Frances Louise Cronan as executrix of the will of Henry John Regan v Cheryl Ann Coates as universal beneficiary under the will of Henry John Regan [No 2]
[2024] WASC 184
•16 MAY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: FRANCES LOUISE CRONAN as executrix of the will of HENRY JOHN REGAN -v- CHERYL ANN COATES as universal beneficiary under the will of HENRY JOHN REGAN [No 2] [2024] WASC 184
CORAM: WHITBY J
HEARD: 6 MAY 2024
DELIVERED : 6 MAY 2024
PUBLISHED : 16 MAY 2024
FILE NO/S: CIV 1745 of 2022
BETWEEN: FRANCES LOUISE CRONAN as executrix of the will of HENRY JOHN REGAN
First Plaintiff
BRYN EDWARD REGAN as executor of the will of HENRY JOHN REGAN
Second Plaintiff
AND
CHERYL ANN COATES as universal beneficiary under the will of HENRY JOHN REGAN
First Defendant
JOHN HENRY REGAN as universal beneficiary under the will of HENRY JOHN REGAN
Second Defendant
MARK JAMES REGAN as universal beneficiary under the will of HENRY JOHN REGAN
Third Defendant
HELEN CATHERINE FOSTER as universal beneficiary under the will of HENRY JOHN REGAN
First-named Fourth Defendant
FRANCES LOUISE CRONAN as universal beneficiary under the will of HENRY JOHN REGAN
Second-named Fourth Defendant
KAYE SUZANNE REGAN as universal beneficiary under the will of HENRY JOHN REGAN
Third-named Fourth Defendant
PAUL CHRISTOPHER REGAN as universal beneficiary under the will of HENRY JOHN REGAN
Fourth-named Fourth Defendant
ROXANNE MAY KERR as universal beneficiary under the will of HENRY JOHN REGAN
Fifth-named Fourth Defendant
KEVIN GEORGE REGAN as universal beneficiary under the will of HENRY JOHN REGAN
Sixth-named Fourth Defendant
BRYN EDWARD REGAN as universal beneficiary under the will of HENRY JOHN REGAN
Seventh-named Fourth Defendant
DAVID REGAN as universal beneficiary under the will of HENRY JOHN REGAN
Fifth Defendant
CHERYL ANN COATES as universal beneficiary under the will of HENRY JOHN REGAN
First Plaintiff by Counterclaim
JOHN HENRY REGAN as univeral beneficiary under the will of HENRY JOHN REGAN
Second Plaintiff by Counterclaim
MARK JAMES REGAN as universal beneficiary under the will of HENRY JOHN REGAN
Third Plaintiff by Counterclaim
ROXANNE MAY KERR as universal beneficiary under the will of HENRY JOHN REGAN
First-named Fourth Plaintiff by Counterclaim
KEVIN GEORGE REGAN as universal beneficiary under the will of HENRY JOHN REGAN
Second-named Fourth Plaintiff by Counterclaim
FRANCES LOUISE CRONAN as executrix of the will of HENRY JOHN REGAN
First Defendant by Counterclaim
BRYN EDWARD REGAN as executor of the will of HENRY JOHN REGAN
Second Defendant by Counterclaim
Catchwords:
Probate - Wills and estates - Informal will - Ignore later will - Compromise - Proof in solemn form
Legislation:
Rules of the Supreme Court 1971 (WA)
Wills Act 1970 (WA)
Result:
Plaintiffs' claim dismissed
Force and validity of the 2010 Will pronounced
Category: B
Representation:
Counsel:
| First Plaintiff | : | E Hensler |
| Second Plaintiff | : | E Hensler |
| First Defendant | : | P MacMillan |
| Second Defendant | : | P MacMillan |
| Third Defendant | : | P MacMillan |
| First-named Fourth Defendant | : | No appearance |
| Second-named Fourth Defendant | : | No appearance |
| Third-named Fourth Defendant | : | No appearance |
| Fourth-named Fourth Defendant | : | No appearance |
| Fifth-named Fourth Defendant | : | P MacMillan |
| Sixth-named Fourth Defendant | : | P MacMillan |
| Seventh-named Fourth Defendant | : | No appearance |
| Fifth Defendant | : | No appearance |
