COSSENS -v- PETTA [2014] WASC 117

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 117
Case No:	CIV:2269/2012	Heard:	21 FEBRUARY & 19-20 MARCH 2014
Coram:	JENKINS J	Delivered:	4/04/14
No of pages:	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
Category:	B
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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

CITATION : COSSENS -v- PETTA [2014] WASC 117 CORAM : JENKINS J HEARD : 21 FEBRUARY & 19-20 MARCH 2014 DELIVERED : 4 APRIL 2014 FILE NO/S : CIV 2269 of 2012 MATTER : Will of CARLOTTA (otherwise known as CAROLINA) PETTA late of 24 Rathay Street, Victoria Park in the State of Western Australia, Housewife

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)

BETWEEN : GLORIA LUCY COSSENS (as beneficiary under the will of CARLOTTA PETTA)

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Cossens v Petta

Details

AGLC: Cossens v Petta [2014] WASC 117
Case: [2014] WASC 117
Decision Date: 4 APRIL 2014

CaseChat Overview and Summary

Cossens v Petta involved a dispute concerning the administration of Carlotta Petta's estate. The plaintiff, Cossens, sought the removal of the defendant, Petta, as the executor of the estate due to neglect in obtaining probate and other administrative failures. The matter was heard in the Supreme Court of New South Wales.

The court was required to determine whether the defendant was both willing and competent to act as executor, and if not, whether the plaintiff was suitable to be appointed as administrator of the estate. The primary focus was on the defendant's ability to manage the estate effectively and whether the plaintiff could provide a viable alternative. The court also needed to consider the implications of the executor's neglect in obtaining probate and whether this warranted the removal of the defendant.

In delivering the judgment, the court found that the defendant was not willing and competent to act as executor of the estate. The court highlighted the defendant's neglect in obtaining probate and the failure to provide an accounting of the estate, which demonstrated an inability to manage the estate effectively. Additionally, the court concluded that the plaintiff was both willing and able to act as administrator of the estate. Consequently, the court granted the plaintiff's application to have the defendant passed over as executor and ordered the issuance of letters of administration to the plaintiff, with the will dated 16 May 1983 annexed.

Orders

Orders of the court

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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