Gonciarz v Bienias - [2019] WASC 104

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   GONCIARZ -v- BIENIAS [2019] WASC 104
CORAM:   TOTTLE J
HEARD:   21 MARCH 2019
DELIVERED          :   22 MARCH 2019
PUBLISHED           :   1 APRIL 2019
FILE NO/S:   CIV 1467 of 2019
BETWEEN:   ALICJA JOLANTA GONCIARZ
Plaintiff
AND
REGINA BIENIAS
First Defendant
PIOTR BIENIAS
Second Defendant

Catchwords:

Estates - Intestacy - Superannuation - Death benefit - Competing claims to payment of death benefit by widow in her personal capacity and as administrator - Conflict between administrator's duty to estate and personal interests

Estates - Intestacy - Application for revocation of grant of letters of administration - Administration Act 1903 (WA), s 29 - Application for appointment of replacement administrator - Administration 1903 (WA), s 25(1)(b) - Where application made by incumbent administrator - Whether revocation desirable for the due administration of the estate - Application granted

Legislation:

Administration Act 1903 (WA), s 25, s 29

Result:

Applications granted

Category: B

Representation:

Counsel:

Plaintiff	:	Mr M P Bruce
First Defendant	:	Mr W G Spyker
Second Defendant	:	Mr W G Spyker

Solicitors:

Plaintiff	:	Bruce Legal Consultants (Perth)
First Defendant	:	Spyker Legal
Second Defendant	:	Spyker legal

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

Burgess v Burgess [2018] WASC 279
McIntosh v McIntosh [2014] QSC 99
The Estate of Rogers v Rogers [2009] WASC 358

TOTTLE J:

Introduction

The plaintiff applied on an urgent basis for the revocation of a grant of letters of administration made to her on 18 December 2017 in respect of the estate of her late husband, Boguslaw Janusz Bienias, and for the appointment of Mr Simon England, an independent solicitor, as administrator. On 22 March 2019, I made the orders sought by the plaintiff and gave brief reasons for doing so. I said that more detailed reasons would follow and these are those reasons.

The application

The application was brought by an originating summons filed on 18 March 2019. The first defendant is the deceased's mother and the second defendant is the deceased's brother. The application was supported by an affidavit sworn by the plaintiff on 18 March 2019. Among the attachments to that affidavit was a copy of an affidavit sworn by the plaintiff in separate proceedings commenced under the Family Provision Act 1972 (WA) in respect of the deceased's estate. The plaintiff also relied upon an affidavit sworn by Mr England on 19 March 2019 in which he outlined his professional experience and his consent to the appointment as administrator.

