Frigger v Frigger

[2023] WASCA 103

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   FRIGGER -v- FRIGGER [2023] WASCA 103

CORAM:   BUSS P

BEECH JA

HALL JA

HEARD:   23 JUNE 2023

DELIVERED          :   17 JULY 2023

FILE NO/S:   CACV 33 of 2022

BETWEEN:   ANGELA CECILIA THERESA FRIGGER

Appellant

AND

JESSICA ANN FRIGGER

First Respondent

PATRICIA HELEN FORSYTH-REID

Second Respondent

KEITH ASHLEY REID

Third Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   MASTER SANDERSON

File Number            :   CIV 1887 of 2021

Catchwords:

Administration of deceased estate - Where appellant's claimed failure by executors to distribute jewellery of deceased - Where appellant claimed compensation for being excluded from a memorial service - Where proceedings dismissed by master - Whether appellant denied procedural fairness in primary proceedings by not being given an opportunity to make oral submissions - Whether master made an error as to nature of claims made by appellant - Whether master made an error regarding evidence - Where appellant's claims in primary proceedings were entirely without merit - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 58

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	In person
First Respondent	:	In person
Second Respondent	:	In person
Third Respondent	:	In person

Solicitors:

Appellant	:	In person
First Respondent	:	In person
Second Respondent	:	In person
Third Respondent	:	In person

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

Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38

AVS Australian Venue Security Services Pty Ltd v Criminale [2006] NSWCA 368

Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571

Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576

Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383

Defendi v Szigligeti [2019] WASCA 115

Fairweather v Fairweather [1994] HCA 11; (1944) 69 CLR 121

Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425

International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319

J v Lieschke [1987] HCA 4; (1987) 162 CLR 447

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Manktelow v The Public Trustee [2001] WASC 290; (2001) 25 WAR 126

Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180

Mourish v Wynne [2009] WASC 85

Shrestha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301

Smith v Tamworth City Council (1997) 41 NSWLR 680

Spratt v Hayden [2010] WASC 340

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152

JUDGMENT OF THE COURT:

1. This is an appeal against a decision of the master to dismiss proceedings brought by the appellant against her sister and brother (the second and third respondents).  The appellant seeks to have the master's decision set aside and the proceedings reinstated.

2. The proceedings before the master related to the administration of the estate of the mother of the appellant and the second and third respondents.  The first respondent is the daughter of the appellant and was the second plaintiff in the proceedings.  Although named as a respondent in the appeal she stated at the hearing that she relied on the submissions of the appellant.  We will hereafter refer to the first respondent as Jessica and the second and third respondents as the respondents.

3. There was a preliminary issue regarding the ability of the appellant to bring these proceedings given that she is an undischarged bankrupt.  The appellant filed an application seeking to adduce additional evidence regarding that issue.  It is unnecessary to deal with that issue as the appeal fails on its merits.

Background

1. The relevant background can be briefly stated. 

2. On 3 February 2021, Evelyn Charlotte Reid, the mother of the appellant and the respondents, died.  Mrs Reid had made a will in 2011, which was not thereafter varied or revoked.  The will appointed the respondents as her joint executors.[1] 

   [1] GAB 10 - 12.

3. By the will Mrs Reid bequeathed all of her property, both real and personal, to be divided equally between her four children.[2]  Her fourth child, David Reid, is not a party to these proceedings. 

   [2] GAB 10 - 12.

4. The will also contained a clause which provided that Mrs Reid gave 'all [her] jewellery as per [her] intentions as per the attached list'.  A list attached to the will set out 14 items of jewellery and the name of the family member who was to receive each item.  Each item was described in such a way as to make it clear that a specific piece of jewellery was referred to.  Relevantly, the list included the following items to be given to the appellant, 'Franklin Mint silver star brooch', 'ruby and diamond flower ring', and 'silver chain and bracelet in grey pouch'.  The list also included the following items to be given to Jessica, 'jade and gold ring' and 'short gold rope chain'.[3]  The general clause referred to in [6] above is to be taken to be subject to this specific bequest.

   [3] GAB 12.

