Crown v Holt - [2024] WASC 332

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CROWN -v- HOLT [2024] WASC 332
CORAM:   COBBY J
HEARD:   2 SEPTEMBER 2024
DELIVERED          :   11 SEPTEMBER 2024
FILE NO/S:   CIV 1357 of 2023
BETWEEN:   CROWN
Plaintiff
AND
ROBERT GLENN HOLT
Defendant

Catchwords:

Succession - Will - Executor's refusal to acknowledge sister as beneficiary of residuary estate due to change of name - Due administration of estate - Turns on own facts

Legislation:

Administration Act 1903 (WA), s 43, s 44, s 45(1)

Result:

Application granted in part
Further consideration reserved

Category: B

Representation:

Counsel:

Plaintiff	:	In Person
Defendant	:	No Appearance

Solicitors:

Plaintiff	:	In Person
Defendant	:	No Appearance

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

Hyman v Permanent Trustee Co of NSW Pty Ltd (1914) 14 SR (NSW) 348
Phelan v Booth (1941) 43 WALR 60

COBBY J

These proceedings concern the plaintiff's application for due administration of the deceased estate of the late Robert Wilfred Holt by the defendant, the named executor in the deceased's will.
I find, for the reasons set out below, that the plaintiff (who has changed her name to the mononym 'Crown') is the defendant's sister, and is named as a beneficiary of the residuary estate in that will.
The defendant did not enter an appearance to the proceedings. A number of orders for substituted service were made in the course of the proceedings. At the commencement of the trial, I was satisfied that service had been effected in accordance with those orders, and, no appearance having been entered and the defendant having failed to appear when the matter was called, proceeded to hear the matter on an undefended basis.
The late Mr Holt died on 18 September 2022. Probate of his will was granted to the defendant on 9 January 2023.
In addition to appointing the defendant as executor of the estate, by his will the deceased made the following gifts:
1.the amount of $10,000 to the defendant to 'take me and my wife's remains to NZ for burial'; and
2.his car, together with his goods and chattels, to the defendant.
The will provided that the residue of the estate was to be divided in equal shares between the defendant and his sisters, referred to in the will as Tania Marie Holt and Jennifer Alexander.
In addition to the 'gift' of $10,000 to the defendant for the purpose of returning his remains to New Zealand, the will contained a direction to the defendant that the deceased's remains and those of his wife were to be returned to New Zealand for burial.
The proceedings were commenced by a writ of summons filed 12 April 2023. The plaintiff was unrepresented at that time, although she has had the benefit of legal representation at various times prior to and during the proceedings.
The issue of the writ followed correspondence between the plaintiff and the defendant, and subsequently between the plaintiff's then solicitors and the defendant, over a number of weeks, during which time the defendant refused to accept that the plaintiff was his sister.
By letter from her solicitors dated 14 March 2023, the plaintiff sought a complete copy of the grant of probate (an associate of the defendant having provided a photo of the cover page of the grant to the plaintiff) and statements of all bank accounts held by the deceased showing the balance of those accounts at the date of his death, and requested that the defendant identify when he expected to pay the plaintiff her share of the estate.
By email dated 20 March 2023, the defendant responded to that correspondence, stating:
I have received these documents from my sister Tania Marie Holt who lives in New Zealand.
All recipients who are named on the will, will receive the right documentation once the other paperwork is completed.[1]
[1] All references to the defendant's correspondence are as in the original.
The plaintiff has been known by a number of names, including Jenny Robin Holt, Jennifer Robyn Alexander, and 'Crown'. In a letter dated 21 March 2023 to the defendant, the plaintiff's then solicitors referred to the defendant having stated in an email sent on 12 March 2023 to the plaintiff that:
Its all done and dusted went to a solicitor, Everything has been closed done, Like what dad ask us to do which we have.
In the same letter, the plaintiff's then solicitors recorded that the defendant had stated in a second email of the same date that:
We have your money; We do not have any statements; As it was all done properly it is my business.
There was then a reference to a third email sent by the defendant to the plaintiff on 12 March 2023, in which the defendant said:
Go through your lawyers but it is coming out of your money; Cause that's all that's left; Then we will be charging you for left of mums jewellery; Divorcing u as you have sister since you have disowned us as well as our parents; Don't forget you already disowned us me and my father; I will get the value of the jewellery you stole; Have a great day.
I infer from those statements that, by 12 March 2023, the defendant had realised the assets of the estate and was holding that portion of the residue of the estate to which the plaintiff was entitled, but was unwilling to distribute it to her. I interpret the reference to the 'left of mums jewellery' as an allegation that the plaintiff had stolen some of their mother's jewellery.
By the same letter, the plaintiff's then solicitors again sought copies of the statements for all bank accounts held by the deceased, a statement of the distribution of the estate showing the amounts due to be paid to the plaintiff and the other beneficiaries; and payment to the plaintiff of her share of the estate.
By email dated 23 March 2023 to the plaintiffs then solicitors, the defendant said (so far as is presently relevant):