| First Plaintiff by Counterclaim | : | P MacMillan |
| Second Plaintiff by Counterclaim | : | P MacMillan |
| Third Plaintiff by Counterclaim | : | P MacMillan |
| First-named Fourth Plaintiff by Counterclaim | : | P MacMillan |
| Second-named Fourth Plaintiff by Counterclaim | : | P MacMillan |
| First Defendant by Counterclaim | : | E Hensler |
| Second Defendant by Counterclaim | : | E Hensler |
Solicitors:
| First Plaintiff | : | Piper Alderman |
| Second Plaintiff | : | Piper Alderman |
| First Defendant | : | Eastwood Law |
| Second Defendant | : | Eastwood Law |
| Third Defendant | : | Eastwood Law |
| First-named Fourth Defendant | : | No appearance |
| Second-named Fourth Defendant | : | No appearance |
| Third-named Fourth Defendant | : | No appearance |
| Fourth-named Fourth Defendant | : | No appearance |
| Fifth-named Fourth Defendant | : | Eastwood Law |
| Sixth-named Fourth Defendant | : | Eastwood Law |
| Seventh-named Fourth Defendant | : | No appearance |
| Fifth Defendant | : | No appearance |
| First Plaintiff by Counterclaim | : | Eastwood Law |
| Second Plaintiff by Counterclaim | : | Eastwood Law |
| Third Plaintiff by Counterclaim | : | Eastwood Law |
| First-named Fourth Plaintiff by Counterclaim | : | Eastwood Law |
| Second-named Fourth Plaintiff by Counterclaim | : | Eastwood Law |
| First Defendant by Counterclaim | : | Piper Alderman |
| Second Defendant by Counterclaim | : | Piper Alderman |
Case(s) referred to in decision(s):
Dalton v Dalton [2008] WASC 56
Firns v Firns [2000] NSWSC 396
Hatsatouris v Hatsatouris [2001] NSWCA 408
Hoare v Reyburn (in his capacity as the Executor named in the Purported Will) [2010] WASC 301
Mott v Hill [2021] WASC 43
Oreski v Ikac [2008] WASCA 220
West Australian Trustee Executor and Agency Company Ltd v Holmes [1961] WAR 144
Wheatley v Edgar [2003] WASC 118
WHITBY J:
The plaintiffs and the first to fourth defendants are the children of Henry John Regan (deceased). The fifth defendant is the brother of the deceased.
The deceased made three wills that are relevant to these proceedings: a formal will dated 15 June 1992 (1992 Will), an informal will dated 1 May 2010 (2010 Will) and an informal will dated 12 September 2021 (2021 Will).
By these proceedings, the plaintiffs sought an order pronouncing the force and validity of the 2021 Will. The first, second, third and fifth and sixth named fourth defendants (referred to as the active defendants) opposed the orders sought by the plaintiffs and sought, by counterclaim, an order that the court pronounce the force and validity of the 1992 Will.
Following a compromise of the matter reached at mediation before a registrar of this court, the parties filed consent orders seeking that the matter proceed on an uncontested basis pursuant to O 73 r 19 of the Rules of the Supreme Court 1971 (WA) (RSC) and that the court pronounce the force and validity of the 2010 Will.
Following a trial of the action on 6 May 2024, I was satisfied, based on the evidence adduced at trial, that:
(1)the 2010 Will embodies the deceased's testamentary intentions, that he intended it to be his will and that he had testamentary capacity at the time he executed it; and
(2)there is a well-founded suspicion that the deceased did not have the requisite knowledge of and approve of the contents of the 2021 Will.
I made orders, inter alia, pronouncing the force and validity of the 2010 Will with reasons to be published at a later date. These are those reasons.