5. After Mrs Reid's death, the respondents, as her executors, made arrangements for her body to be cremated.  At that time COVID‑19 restrictions on gatherings were in place and the body was cremated at an unattended cremation at Fremantle Cemetery on 11 February 2021.[4] 

   [4] GAB 27.

6. On 16 April 2021, a memorial service was held at St Luke's Catholic Church in Woodvale.  The appellant and Jessica were not invited to, and did not attend, this memorial service.[5]

   [5] GAB 27 - 28.

7. On or about 23 August 2021, the appellant attempted to lodge an Originating Summons which named herself and Jessica as plaintiffs and the respondents as defendants.  That Originating Summons was not accepted because the appellant, as a non-lawyer, was not permitted to initiate proceedings on behalf of another person. 

8. On 2 September 2021, the appellant lodged a fresh Originating Summons in similar terms but naming only herself as plaintiff.  That Originating Summons was accepted for filing and was served on the respondents.[6] 

   [6] Originating Summons dated 2 September 2021.

9. The Originating Summons filed on 2 September 2021 contained a statement of the claims made by the appellant.  In essence the appellant claimed that the respondents, as the executors of their mother's will, had failed to deliver up the jewellery bequeathed to the appellant and Jessica.  She also claimed that the respondents had 'secretly arranged the deceased's funeral' and 'deliberately failed and/or refused to inform' the appellant and her family of those arrangements.  The appellant claimed that the respondents' conduct 'constituted a breach of right of burial to exclude [the appellant] from expressing her affection for her mother in a reasonable and appropriate manner, which is a compensable loss'.[7]

   [7] Originating Summons dated 2 September 2021.

10. On 28 September 2021, the appellant filed an affidavit annexing the rejected originating summons and a letter from Jessica stating that she consented to be joined as the second plaintiff.  The purpose of this was to obtain an order that Jessica be joined as the second plaintiff.  An order in those terms was made on 30 September 2021. Orders were also made requiring the defendants to file and serve any affidavits by 21 October 2021 and adjourning the matter to 28 October 2021.  An amended Originating Summons adding the name of Jessica as the second plaintiff, but otherwise in the same terms as the original originating summons filed on 2 September 2021, was filed on 13 October 2021. 

11. The rejected originating summons (as annexed to the 28 September 2021 affidavit of the appellant) gives a better insight into what the appellant was seeking to achieve by the proceedings.  In that document the appellant sought orders that the executors deliver to her, the Franklin Mint silver star brooch, the ruby and diamond flower ring and the silver chain and bracelet in a grey pouch and deliver to Jessica, the jade and gold ring and the short gold rope chain.  The appellant also sought orders that the executors pay $10,000 to her and $5,000 to Jessica 'in compensation for the deliberate exclusion' of each of them 'from attending the funeral' of Mrs Reid in or about April 2021.  There was also a claim that the executors pay a sum of $1,712.37 to the appellant, being a quarter of the costs of the funeral of Mrs Reid.[8]

    [8] Affidavit of Angela Cecilia Theresa Frigger dated 28 September 2021, 3 - 5.

12. On 26 October 2021 the appellant filed a minute of proposed orders.  Those proposed orders included orders for the filing of further affidavits, the filing of written outlines of submissions and the listing of the matter for a two-hour hearing at the earliest available date.

13. On 28 October 2021 the master held a hearing at which the appellant and the respondents were present in person.  At that hearing the master proposed programming orders regarding the filing of further affidavits.  He also stated that in his view a written outline of submissions was not necessary and asked the appellant whether she would be content for him to deal with the matter on the papers.  His Honour noted that he was not forcing the appellant into anything but that he did not have two hours available for a hearing for several months.  The appellant said that she would like to think about that proposal.  His Honour then said that there would be a further hearing in November 2021 and said:[9]

    I'm not inclined to require submissions because I don't think the matter calls for it.  And at that time, I can have a look at the material and just see what I think is the best way forward.  Are you comfortable with that, Mrs Frigger? 

    FRIGGER, MS:  Yes, master.

    [9] ts 28 October 2021, 4.

