate until the other beneficiaries convert to his religious beliefs is not compatible with his obligations as the executor of the deceased's will.
63 As these matters are more than sufficient to dispose of the plaintiff's application to pass over the defendant, I will not deal with the merits of other factors relied on by the plaintiff.
64 It is important that given the length of time since the deceased died, that her estate be 'duly and properly administered according to the terms of the will'. For nearly three years before the commencement of these proceedings the defendant failed to do that. He neglected his duties and failed to properly investigate the deceased's estate. He has used these proceedings, commenced by the plaintiff, as a vehicle for him to apply for probate. However, he has taken no steps which indicate to me that if granted probate he would administer the deceased's estate according to the terms of the will and the law. He has a clear conflict of interest between his personal interest which is that he wishes to remain living rent free in the family home and the interests of the other beneficiaries under the will. It is clear that that conflict would be an impediment to him administering the will according to its terms, if he was granted probate.
65 Taking all these matters into account, special circumstances exist which require me to pass over the defendant as executor of the deceased's will.
66 The next issue is as to whether it is appropriate to appoint the plaintiff as administrator of the will. I have not been told a lot about the plaintiff's circumstances. In her evidence, she presented as an honest but unsophisticated person. Her measured actions in respect of this matter and her preparedness to take and act on legal advice in respect of it are matters which are in her favour in an assessment of whether she is willing and competent to administer the will according to its terms and the law. Importantly, except for vague allegations made by the defendant that the plaintiff is corrupt and not a good person because of her failure to adhere to his religious beliefs, the defendant did not call any evidence that leads me to believe that the plaintiff is not competent to administer the will.
67 The plaintiff is clearly willing to administer the will in that she has, for many years, sought to have the deceased's estate administered according to the terms of the will and has brought this action in an attempt to ensure that that occurs.
68 One aspect that is of concern to me is the extent of the friction between the plaintiff and Tom on the one hand, and Maria and the defendant on the other. It would be preferable if an independent executor could be appointed to administer the will. However, neither party has suggested such a person. As I have said, it is important that the deceased's estate be administered in a timely fashion given that so much time has elapsed since the deceased's death. The choices for executor at this point are either the plaintiff or the defendant. I have made findings which make it abundantly clear that I am of the view that the defendant is not competent to take a grant of probate. Neither do I believe that he is truly willing to administer the will according to its terms and the law. As I am of the view that the plaintiff is both competent and willing to take probate of the deceased's will, it is appropriate that I order that she be granted letters of administration, with the will annexed.
69 I will hear the parties as to formal orders.
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