Background facts
The deceased was married to Helen Rose Regan. On 30 August 2019, Helen died.
On 29 September 2021, the deceased died. When the deceased died, he was living at the family home at 78 Elvira Street, Palmyra. Bryn also lived at the Palmyra home.
The deceased and Helen had ten children:
(1)Frances Louise Cronan;
(2)Bryn Edward Regan;
(3)Cheryl Ann Coates;
(4)John Henry Regan;
(5)Mark James Regan;
(6)Helen Catherine Foster;
(7)Kaye Suzanne Regan;
(8)Paul Christopher Regan;
(9)Roxanne May Kerr; and
(10)Kevin George Regan;
The deceased has a surviving brother, David Regan.
Given many of the parties share the same last name, I will refer to each individual by their first name, with no disrespect intended.
1992 Will
The terms of the 1992 Will are:
(1)Helen and Mark are the named executors;
(2)the whole of the deceased's estate is left to Helen;
(3)if Helen did not survive the deceased then:
(a)the deceased's interest in the business operated by Poulet Pty Ltd under the name of 'Fremantle Thermal Industries' is left to Bryn; and
(b)the residue of the estate is left to the deceased's children in equal share per stirpes.
The 1992 Will complies with the requirements of s 8 of the Wills Act 1970 (WA) (Wills Act).
2010 Will
The terms of the 2010 Will are:
(1)Helen and Mark are named as executors of the deceased's estate;
(2)the whole of the estate is gifted to Helen if she survived the deceased by 14 days;
(3)if Helen did not survive the deceased for a period of 14 days:
(a)the deceased's share in the family business known as Fremantle Thermal Insulation was gifted to Bryn;
(b)the deceased's share in his horses was gifted to Bryn with the condition that when the horses were sold, the deceased’s share of the sale, less any liabilities, be divided equally between the deceased’s 10 children;
(c)the residue of the estate was gifted to the deceased's children in equal shares.
The 2010 Will does not comply with the formal requirements of s 8 of the Wills Act because the deceased did not sign the second page of the 2010 Will, only the witnesses did.
2021 Will
The terms of the 2021 Will are:
(1)former wills and testamentary acts by the deceased are revoked;
(2)Bryn and Frances are named as executors;
(3)Bryn is granted a right to live in the Palmyra home for his lifetime provided that he:
(a)pays the rates, taxes and reasonable insurance premiums on the home;
(b)keeps the home in good and tenantable repair; and
(c)pays one-half of the costs of keeping the home in such repair;
(4)when Bryn ceases to live permanently in the home or has not complied with the terms of his right of occupation, or by mutual agreement, the right of occupation ends and the home forms part of the residue of the deceased's estate;
(5)the right of occupation is binding inter alia, on the deceased's executors;
(6)subject to Bryn's life interest in the home, the home is gifted to those of Cheryl, Helen, Mark, Frances, Kaye, Paul, Roxanne, Kevin and Bryn who survive the deceased, in equal shares;
(7)the deceased's shares in Poulet Pty Ltd are gifted to Bryn;
(8)the deceased's share of any horses he owned or leased is to be shared between other shareholders in the relevant horse, if they so wish;
(9)the residue of the deceased's estate is gifted to those of his children who survive him in the following shares:
(a)John 1%;
(b)Cheryl 10%;
(c)Helen 10%;
(d)Mark 10%;
(e)Frances 10%;
(f)Kaye 10%;
(g)Paul 10%;
(h)Roxanne 10%;
(i)Kevin 10%;
(j)Bryn 10%;
(k)David 9%;
(10)the deceased did not wish anything more to be left to John as the deceased had adequately provided for John during the deceased's lifetime.
The 2021 Will was signed by the deceased and witnessed by Robert Hunter and Mathew Whitford-Smith. Mr Whitford-Smith was not present in the room when the deceased executed the 2021 Will. The 2021 Will therefore does not comply with the formal requirements set out in s 8 of the Wills Act.