14. The orders made on 28 October 2021 were that the plaintiffs file and serve any further affidavits by 5 November 2021 and that the matter be adjourned to 11 November 2021.  The proposed hearing on 11 November did not proceed and the matter was relisted for 16  November 2021.  On 16 November 2021 orders were made that the defendants file any further affidavits by 30 November 2021 and that the plaintiffs file any responsive affidavits by 7 December 2021.

15. Further affidavits were filed by the parties.  In addition to the affidavit already referred to, the appellant filed affidavits sworn by herself on 11 November 2021 and 10 December 2021. Jessica filed affidavits sworn on 22 October 2021[10] and 7 December 2021.  The second respondent filed affidavits sworn on 6 October 2021 and 26 November 2021.  The third respondent filed affidavits sworn on 21 October 2021 and 27 November 2021.  In later affidavits the parties took the opportunity to respond to matters raised in earlier affidavits.  No further documents were filed after 10 December 2021.

    [10] But filed on 12 November 2021.

16. Although no order requiring the filing of written submissions was made, the appellant did file such submissions.  Written submissions were filed by the appellant on 8 December 2021.  A further amended version of the written submissions was filed by the appellant on 10 December 2021.  In those submissions the appellant set out her claims and the nature of the orders that she was seeking.  In particular, in the 10 December 2021 submissions, the appellant set out:

    1.the reasons why the appellant said the respondents' position was indefensible;

    2.the conduct of the respondents prior to the death of Mrs Reid that the appellant claimed had contributed to the 'losses of the deceased estate';

    3.the ways in which the appellant claimed that the respondents had breached their duties as executors; and

    4.the basis for the appellant's claims for compensation.

The affidavit evidence

1. It is apparent from the affidavits that there is considerable longstanding hostility between the appellant and her siblings.  The affidavits canvassed a range of disputes between the parties, not all of which were pertinent to the claims made in the Originating Summons.  

2. Insofar as is relevant, the appellant stated that shortly after her mother's death, on 4 February 2021, the second respondent sent her an email.  In that email the second respondent said that, due to COVID‑19 restrictions, the body of the deceased would be cremated at an unattended cremation, that a memorial service would be held at a later date and that all members of the family would be invited to that service.[11] 

   [11] Affidavit of Angela Frigger sworn 27 September 2021, 8.

3. The appellant also stated that she and Jessica had not received the jewellery referred to on the list attached to her mother's will.   On 21 April 2021 she received an email from the second respondent regarding the assets of the estate.  In that email the second respondent stated that at the time Mrs Reid's house was cleared prior to sale a number of rings had been found in a dressing table in a small black pouch.  These rings, together with two rings that Mrs Reid was wearing at the time of her death, were in the second respondent's possession.  The second respondent stated that two of those rings had been allocated to the appellant, one had been allocated to Jessica and the others would be distributed to other family members.  The second respondent asked that Jessica be sent to collect the rings and some other personal items.[12]

   [12] Affidavit of Angela Frigger sworn 27 September 2021, 14.

4. In her affidavits, the second respondent stated that in mid-2016 Mrs Reid moved out of her home to live with the third respondent.  The house then remained unoccupied for more than 12 months.  During the period that the house was unoccupied the appellant had access to the house and removed 'a considerable amount of items without our consent or permission'.  When the house was finally cleared prior to sale, a small bag containing some items of jewellery was found in a dressing table drawer.  Those items were a jade and gold ring, a pearl and gold ring, a ruby and diamond flower ring, a blue sapphire and gold ring and a gold wedding band.[13]

   [13] Affidavit of Patricia Forsyth-Reid sworn 6 October 2021, 2 - 3.

5. The second respondent stated that on 21 April 2021 she sent an email to the appellant inviting her to send Jessica to the second respondent's home to collect the jade and gold ring for Jessica and the ruby and diamond flower ring for the appellant.  As to the other items on the list, the second respondent said that these were never given to her and were either lost, stolen or previously disposed of by her mother.[14]

   [14] Affidavit of Patricia Forsyth-Reid sworn 6 October 2021, 2.

