Fazio v Naso - [2016] WASC 385

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: FAZIO -v- NASO [2016] WASC 385

CORAM: MASTER SANDERSON

HEARD: 21 NOVEMBER 2016

DELIVERED : 24 NOVEMBER 2016

FILE NO/S: CIV 1206 of 2016

MATTER :The Estate of MARIA ANTONINA FAZIO late of 40 Skeahan Street, Spearwood, Western Australia, Retired, deceased.

BETWEEN: SEBASTIANO GIUSEPPE FAZIO as Executor of the Will of MARIA ANTONINA FAZIO
Plaintiff
AND
BIANCA NASO as Executor of the Will of MARIA ANTONINA FAZIO
First Defendant
NUNZIATA MONASTRA as Beneficiary under the Will of MARIA ANTONINA FAZIO
Second Defendant
ERIGO FAZIO as Beneficiary under the Will of MARIA ANTONINA FAZIO
Third Defendant
SEBASTIANO GIUSEPPE FAZIO as Beneficiary under the Will of MARIA ANTONINA FAZIO
Fourth Defendant
FRANCESCO FAZIO as Beneficiary under the Will of MARIA ANTONINA FAZIO
Fifth Defendant

Catchwords:

Probate - Grant of administration ad colligenda bona defuncti - Turns on own facts

Legislation:

Nil

Result:

Grant made

Category: B

Representation:

Counsel:

Plaintiff:     Dr J J Hockley
First Defendant              :     Mr J G M Fiocco
Second Defendant         :     Mr J G M Fiocco
Third Defendant            :     No appearance
Fourth Defendant           :     No appearance
Fifth Defendant              :     No appearance

Solicitors:

Plaintiff:     Success Legal
First Defendant              :     Slater & Gordon Lawyers
Second Defendant         :     Slater & Gordon Lawyers
Third Defendant            :     No appearance
Fourth Defendant           :     No appearance
Fifth Defendant              :     No appearance