Evidence
The following evidence was read at trial:
(1)affidavit of Cameron Victor Eastwood sworn 7 May 2024;
(2)affidavit of Kathryn Mary Regan sworn 24 April 2024;
(3)affidavit of Cameron Victor Eastwood sworn 3 May 2024;
(4)affidavit of scripts of Mark James Regan sworn 31 August 2022;
(5)affidavit of Roxanne May Kerr sworn 19 September 2023;
(6)affidavit of Glenyce May Regan sworn 19 September 2023;
(7)affidavit of Cheryl Ann Coates sworn 14 September 2023;
(8)affidavit of Mark James Regan sworn 18 September 2023;
(9)affidavit of John Henry Regan sworn 19 September 2023;
(10)affidavit of Helen Catherine Foster sworn 22 August 2023 [36] – [46]; and
(11)affidavit of Cassandra Michelle Guy sworn 15 March 2024;
Legal principles
Although the parties have reached a compromise, the court must be independently satisfied by sufficient evidence that a grant in solemn form of a will is appropriate.[1] The agreement of the parties is, however, a relevant matter for the court to take into consideration, together with all of the other relevant considerations. [2]
[1] Wheatley v Edgar [2003] WASC 118; Mott v Hill [2021] WASC 43 [45].
[2] Mott [45].
The starting point is to consider whether a will complies with the formal requirements set out in the Wills Act. Section 8 of the Wills Act provides:
8.Execution generally
Subject to sections 17 and 20 and Parts XA, X and XI, a will is not valid unless -
(a)it is in writing; and
(b)it is signed by the testator or signed in the testator's name by some other person in the testator's presence and by the testator's direction, in such place on the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as the testator's will; and
(c)the testator makes or acknowledges the signature in the presence of at least 2 witnesses present at the same time; and
(d)the witnesses attest and subscribe the will in the presence of the testator but no publication or form of attestation is necessary.
Where a will has been duly executed in accordance with s 8 of the Wills Act, there is a rebuttable presumption that the deceased had testamentary capacity and had knowledge of and approved of the contents of the will.[3] However, a person seeking to propound a will cannot rely on any presumption of testamentary capacity where the will has not been duly executed.
[3] West Australian Trustee Executor and Agency Company Ltd v Holmes [1961] WAR 144, 146.
Neither the 2010 Will nor the 2021 Will satisfy the formal requirements of s 8 of the Wills Act because, in the case of the 2010 Will the deceased did not sign the second page of the will and in the case of the 2021 Will, one of the witnesses was not present when the deceased executed the will.
However, the court may dispense with the formalities specified in s 8 of the Wills Act. An informal will may be admitted to probate pursuant to s 32 of the Wills Act which provides:
32. Court may dispense with formal requirements
…
(2)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)a will of the person; or
(b)an alteration to a will of the person; or
(c)the revocation of a will of the person; or
(d)the revival of a will or part of a will of the person,
if the Supreme Court is satisfied that the person intended the document to constitute the person's will, an alteration to the person's will, the revocation of the person's will or the revival of a will or part of a will of the person, as the case may be.
(3)In forming its view, the Supreme Court may have regard (in addition to the document) to any evidence relating to the manner of execution or testamentary intentions of the person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the person.
In Hatsatouris v Hatsatouris,[4] the New South Wales Court of Appeal said that the following conditions must be satisfied in order for the court to dispense with the formal requirements of execution of a will under an equivalent provision to s 32 of the Wills Act:
(1)the will is a document;
(2)the will purported to embody the testamentary intentions of the deceased; and
(3)either at the time the will was brought into existence or at some later time, the deceased, by some act or words demonstrated that the subject document without more on his part, was to operate as his will.[5]
[4]Hatsatouris v Hatsatouris [2001] NSWCA 408.
[5] Hatsatouris v Hatsatouris [2001] NSWCA 408 [56] cited with approval in Oreski v Ikac [2008] WASCA 220 [53].