6. As to the funeral arrangements, the second respondent stated that at the time of her mother's death COVID‑19 restrictions necessitated a non-attendance cremation, which took place on 11 February 2021.  She accepted that in an email to the appellant on 4 February 2021 she said that a memorial service would be held at a later date when all family members could attend.  She said in the email that there would be a dinner held at a central location and that anyone who wanted to would be able to deliver a eulogy.  She said in the email that she would then organise for the interment of Mrs Reid's ashes with her deceased husband at Pinneroo.  Again, everyone would be invited to attend that service.

7. The second respondent stated that arrangements were later made for a memorial mass to be held at St Luke's Catholic Church, Woodvale on 16 April 2021.  Mrs Reid's son David, who normally resides in Queensland, was to be in attendance and played a role in organising the service.  David made it clear in an email that he would not attend the memorial service if the appellant was present.  In the event, David was unable to attend due to travel restrictions.  However, the appellant and Jessica were not invited to the service.  The second respondent stated that this was because other family members would not attend if the appellant was present and that the appellant's family 'were excluded due to estrangement, caused by her hostility and behaviour to family members and her unpredictable behaviour and any disruption she may cause to proceedings'.[15]

   [15] Affidavit of Patricia Forsyth-Reid sworn 6 October 2021, 3 - 4.

8. In his affidavits, the third respondent stated that when he and his partner packed up his mother's belongings prior to the sale of her house a small bag containing the jade and gold ring, the pearl and gold ring, the ruby and diamond flower ring, the blue sapphire and gold ring and the gold wedding band, was found.  These items of jewellery were given to the second respondent for safe keeping.[16]

   [16] Affidavit of Keith Ashley Reid sworn 27 November 2021, 2.

9. The third respondent stated that after his mother died a memorial service was to be held on a date to be agreed between himself, the second respondent, their brother David and their families.  The service was held in April 2021.  The appellant was not invited 'because of our continued estrangement from her'.[17]

   [17] Affidavit of Keith Ashley Reid sworn 27 November 2021, 2.

The master's decision

1. No further hearing in respect of the matter was held after 16 November 2021.  On 16 March 2022, in the absence of the parties, the master delivered oral reasons for dismissing the appellant's claim.  The reasons were brief.

2. The reasons commenced by noting that there were two parts to the appellant's claim: 'First, the first plaintiff says that she hasn't been distributed assets from her mother's estate.  Second, she says that she was not made aware of arrangements for her mother's funeral'.[18]   

   [18] ts 16 March 2022, 2.

3. As to the claim regarding exclusion from the memorial service, the master said:[19]

   It is convenient to deal first with that point as to the funeral.  The obligation of an executor is to arrange for the proper disposal of the body of the deceased.  There is no property in a corpse.  The executor does not own the body in any sense.  That term is generally used with respect to property.  It is a duty to arrange for proper disposal of the corpse.  That being so there is certainly no obligation, either at common law, or under some provision of the probate practice, to require an executor to notify anyone as to the funeral arrangements for a deceased person.

   Whatever may be the moral obligation, there is nothing legally to require information to be provided to a beneficiary, a next of kin or anyone else, save perhaps for the obligations to notify the Registry of Births, Deaths and Marriages.  That part of the plaintiff's application will be dismissed.

   [19] ts 16 March 2022, 2 - 3.

4. As to the claim regarding the jewellery, the master said:[20]

   In answer to the plaintiff's application, the first defendant filed an affidavit sworn 6 October 2021.  She sets out in that affidavit the assets of the deceased, particularly the jewellery assets of the deceased, where those assets were kept and the access that the plaintiff had to those assets from time to time.  In summary, she says that the jewellery was kept in the deceased's former home and the plaintiff was given access to that home so that she could collect the jewellery to which she was entitled as and when necessary.

   In my view, the defendants have done all that is required of them to properly administer the estate and there is no warrant for ordering the delivery of items of the deceased estate that quite possibly are no longer in her possession.  Accordingly, the second aspect of the plaintiff's claim will be dismissed.  The appropriate orders are the application be dismissed, no order as to costs.