3.Also noted, that all beneficiaries named on Robert Wilfred Holts, will and testament, will receive all documents once all paperwork pertaining to Robert Wilfred Holt is completed, only those who have been entered into the residuary estate, that being the following, Robert Glen Holt, Tania Marie Holt, Jennifer Robyn Alexander.
4.As executor I refer to the email sent 14 March 2023, where David Ireland, Solicitor Director noted he is acting for a Lady Crown, daughter of deceased and a beneficiarie of the estate.
As an executor, my obligations is to provide all beneficiaries with accountability and the administration of the estate of Robert Wilfred Holt. All matters that have arised pertaining to Robert Wilfred Holt's estate, will not be addressed to further notice.
Until we can establish the validity of Lady Crown acting in the capacity of Jennifer Robyn Holt aka Alexander.
On the 16 March I was contacted by phone, by Tania Holt. stating.
1.Jennifer Robyn Holt, has revoked her birth certificate, claiming to be alive sovereign De jure, Tribal Crown. And no longer exist as Jennifer Robyn Holt aka Alexander.
2.Jennifer Robyn Holt, now takes the name, Lady Crown Turikatuku 111 sovereign de jure.
Which is trademark and has copyright protections.
…
5.Tania, states that Jennifer Robyn Holt aka Alexander has documents showing and proving that Jennifer Robyn Holt aka Alexander no longer exist and is deceased by
Birth Record 1. Source Document - Birth Certificate Application, 2. Still Born Record 1 Placenta, Birth Record 3. [Corporation (dead man walking).
So that I can properly preform my duties as a executor for the estate please provide the following within 7 days of this being served
1.That, Jennifer Robyn Holt aka Alexander provide a birth certificate as proof of registration with Birth Deaths Marriages to respond in pdf format certified true and correct copy.
The defendant's email ended as follows:
If no response is received in relation to claims made against you, court preceding against, Lady Crown acting as persons,
Jennifer Robyn Holt aka Alexander will made to compel Lady Crown acting as person, Jennifer Robyn Holt aka Alexander, to provide information and pay for legal costs.
By letter dated 24 March 2023, the plaintiff's solicitors provided certified true copies of a number of birth certificates in the names of Jenny Robin Holt and Jenny Robin Sullivan, an immigration citizenship certificate in the name of Jenny Robin Holt, a marriage certificate in the name of Jenny Robin (Holt) Alexander, a Birth Deaths and Marriages document recording the plaintiff's change of name to 'Crown' and a New Zealand Copyright certificate in respect of 'Crown'.
Further, the plaintiff's solicitors verified to the defendant that they had identified their client (the plaintiff) 'in a face to face interview and by viewing her original identification documents'.
The defendant responded (in part) by email sent on 31 March 2023, as follows:
As the administration executor, contact was made by Tania Marie Holt, a beneficiary to the will and probate. Tania Holt has asked that for the purpose of establishing validity of who is, Lady Crown, purporting to be, Jennifer Robin Holt, Tania Holt has evidential information of Lady Crown proving that Lady Crown had in fact revoke all birth certificates and documents, which are now held with the administration of, ROBERT WILFRED HOLT which show that, Jennifer Robin Holt, has revoked her birth right, which is in the documentation now held with administration of the late Robert Wilfred Holt will and probate and contains evidence of Jennifer Robin Holt nee Alexander revoking birth certificate records and now holds the, Title Sovereign De Jure, Tribal Crown by her own admission Lady Crown states that:
a)Jenny was displeased with the Birth records
B)Jenny went about revoking the birth certificate
3.So that she could stand up alive, as a Sovereign De Jure, Tribal Crown.
d)
…
Also mascrading as the beneficiarie that being, Jennifer Robin Holt when this person has revoked there birth right knowingly by Lady Crown. This has been proved by documents that where procure by Jennifer Robin Holt, who now takes the name Turikatuku III Lady Crown. (emphasis added)
I note that the defendant there admitted that Jennifer Robin Holt had taken the name 'Turikatuku III Lady Crown' the defendant went on to say:
Therefore the inheritance that is being requested is clearly still in doubt, as to deposit any amount of the inheritance to the account 'Crown' given, due to the named issued on the account namely, Lady Crown who is not the entitled beneficiary of Jennifer Robin Holt named at the time of birth.
And through Lady Crown's own admission through documents that have been procure by Lady Crown herself.
The plaintiff's solicitors responded to that email by providing to the defendant statutory declarations by each of the plaintiff, her husband and her two children to the effect that the plaintiff was named Jenny Robin Holt at birth, and subsequently Jenny Robin Sullivan, had adopted the name Jenny Robin Alexander when she married her husband Dean Kapene Alexander, and had in 2018 changed her name to 'Crown'.
The statutory declarations included copies of two New South Wales driver's licences, bearing the same licence number and photographs of what was obviously the same person, in the names of Jennifer Robin Holt and 'Crown', evidencing that Jennifer Robin Holt and 'Crown' had been accepted by the New South Wales State government as one and the same person.
I am satisfied, having regard to the same materials as those provided to the defendant, that the plaintiff is the person formerly known as Jennifer Robin Holt and, following her marriage to Dean Alexander, Jennifer Robin Alexander.
I therefore find that the plaintiff is the daughter of the deceased identified as 'Jennifer Alexander' in his will.