In Dalton v Dalton,[6] Beech J observed that the third condition, that is that the deceased by 'some acts or words' demonstrated that the document was his will, was relevant where the deceased had not written and signed the document. Beech J said:
In that context [that is where an unsigned document not proved to have been written by the deceased], it is necessary that there be some 'acts or words' of the deceased which demonstrated that the document operate as his or her will. If a person wrote and signed a document, there is no necessary requirement in every case to identify separate acts or words of the person as manifesting an intention that the document constitutes the person's will. … the conclusion may be able to be drawn from the terms of the document written and signed by the person.
[6] Dalton v Dalton [2008] WASC 56 [47].
In this case, the parties are asking the court to dispense with the formal requirements of the 2010 Will in circumstances where the deceased did sign the first page of the will and the witnesses signed both pages of the will in the deceased's presence and in the presence of each other. In my view, the above cited comments of Beech J in Dalton v Dalton are apposite to the circumstances in which the 2010 Will was executed.
The parties also submit that the 2021 Will should be ignored. As the 2021 Will is not being propounded by any party, I may ignore it where there is a well-founded suspicion that the later will is not a true will of a capable deceased, provided notice to all interested parties to that later will has been given.[7]
[7] Hoare v Reyburn (in his capacity as the Executor named in the Purported Will) [2010] WASC 301 [7] ‑ [8].
Disposition
2010 Will
The evidence of Helena establishes that:[8]
[8] Affidavit of Helena Catherine Foster sworn 22 August 2023 [36] - [46].
(1)on 1 May 2010, the deceased and Helen went on a holiday to the Blue Mountains with the deceased's brother Don Faulds and the deceased’s sister-in-law Thelma Faulds;
(2)before going on that holiday, the deceased asked his daughter Helena to prepare a new will for him as Helena was preparing a new will for Helen;
(3)the deceased ask Helena to 'quickly whip something up on the computer' that he could sign;
(4)the deceased told Helena to put the executors as herself, Mark and Frances;
(5)the deceased said to leave his estate to Helen, if she didn't survive him then to leave FTI to Bryn, the racehorse to Bryn, but the sale proceeds to the 'kids' and the 'rest to the kids';
(6)Helena prepared the deceased's will on her computer by copying the structure and format of Helen's will and changing the executors and gifts as instructed by the deceased;
(7)Helena printed out the deceased's will and her mother's will and took it to their home in Palmyra for each for them to sign before going on their holiday;
(8)Helena was taking the deceased, Helen, Don and Thelma to the airport and asked Don and Thelma to witness the wills before they all left; and
(9)the deceased signed the first page of the 2010 Will and Don and Thelma signed both pages of the will, all in the presence if each other. Helen did not notice that the deceased had not signed the second page of the 2010 Will as they were running late for the airport.
I am satisfied that the deceased's 2010 Will embodies his testamentary intentions and that the deceased intended the 2010 Will to constitute his will. I am satisfied that, pursuant to s 32 of the Wills Act, the 2010 Will is the will of the deceased.
I am also satisfied that the deceased had testamentary capacity at the time that he executed the 2010 Will. The deceased made the 2010 Will immediately before going on a holiday and was running a successful family business at the time that he executed the 2010 Will.[9]
2021 Will
[9] Affidavit of John Henry Regan sworn 19 September 2023 [36] - [39].
I now turn to consider whether I may ignore the 2021 Will. I may do so if I am satisfied, based on the evidence, that there is a well-founded suspicion that the deceased did not have the requisite knowledge of and approve of the contents of the 2021 Will.
The following evidence is relevant to the provenance of the 2021 Will:
(1)Cassandra Guy, a solicitor, met with Tom Cronan, the deceased's grandson, and the deceased at the Palmyra home on 30 January 2020;[10]
[10] Affidavit of Cassandra Guy sworn 15 March 2024 [6].