   [20] ts 16 March 2022, 3.

Grounds of appeal

1. The grounds of appeal are as follows:[21]

   1.The master erred in law by failing to provide the appellant with procedural fairness that was material, as the failure operated to deprive the appellant of the possibility of a successful outcome.

   2.The master erred in mixed law and fact by finding that the appellant had a claim in relation to the corpse of the late Evelyn Reid and dismissed it in circumstances where no such claim was brought.

   3.The master erred in fact by finding that Ms Forsyth-Reid had stated on oath the jewellery bequeathed to the appellant was kept in the deceased's former home and the appellant was given access to the home to collect the bequeathed jewellery as and when necessary, in circumstances where no such statement is in evidence in the proceedings.

   [21] WAB 6.

Proceedings by Originating Summons

1. Before turning to the grounds, it is relevant to make some observations about the nature of the proceedings before the master.

2. Proceedings by Originating Summons are brought pursuant to O 58 of the Rules of the Supreme Court 1971 (WA). The types of cases that can be the subject of such proceedings are those where the parties seek a determination of an issue arising in the administration of a deceased estate or trust, where the parties seek a determination of the construction of a written instrument or where the parties seek determination of the construction or validity of legislation. In the first category the parties can seek a determination of the rights or interests of any person claiming to be a legatee or any question arising in the administration of the estate. Orders may be made directing the executors to do, or abstain from doing, any act in their capacity as executors. Claims for damages or compensation cannot be brought by this procedure.

3. The nature of proceedings by originating summons is that they are conducted in chambers and are intended to be available for the determination of discrete issues where there is no dispute as to the facts. They are a less formal and more efficient process than proceedings by writ. There is no requirement for pleadings and the usual course is to determine the matter on the basis of affidavits: O 58 r 21. If an originating summons is not disposed of on the first hearing, the rules provide that the court shall give such directions as to the further conduct of the proceedings 'as it thinks best adapted to securing the just, expeditious, and economical disposal thereof': O 58 r 27(1).

Ground 1 - the merits

1. The appellant submits that she was denied procedural fairness in that the master:[22]

   1.failed to inquire and understand her claims;

   2.failed to read the parties' evidence;

   3.refused to receive written submissions; and

   4.refused to hear oral submissions.

   [22] WAB 8.

2. The principles relating to procedural fairness are well settled and were recently outlined in Defendi v Szigligeti as follows.[23] 

   [23] Defendi v Szigligeti [2019] WASCA 115 [45] - [48].

3. There is no doubt that a court is obliged to accord procedural fairness to a litigant.[24]  However, the second, and usually critical, step in any case in which the issue is raised is to determine the content of the requirements of procedural fairness.[25]

   [24] Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589; Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383, 396; J v Lieschke [1987] HCA 4; (1987) 162 CLR 447, 456; International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54]; Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 [194]; Shrestha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301 [37].

   [25] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 585.

4. The content of procedural fairness is not fixed.  Procedural fairness is directed to avoid practical injustice, and what is necessary to avoid practical injustice will depend upon the circumstances.  This requires analysis of the procedures of the court, and the legislation and rules which govern them.[26]

   [26] Lieschke (456); Pompano [156]; Shrestha [45]; see also AVS Australian Venue Security Services Pty Ltd v Criminale [2006] NSWCA 368 [23].

5. Whether there is any requirement for oral submissions will depend on the particular case. There is no immutable right to make oral submissions.  What is required is that a party is given a reasonable opportunity to present their case by evidence, information, and submissions.[27]

   [27] Cole (589); Tanos (395 ‑ 396);  Lieschke (456); SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 [32]; International Finance Trust Co Ltd [54], [141] ‑ [144]; Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 [82]; Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576, 591 - 592, which has been cited with approval in many cases; see Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425 [100] and fn 91 thereof; Shrestha [38].

6. In the present case the content of procedural fairness needs to be understood having regard to the nature of the proceedings.  Proceedings by originating summons should generally be amenable to being determined efficiently.  Provided that a reasonable opportunity to present their case is given to the parties, the issues dealt with by originating summons will sometimes not be such as to require oral submissions.