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

Re Cohen (dec) [1975] VR 187

MASTER SANDERSON: This is the plaintiff's motion for a grant of administration ad colligenda bona defuncti. Literally translated that means the plaintiff is seeking a form of limited administration 'to collect the deceased's goods'. The first and second defendants opposed the application. They did so on two grounds. First, they said the facts of this case did not provide the jurisdictional basis for such a grant. Second, they said that even if such a basis existed the facts were not such as to warrant the appointment of an administrator in this case.
The relevant facts for the purposes of this application are as follows. Maria Antonina Fazio died on 25 May 2014 aged 85 years. Mrs Fazio made two wills both drawn by and executed in front of her lawyers Frichot & Frichot of Fremantle. The latter of the two wills is an updated version of the first will. Instead of leaving an equal share of the estate to each of her children as was the case in the first will it was left to that child as an appointor of their discretionary trust. The first will was dated 22 August 1998 and the second will was dated 9 June 2005. There is no dispute over the difference between the contents of the wills.
The trustees of the 2005 will were the deceased's sons, Erigo Fazio and Sebastiano Giuseppe Fazio. The executors of the 1998 will were her son Sebastiano Giuseppe Fazio and her daughter Bianca Naso. The dispute is not over who should act as the executor or executors and trustees of the wills. Rather a daughter of the deceased Nunziata Monastra with some support from her sister Bianca Naso seeks to have the 2005 will proved. The other parties Erigo Fazio and Sebastiano Giuseppe Fazio and Francesco Fazio all favour the proof of the 1998 will.
After the death of the deceased the common executor/trustee Sebastiano Giuseppe Fazio obtained medical records from Dr Mark Wilson a geriatrician at Fremantle Hospital. On 10 March 2005 Dr Wilson wrote to the deceased's general practitioner casting doubt on whether the deceased had testamentary capacity in 2005.
Beyond outlining these basic facts it is unnecessary to say anything further about the nature of the dispute between the parties. It is sufficient to note the dispute remains unresolved and given the entrenched attitudes of all concerned it is most unlikely the dispute will be resolved without the intervention of the court. The result is that it is now almost two and a half years since the deceased died and an estate worth over $6 million does not have the benefit of an administrator.
Three properties comprise the principal assets of the estate. First there is a property situated at 40 Skeahan Street, Spearwood. This was the former residence of the deceased. Under the first will this property was to be divided equally between the third defendant and the fifth defendant. Under the second will it was to be divided as to one‑half to the fifth defendant and the other half divided equally between the other defendants. The plaintiff maintains that like any residential property it requires care and maintenance and at present the estate cannot undertake those tasks. It is the first and second defendants' position the property is not in such a condition as to require a limited grant. Effectively the third defendant says the property can be left as it is.
The second asset is a shopping centre in Myaree. It is under management by professional managers who it appears take care of the day to day management of the centre and arrange for leasing of the premises. The first and second defendants say that arrangement can continue. The plaintiff maintains an administrator is required to ensure all that needs to be done to properly manage the premises is done. It is the plaintiff's position having professional managers while useful is not enough to ensure the proper running of the centre.
Finally, there is a property at Lot 19 Henderson Road, Munster. This property is a former market garden which does have some limited infrastructure. It is the first and second defendants' position that can simply be left as it is at present without any work being done. It is the plaintiff's position the property is overgrown, presents a fire hazard and must be maintained. To do that properly an administrator is required.
There are a limited number of cases in Australia which have dealt with the circumstances in which the appointment of an administrator ad colligenda bona defuncti is appropriate. Perhaps the most important of the authorities is the decision of Gillard J in Re Cohen (dec) [1975] VR 187. His Honour set out the principles in the following terms:
From earliest times in England, in the Court of the Judge Ordinary, grants of administration for special or limited purposes or of a temporary character have been made by the Court for the purpose of collecting the property of a deceased person where such property was perishable or of a precarious character and there would be unavoidable delay in the Court granting representation: see Jowitt's Legal Dictionary, 'Administrator Ad Bona colligenda'; Whitehead v Palmer, [1908] 1 KB 156. The purpose of such limited grant was fundamentally for the protection and not the disposal of the estate: cf. In the Goods of Clarkington (1861) 2 Sw and T 380, at p 382; 164 ER 1043, at p 1044. Furthermore, having regard to the history of the availability of assets for the payment of the debts of a deceased, in the courts in England, the grant was originally confined to personal property of the deceased; see In the Goods of Roberts, [1898] P 149, at p. 152. As was pointed out by Sir Francis Jeune, P., in that case, in due time because of changes in the statutory law, limited grants were extended to real estate. It would appear that that practice has now prevailed in this State because of the statutory provisions in this State: cf. s 37 of the Administration and Probate Act 1958. The characteristic features of the grant, however, have persisted to this day. If there should be some existing circumstance whereby a grant of probate or administration cannot be made promptly and the nature of the estate of the deceased person requires protection by a personal representative of the deceased, the court has clear power to and will authorize some person to collect and to protect the assets of the estate until a grant of probate of a will or full administration of an estate can be made. The foundation for making the grant is that the usual representation for some reason cannot be promptly obtained after death and the nature of the assets of the deceased require that something be done about their administration for their protection (188 ‑ 189).
In my view this is a text book case where the grant sought by the plaintiff should be made. Estates cannot simply be left in limbo. It is essential here that decisions are made. Rates and taxes must be paid. So far as the shopping centre is concerned proper instructions must be given to the agents and if leases are to be renewed it should be done in the proper fashion. Without an administrator no one is quite sure who is empowered to do what. In my view it is entirely unrealistic to expect the estate to drift while the parties squabble over which will should be propounded.
It was the first and second defendants' position if an administrator was to be appointed it should be someone independent of the parties - a trustee company or the like. In my view that is unnecessary. As was pointed out by counsel for the plaintiff the plaintiff's solicitor is very experienced and has taken the advice of counsel at every turn. The plaintiff appears to have followed that advice without question. There is nothing in the evidence to suggest that the plaintiff will not properly administer the estate knowing as he does he will be answerable to the court for any maladministration. In the circumstances the additional cost occasioned by appointing an independent administrator would not in my opinion be justified.
According I propose to make orders in terms of the minute of proposed orders dated 15 November 2016 lodged by the plaintiff. That order anticipates the costs of all parties being paid out of the estate on an indemnity basis. In my view that is an appropriate costs order.