(2)during that meeting, Ms Guy explained that certain clauses could be written into the deceased's will to allow Bryn to keep living at the Palmyra home and the deceased told Ms Guy that he liked the sound of that;[11]
[11] Affidavit of Cassandra Guy sworn 15 March 2024 [57].
(3)Ms Guy asked the deceased for instructions for a new will and the deceased told her that he didn't need one, as he already had one;[12]
[12] Affidavit of Cassandra Guy sworn 15 March 2024 [59].
(4)on 2 February 2020, Tom telephoned Ms Guy and told her that the deceased had thought that he had made a will (draft 2020 Will) but had since realised that he did not sign that will and now wanted to make a new will;[13]
[13] Affidavit of Cassandra Guy sworn 15 March 2024 [73(a) and (b)].
(5)Ms Guy told Tom that she would need instructions from the deceased on what terms he wanted in the will;[14]
[14] Affidavit of Cassandra Guy sworn 15 March 2024 [73(c)].
(6)Tom told Ms Guy that he would send her a copy of the draft 2020 Will and for her to prepare a new will with the same clauses;[15]
[15] Affidavit of Cassandra Guy sworn 15 March 2024 [73(d)].
(7)on 11 February 2020, Ms Guy received an email from Tom attaching the draft 2020 Will in word format and advising that the new will 'would need to add no house sale whilst Bryn is still using the place for work';[16]
[16] Affidavit of Cassandra Guy sworn 15 March 2024 [74]; annexure ID006.
(8)Ms Guy could not open the draft 2020 Will attachment and so Tom resent it on 17 February 2020;[17]
(9)Ms Guy prepared a draft will in February 2020 (draft 2021 Will) based on the 2020 draft will and the instructions from Tom – the draft 2021 Will included a right of occupation clause over the Palmyra home to Bryn;[18]
(10)on 24 February 2020, Ms Guy forwarded the draft 2021 Will to Tom and asked him to arrange a call or meeting to take instructions from the deceased;[19]
(11)Ms Guy at no stage spoke with the deceased about the draft 2021 Will or the questions she had inserted into it;[20]
(12)on 24 February 2020, Tom emailed Ms Guy and asked her to contact Helena, his aunty, in relation to the draft 2021 Will. Later that day, Ms Guy spoke to Helena who informed Ms Guy that the deceased had a fall and was in hospital and to place the draft 2021 Will on hold for now;[21]
(13)Ms Guy did not receive any further instructions from Helena, Tom or the deceased in relation to the draft 2021 Will and made no amendments to it;[22]
(14)on 16 February 2021, at the request of Frances, Ms Guy emailed her a copy of the draft 2021 Will;[23]
(15)in July/August 2021, Frances took instructions from the deceased as to the gifts we wanted in his will and then later amended the draft 2021 Will in accordance with those instructions. Frances then emailed the document to Bryn for him to print out; [24]
(16)in late August 2021, Frances read the 2021 Will to the deceased. The deceased did not sign the 2021 Will on that date;[25]
(17)the deceased signed the 2021 Will at the Palmyra home on 12 September 2021 after Bryn had read the 2021 Will out to him in his bedroom while Robert Hunter stood in the doorway. Bryn said that the deceased said that is what the deceased wanted and signed the 2021 Will while Bryn and Robert Hunter watched. Robert Hunter then took the 2021 Will into the loungeroom and signed it. Matthew Whitford-Smith came into the house and signed the 2021 Will as a witness, however this was not in the presence of the deceased.[26]
[17] Affidavit of Cassandra Guy sworn 15 March 2024 [77].
[18] Affidavit of Cassandra Guy sworn 15 March 2024 [89(e)].
[19] Affidavit of Cassandra Guy sworn 15 March 2024 [90].
[20] Affidavit of Cassandra Guy sworn 15 March 2024 [93].
[21] Affidavit of Cassandra Guy sworn 15 March 2024 [96].
[22] Affidavit of Cassandra Guy sworn 15 March 2024 [98].