7. The first and second complaints made by the appellant are merely assertions.  There is nothing in the master's reasons, brief though they are, that supports a conclusion that he failed to understand the claims or read the affidavits. To the contrary, as can be seen from [31] and [32] above, the master addressed each of the claims made by the appellant.

8. As to the third complaint, the master did not refuse to receive written submissions, he simply did not require that they be filed.  In any event, the appellant did file written submissions. There is no basis for supposing that the master did not consider those submissions.

9. As to the fourth complaint, the master did not refuse to hear oral submissions, he simply determined the matter without a further hearing after all of the affidavits had been filed. In the circumstances of the case, applying the principles in [38] - [42] above, there was no breach of procedural fairness in so proceeding.

10. At the hearing of the appeal the appellant was invited to state what submissions she would have made over and above those contained in her written submissions.  She said that she would have made submissions regarding the case law that she has referred to in submissions on this appeal.  Plainly, she could have referred to those cases in her written submissions had she wished to do so.   In any event, for reasons that we will deal with later, none of the cases relied on support the appellant's contentions.  In these circumstances, it cannot be said that the appellant was deprived of a reasonable opportunity to advance matters relevant to the merits of her case.

Ground 2 - the merits

1. This ground is based upon a misunderstanding. 

2. The master did not misapprehend that the appellant was making some claim to 'the corpse' of her deceased mother.  Nor did he purport to dismiss any such claim.  What his Honour did was set out in brief terms, and by way of context for consideration of the appellant's complaint that she was not notified of the memorial service, the nature of an executor's duty to dispose of the body of the deceased and, in doing so, noted that this duty did not arise from any property rights.

3. There is no doubt that executors have a common law right to claim the testator's body for the purpose of disposal including the manner and place of that disposal.  Executors can enforce delivery of the testator's body for the purpose of disposal, if a request to do so is denied.  As the master noted, the right of the executors to claim the body and arrange for its disposal does not arise from any property right.[28]

   [28] Smith v Tamworth City Council (1997) 41 NSWLR 680, 685.

4. It was in that context that the master then went on to deal with the contention that the respondents had a legal duty to invite the appellant and her family to the memorial service.  His Honour dealt with this claim by saying that, whatever the moral duty in this regard might be, there was no legal requirement for an executor to notify anyone of the funeral arrangements for a deceased person.[29]  This was, plainly, addressed to the appellant's claim regarding being excluded from the memorial service.

   [29] ts 16 March 2022, 3.

Ground 3 - the merits

1. There was evidence in the affidavits of the second respondent to the effect that the appellant had access to her mother's house between the time that her mother went to live with the third respondent in 2016 and the house being sold.  That was a period that was estimated to be about 12 months.  During that period the second respondent said that the appellant had attended and taken items from the house.  Whilst she did not refer specifically to any items of jewellery, the necessary implication was that the appellant had an opportunity to take items of jewellery.  That evidence was disputed by the appellant. 

2. The only error in the master's reasons was to suggest that the appellant was given access to her mother's home for the purpose of collecting the bequeathed jewellery.[30]  The second respondent, to the contrary, indicated that insofar as the appellant took any items from the house it was without her consent.  However, this error is minor and immaterial to the outcome.  Whatever might be the explanation for certain items of jewellery no longer being in the possession of Mrs Reid at the time of her death, the issue was what jewellery formed part of the estate at that time.

   [30] ts 16 March 2022, 3.

3. The master's conclusion regarding the jewellery was that the executors had done all that was necessary to distribute the assets of the estate.  That conclusion did not depend on whether the appellant had, or may have, taken any jewellery prior to her mother's death.  Nothing in the appellant's contentions demonstrates any error in that conclusion.  

Conclusion

1. None of the grounds of appeal has any merit and the appeal should accordingly be dismissed.

2. Further and in any event, none of the grounds directly addresses the merits of the claims made in the originating summons.  The appellant has sought to select aspects of the proceedings, rather than addressing the central question of whether her claims had any plausible substance.  That question cannot be avoided, as if there was no arguable basis for bringing the proceedings the appeal must fail regardless of the merits of the grounds of appeal.  In oral submissions the appellant had an opportunity to address the substance of her claims.  