I further find that, despite the evidence provided by the plaintiff's then solicitors to the defendant and the defendant's recognition in his email of 31 March 2024 that his sister now went by the name 'Turikatuku III Lady Crown', the defendant has unreasonably refused to accept that the plaintiff is his sister in order to delay distributing the plaintiff's share of their father's estate to her. His stated reason for doing so, other than his denial of her identity, was his belief that the plaintiff had stolen some jewellery following their mother's death.
In those circumstances I am satisfied that the defendant has refused to perform his duties as executor, insofar as they concern the plaintiff.
Although the proceedings were commenced by writ, on 28 November 2023 Registrar Nelson ordered that the proceedings continue by way of originating summons and supporting affidavit.
Section 45(1) of the Administration Act 1903 (WA) provides:
The court may make such order with reference to any question arising in respect of any will or administration, or with reference to the distribution or application of any real and personal estate which an executor or administrator or public trustee may have in hand, or as to the residue of the estate, as the circumstances as the case may require.
By her originating summons filed 16 February 2024, which was prepared by a second firm of solicitors then acting for the plaintiff, the plaintiff sought orders that:
1. Pursuant to Order 58 Rule 2 and 3 of the Rules of the Supreme Court 1971 that:
(a) the Defendant provide full financial disclosure of the estate of Robert Wilfred HOLT ("Deceased") including but not limited to information about payments made to beneficiaries, and statements of all accounts held with financial institutions in the name of the Deceased;
(b) the Defendant administer the Deceased's estate in accordance with the Last Testament and Will of the Deceased, including but not limited to distributing the Plaintiff's share of the Deceased's estate to a nominated account of the Plaintiff.
2. The Defendant pay the Plaintiff's costs of this application on a personal and indemnity basis without any right of indemnity or reimbursement from the Deceased's estate;
3. Interest pursuant to section 32 of the Supreme Court Act 1935; and
4. Any other orders and directions that this Honourable Court deems necessary for the due and proper administration of the Deceased's estate.
Section 45(1) of the Administration Act gives the court wide power to consider and resolve a wide range of matters. In particular, the court may give directions where a beneficiary complains that the executor is not behaving even-handedly in a particular matter,[2] to order an executor to carry out the trusts of the will,[3] and to order that accounts be taken.[4]
[2] See, for example, Hyman v Permanent Trustee Co of NSW Pty Ltd (1914) 14 SR (NSW) 348.
[3] Phelan v Booth (1941) 43 WALR 60.
[4] Section 43 and s 44, Administration Act 1903 (WA).
As the defendant has apparently laboured under the misapprehension that, in changing her name, the plaintiff had excluded herself from the class of beneficiaries under the will, I will allow the defendant an opportunity to recognise that he was in error in adopting that position and to now perform his duties as executor. I consider that approach to be appropriate because, although there was no evidence of the value of the estate, I suspect that it is not substantial, and, as mentioned above, it would seem that the defendant has already realised the assets of the estate.
I will therefore declare that the plaintiff and the Jennifer Alexander named in the will are one and the same person, and order that:
1.the defendant administer the estate of the late Mr Holt according to law;
2.the defendant distribute the residuary estate of the late Mr Holt to the plaintiff in accordance with her entitlement under the will;
3.the defendant provide the following accounts:
(a)an account of the property of the late Mr Holt not specifically devised or bequeathed by the will;
(b) an account of the debts of the late Mr Holt;
(c)an account of the funeral and testamentary expenses of the late Mr Holt; and
(d)an inquiry as to what parts of the testator's personal estate are outstanding or still to be distributed to the beneficiaries.
Those accounts and the inquiry will enable the court to assess the extent of the defendant's failure to administer the estate. I will otherwise adjourn consideration of the plaintiff's claim, and allow the parties liberty to apply.
In her written submissions filed for the purposes of the hearing, the plaintiff also sought orders to the effect that the defendant be ordered to pay for flights, travel and accommodation for seven family members to travel to New Zealand to hold a memorial service and to replace a headstone in respect of the late Mr Holt arranged by the defendant, together with damages for 'executor fraud', and that the defendant be criminally charged in relation to his conduct of the administration of the estate.
Assuming (without deciding) that the court has power to make those orders, I decline to make any orders in respect of those matters for the present, orders to that effect being outside the scope of both the writ and originating process filed in the proceedings and the extent of the defendant's failure to administer the estate being still to be assessed.
I also reserve the question whether interest should be allowed to the plaintiff on any amount due to her from the estate, pending delivery of the accounts which I have ordered the defendant to provide.
Finally, I consider that it would be inappropriate to order that the plaintiff's costs of the proceedings be paid from the estate having regard to the defendant's recognition that his sister and the plaintiff were the same person in his email correspondence prior to the issue of the proceedings. I consider that this is a case where it is appropriate that the defendant pay the plaintiff's costs of and incidental to the proceedings on an indemnity basis personally, without recourse to the assets of the estate.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VR
Associate to the Hon Justice Cobby
11 SEPTEMBER 2024