[23] Affidavit of Cassandra Guy sworn 15 March 2024 [99] - [101].
[24] Affidavit of France Cronan sworn 1 November 2023 [26] - [29].
[25] Affidavit of France Cronan sworn 1 November 2023 [38].
[26] Affidavit of Bryn Edward Regan sworn 1 September 2022 [19] - [29].
I am satisfied that there is a well-founded suspicion that the deceased did not have the requisite knowledge of and approve of the contents of the 2021 Will because:
(1)the draft 2021 Will[27] and the 2021 Will are substantially similar - the right of occupation clause remains unchanged in each will;
(2)the deceased told Ms Guy that he did not want a new will and the draft 2021 Will was not prepared on the basis of any instructions to Ms Guy from the deceased;
(3)the 2021 Will was prepared by Frances who was a beneficiary and executor under the 2021 Will;
(4)the 2021 Will was read to the deceased by and signed in the presence of Bryn - a beneficiary and named executor of the 2021 Will;
(5)the terms of the 2021 Will significantly depart from the 2010 Will; and
(6)the deceased was 90 years old and was terminally ill at the time he executed the 2021 Will.
[27] Affidavit of scripts of Mark James Regan sworn 31 August 2022; annexure MJR-4.
In those circumstances, and where no party is seeking to propound the 2021 Will, I am satisfied that I may ignore the 2021 Will.
Appointment of Administrator
The parties seek that Mr Ian Torrington Blatchford be appointed as an independent administrator of the estate of the deceased on the basis there is significant dysfunction amongst the beneficiaries and none of the beneficiaries wish to take a grant.
Section 36 of the Administration Act 1903 (WA) (Administration Act) provides that where, inter alia, an executor is named in a will, that executor not being willing and competent to take probate, the court may '… appoint an administrator of the estate of the deceased … and such administration may be limited as the court thinks fit'.
The New South Wales legislation is in similar terms to s 36 of the Administration Act. The Supreme Court of New South Wales, in considering that legislation, has held that the court has the power to appoint as an administrator, in circumstances where there is no named executor or no willing and able named executor, a person who does not have an interest in the estate.[28]
[28] Firns v Firns [2000] NSWSC 396 [12].
The executors of the 2010 Will have renounced probate.[29] The dysfunction amongst the beneficiaries is evident from the nature of these proceedings.
[29] Affidavit of Cameron Victor Eastwood sworn 3 May 2024; annexures CVE-2, CVE-3 and CVE-4.
I consider that it is appropriate in these circumstances to appoint an independent administrator. Mr Blatchford, a solicitor, is willing to accept an appointment pursuant to the 2010 Will.[30]
[30] Affidavit of Cameron Victor Eastwood sworn 3 May 2024; annexure CVE-5.
Orders
I make orders in terms of the amended minute of proposed orders filed by the active defendants as follows:
(1)The active defendants have leave to rely on the following further affidavits:
(a)affidavit of Cameron Victor Eastwood sworn 3 May 2024;
(b)affidavit of Kathryn Mary Regan sworn 24 April 2024; and
(c)affidavit of Cameron Victor Eastwood sworn on 7 May 2024.
(2)The plaintiffs' claim be dismissed.
(3)The court pronounces for the force and effect of the Will of the late Henry John Regan dated 1 May 2010.
(4)A registrar of this court issue a Grant of Letters of Administration (with the Will Annexed) in solemn form of the Will of the late Henry John Regan dated 1 May 2010 to Ian Torrington Blatchford.
(5)The plaintiffs' costs of the action be paid from the estate of the late Henry John Regan fixed in the sum of $80,000.
(6)The active defendants' costs of the action save for the application made by chamber summons dated 16 November 2023 be paid from the estate of the late Henry John Regan on a solicitor and own client basis.
(7)The active defendants' costs of the application made by the active defendants by chamber summons dated 16 November 2023 be paid by the plaintiffs on a solicitor and own client basis.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to the Hon Justice Whitby
16 MAY 2024
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