3. As to the claims regarding the jewellery, it is apparent from the will that the items of jewellery referred to on the list were specific bequests.  It is not unusual that between the time a will is made and the death of the testator, the property owned by the testator will change.  Insofar as a will contains specific bequests, that is bequests of items that are specifically identified and which represent an intention on the part of the testator to give specific items, such bequests will fail by reason of ademption if the identified items no longer form part of the estate at the time of the testator's death.[31]

   [31] See Fairweather v Fairweather [1994] HCA 11; (1944) 69 CLR 121, 128.

4. In this case 10 years elapsed between the time the will was made and the death of Mrs Reid.  Of the items on the list which were indicated as being for the appellant and her daughter, there was evidence that the ruby and diamond flower ring and the jade and gold ring formed part of the estate. The uncontested evidence was that the second respondent had advised the appellant by email on 21 April 2021 that a number of rings were available for collection by Jessica.  Though not individually identified in the email to the appellant, the second respondent stated in her affidavit of 6 October 2021 that these rings included the ruby and diamond flower ring and the jade and gold ring.  The second respondent stated that she had received no response to her email and the rings had not been collected.

5. At the appeal hearing the appellant said that she had not arranged for collection of the rings, essentially because Jessica did not want to attend the second respondent's home.  However, she accepted that she had made no arrangements for any other person to collect the rings on her behalf.  This does not support a conclusion that the respondents have failed in their duties to distribute the assets of the estate.

6. As regards the other items of jewellery (the Franklin Mint silver star brooch, the silver chain and bracelet in a grey pouch and the short gold rope chain), the available evidence was that those items no longer formed part of the assets of the deceased at the time of her death.  There was no evidence to the contrary.  The only matters raised by the appellant in that regard were speculation as to what might have happened to those items and a second-hand report that a gold chain had been given to another relative. 

7. The assets of an estate are those assets owned by the deceased immediately prior to his or her death.[32]  There was nothing to suggest that the executors had failed in their duties in respect of those items of jewellery that formed part of the estate.  Clearly the executors could not be required to deliver up items which did not form part of the estate.

   [32] Wills Act 1970 (WA), s 26(1)(a); Administration Act 1903 (WA), s 8.

8. As regards the claims for compensation in respect of the funeral arrangements, the appellant is simply wrong in suggesting that executors have an enforceable legal duty to ensure that all members of the deceased's family are invited to the funeral.  The cases relied on by the appellant do not establish or support the existence of such a duty.  To the extent that they are relevant, they establish that an executor cannot use the common law power to dispose of the body in such a way as to exclude family members.[33] A person with the privilege of choosing how to bury a body, or to cremate the body, is expected to consult with other stakeholders, but is not legally bound to do so.[34]

   [33] Manktelow v The Public Trustee [2001] WASC 290; (2001) 25 WAR 126; Spratt v Hayden [2010] WASC 340; Mourish v Wynne[2009] WASC 85.

   [34] Smith v Tamworth City Council (694).

9. This was not a case regarding disposal of the body or relating to the conduct of a funeral.  It related to a memorial service held two months after the death and cremation of the deceased. The holding of such a service was not a duty of the executors.  It is apparent that the appellant and her family were not invited to that service due to long‑held acrimony.  Those who arranged and attended the service simply did not want the appellant to be present.  That was their prerogative.  There is no reasonable basis upon which to assert that the executors were under a legal duty to invite the appellant and her family to that service.  Far less can there be any viable claim to compensation for failing to do so.

10. The appellant's claims were entirely without merit. 

11. It is highly regrettable that the appellant has seen fit to bring legal proceedings to further what is essentially a personal grievance that is entirely without merit and raises no legal issues.  The misuse of public resources of the court has now been compounded by the bringing of this appeal.  The proceedings at first instance and on appeal are an abuse of process and should never have been brought.

12. For the above reasons the appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AZ

Associate to the Honourable Justice Hall

17 JULY 2023