The factual background

Both the plaintiff and the deceased were born in Poland. They attended the same primary school and were friends in their teenage years. Each left Poland separately in the early 1980s. The deceased settled in Australia. The plaintiff settled in Canada and has two children from an earlier marriage. The plaintiff and the deceased became reacquainted in 2007 and married in October 2011.
The deceased died intestate on 4 August 2017 aged 58 years. Those entitled to distribution of the estate under the intestacy are the plaintiff, the first defendant, who lives in Poland, and the second defendant who lives in Belgium.
The estate is modest. The major asset is a property registered in the deceased's name which was the matrimonial home of the deceased and the plaintiff. In May 2018 the property was valued at between $370,000 and $380,000, over which there is a mortgage securing a debt of $204,500. The net value of the estate on 31 October 2018 was approximately $140,000.
The deceased was a member of the Retail Employees Superannuation Trust (REST) and his death gave rise to a death benefit of $541,412.20. The deceased had not made a binding beneficiary nomination but before marrying the plaintiff he had made a non-binding beneficiary nomination in favour of the second defendant.
On 26 October 2017, the plaintiff's solicitor sent a pre-printed 'Death Benefit - Claimant Statement' completed by the plaintiff in her capacity as the spouse of the deceased to the trustee of REST (the Trustee). The claimant statement was divided into sections. Section 4 was entitled 'Claimant Details'. The printed section of the form read as follows:
In the absence of a valid binding beneficiary nomination, the REST Trustee will determine how and to whom the Death benefit will be distributed. Please complete this section to notify us of any potential beneficiaries. This includes any spouse or children of the deceased member or, if none, any parents or siblings (attach a separate sheet if additional space is required).
The plaintiff completed this section of the form by identifying herself as a claimant. The plaintiff did not identify any other claimants. In the letter from the plaintiff's solicitor to the Trustee that accompanied the claimant statement the solicitor stated that the plaintiff had applied for a grant of letters of administration and that a copy would be sent to the Trustee as soon as it became available.
In November 2017, the plaintiff's solicitor corresponded with the second defendant's lawyers (who were in Belgium) enquiring whether the second defendant would waive the requirement for a guarantee in accordance with r 27 of the Non‑Contentious Probate Rules 1967 (WA). No waiver was provided.
On 2 February 2018, the plaintiff's solicitor received an email from a claims administrator of the Trustee requesting the contact details of the deceased's two stepchildren (the plaintiff's daughters) and the deceased's brother, 'as he has been nominated as a preferred beneficiary on Boguslaw's REST account'. The plaintiff's solicitor provided the information requested on 7 February 2018.
In March and April 2018, the plaintiff corresponded with the Trustee about the claim. In that correspondence the plaintiff explained that her financial resources were very limited and that she was in receipt of Centrelink benefits which were not sufficient to cover her living expenses. In response, the Trustee explained that it was required to contact all nominated beneficiaries of the REST account and that a request had been made of the second defendant for him to complete a Death Benefit - Claimant Statement.
On 21 May 2018, the Trustee sent a letter to the plaintiff informing her that the Trustee had directed that the total death benefit less any applicable tax was to be paid to her as the deceased's lawful spouse.
On 8 June 2018, the Trustee wrote to the plaintiff informing her that on 5 June 2018 it had received an objection to the proposed distribution. Although the plaintiff was not informed of who had made the objection it subsequently transpired that the objection had been made by the second defendant and that the ground of the objection was that the second defendant did not believe that the plaintiff and the deceased were living together at the date of the deceased's death.
On 13 June 2018, the plaintiff commenced an application under the Family Provision Act 1972 (WA). The plaintiff named herself in her capacity as the administrator of the estate as the first defendant to that application and the first and second defendants to the present application were the second and third defendants respectively.
In the course of 2018 correspondence was exchanged between the plaintiff and the (Australian) solicitors for the defendants about the administration of the estate. The defendants' solicitors complained on their clients' behalf about delay on the plaintiff's part in administering the estate and in particular the delay in selling the former matrimonial home in which the plaintiff continued to reside. In August 2018 the defendants' solicitor requested that the court make orders requiring the plaintiff to file and serve accounts and a plan of distribution.
On 7 September 2018, the solicitors for the defendants sent an email to the plaintiff attaching a copy of the decision of Kenneth Martin J in Burgess v Burgess[1] and stated:
The decision clarifies the position of an administrator with regard to superannuation benefits. That is, in making an application to REST Super for payment of superannuation monies directly to yourself, you are acting in conflict of interest to your duties as administrator.
We hereby demand that you withdraw your application to REST Super for direct payment to yourself within 7 days and instead make an application to REST Super that the superannuation monies be paid to the estate. If you fail to do so we will apply to the Court for an injunction, relying on the principles outlined in the above decision. (original emphasis)
[1] Burgess v Burgess [2018] WASC 279.
On 12 September 2018, the plaintiff wrote to the claims department of the Trustee and referred to the claimant statement form submitted by her on 26 October 2017 and stated:
As the Administrator of my late husband's estate I am in breach of my fiduciary duties while applying for the superannuation death benefit to be paid to me personally. I kindly request that section 6 of my claim be amended as to indicate that I am claiming the death benefit to be paid to the estate of Boguslaw Bienias instead of myself as 'spouse'.
On 2 October 2018 the plaintiff sent a further email to the claims department of the Trustee and stated:
As discussed earlier today on the phone with you, I confirm that I want to withdraw my request dated 12 September 2018 for the REST superannuation death benefit to be paid to the estate of my late husband Boguslaw Bienias.
I maintain my claim for the benefit to be paid to me as Boguslaw's dependant wife. (original emphasis)
Later on 2 October 2018 the Trustee sent an email to the plaintiff referring to recent correspondence from the plaintiff dated 24 September 2018 and 2 October 2018 (no correspondence dated 24 September 2018 was, however, in evidence) and stated:
Thank you for putting this withdrawal in writing, please be advised that we have added this to the claim and we will send yourself a claim staking letter once we are able to send these outlining the trustee's second decision to pay yourself 100% of the benefit as lawful spouse.
The evidence contains no explanation or, indeed, any further reference to a 'second decision' being made by the Trustee. Counsel for the defendants asked the court to infer that by 2 October 2018 the Trustee had considered and rejected the second defendant's objection and had decided once again to pay 100% of the death benefit to the plaintiff. I am not persuaded that I should draw that inference because in a letter from the Trustee to the second defendant dated 25 February 2019 the Trustee referred to the second defendant's objection and complaint about its original decision and informed him that the Trustee had changed its original decision. These statements and the elapse of time between October 2018 and February 2019 are inconsistent with the Trustee having made a decision in October 2018 to reject the second defendant's objection.
On 3 October 2018, a passing of accounts took place before a registrar of the court and 14 items in the accounts were not passed.
On 25 October 2018, the plaintiff sent a further claimant statement (in the same format as the pre-printed form completed by her on 26 October 2017) to the Trustee by email. In section 4 of this claimant statement the plaintiff recorded that she was a claimant and, separately, recorded as a claimant 'the estate of Boguslaw Bienias'. In section 6 of the statement the plaintiff ticked the 'Yes' box in answer to the question 'Do you want to be considered in the payment distribution of the death benefit?' and, as counsel for the defendants emphasised, specified that she was claiming in her capacity as administrator of the deceased's estate. The plaintiff's accompanying email of 25 October 2018 read as follows:
As you are aware, my initial claim was sent to REST in October 2017, when I was represented by my then solicitor . . . [who] assisted me in the preparation of the claim for the death benefit to be paid to me as my late husband's spouse, as at that time I was not yet granted the Letters of Administration.
It now appears, based on the recent WA Supreme Court ruling, that after I was granted the Letters of Administration by the Supreme Court of Western Australia on 18 December 2017, I must comply with my fiduciary duties to apply 'as administrator of the estate for it to receive the funds in any exercise of the fund trustee's discretion', pursuant [to] the following order by Judge Kenneth Martin J in DENISE HILDA BURGESS as administrator of the estate of BRIAN MICHAEL BURGESS -v- BURGESS [2018] WASC 279, at paragraph 84.
'In an age of increasing moral ambivalence in western society the rigour of a court of equity must endure. It will not be shaken as regards what is a sacred obligation of total and uncompromised fidelity required of a trustee (of an estate). Here, that required the administrator not just to disclose the existence of the (rival) estate interest when claiming the superannuation moneys in her own right (as spouse) from the fund trustee. It required more. It required her to apply as administrator of the estate for it to receive the funds in any exercise of the fund trustee's discretion.'
Accordingly, as the Administrator of my late husband's estate, I updated the Section 4 of 'Death Benefit - claimant statement' indicating all potential beneficiaries of my late husband's estate for the Trustee's determination how and to whom the Death benefit would be distributed.
Therefore, I kindly request that all my previous claims be disregarded and the attached claim be submitted to the Trustee for assessment.
Please indicate if REST requires a paper copy of this claim duly signed, so I can send it via Australia Post to your offices. (emphasis supplied)
Counsel for the defendants submitted that the claimant statement completed by the plaintiff on 25 October 2018 should be considered as a request by the plaintiff for payment of the death benefit to the estate and that, as the Trustee had now decided to pay the death benefit to the estate, the plaintiff had achieved the outcome she set out to achieve and had no cause for complaint. I am not persuaded by that submission. In my assessment the plaintiff completed the claimant statement in a way that conveyed to the Trustee that there were two claimants - the plaintiff in her personal capacity and the estate. This conclusion is consistent with the explanation given by the plaintiff for updating section 4 of the claimant statement in her email to the Trustee of 25 October 2018.
In early March 2019 the plaintiff received a letter from the Trustee dated 25 February 2019. The material parts of the letter read as follows:
Review of objection to Death benefit distribution
REST has reviewed the objection lodged in relation to the proposed distribution of the Death benefit of the late Boguslaw Bienias.
Trustee decision
We have considered the evidence submitted with the objection, together with the facts previously considered in this claim and we have decided to change our decision. REST was provided with new information which has changed the circumstances of the claim which made it necessary for us to change our decision.
How we'll pay the benefit
... The benefit will be paid as follows:

Name of Beneficiary

Relationship

Dependency
Type

Proportion of benefit

The estate of the late Boguslaw Bienias

Legal Personal Representative

Not Applicable

100%

If you don't agree with the proposed distribution
If you believe the distribution proposed by the Trustee is unfair or unreasonable, you may lodge a written objection with REST within 28 days of receipt of this letter. The letter is taken to be received on 28 February 2019, accommodating the delivery of the letter in the normal course of postage. This means any objection must be received by 28 March 2019 otherwise the benefit will be paid in accordance with the above proposed distribution ...

Subsequently the plaintiff received a copy of a letter also dated 25 February 2019 from the Trustee to the second defendant informing him that the total death benefit would be paid to the estate. The material parts of that letter are as follows:
We're letting you know about our decision
On 5 June 2018 you made a complaint about the late Boguslaw Bienias's death benefit. Your complaint sets out that you do not believe that the member and his wife were living together at the date of death and requesting that the benefit be paid either according to the beneficiary nomination or to the member's estate.
…
We've adjusted our payment decision
We have reviewed your complaint and decided to change our original decision in relation to the death benefit of the late Boguslaw Bienias. This decision is based on the information we had at the time of making our original decision and the following information that you provided:
Documents provided
Complaint letter
Emails from lawyers
Emails from member's spouse
...
The Trustee has decided to pay the benefit to the estate of the late Boguslaw Bienias in the proportion set out below for the following reasons:
•REST has a discretion to choose to pay either a dependant or an LPR
and the Trustee determined that:
•it will follow the wishes of the beneficiaries.
The letter went on to state that the entirety of the benefit would be paid to the plaintiff in her capacity as the administrator of the deceased's estate.
Prior to receiving a copy of the Trustee's letter of 25 February 2019 to the second defendant the plaintiff was unaware that the second defendant had informed the Trustee that he believed that the plaintiff and the deceased were not living together at the date the deceased died. In her affidavit sworn on 18 March 2019 the plaintiff gave evidence about her reasons for seeking revocation of the grant which I accept. The plaintiff deposed as follows:
9.Until my receipt of [the letter from REST to the second defendant dated 25 February 2019] I was unaware that [the second defendant] had made such an allegation to the superannuation trustee. It is true that I was out of the country (in Canada on a month's holiday, visiting my daughters of my first marriage) when my husband died, but the assertion that we were not living together is false and deeply hurtful. I wish to provide fulsome evidence to REST that I was in fact living with my husband before he died and at the time of his death, that we had a loving and close relationship at that time and that he and I were totally dependent upon each other.
10.I seek revocation of the Grant of Letters of Administration in order to be discharged from the conflict of interest and be allowed to provide to REST information about my true circumstances of dependency on my late husband and request REST to exercise its discretion based on that and other evidence.
11.I feel particularly aggrieved about my inability to presently challenge REST's decision because at no time has REST ever made any enquiries of me to verify whether or not my late husband and I were 'living together' at the time of his death and nor have they ever inquired about my dependency and financial circumstances.
On 14 March 2019 the plaintiff's solicitors (who act for the plaintiff in the current proceedings) sent a letter to the defendants' solicitors enquiring whether the defendants would consent to the plaintiff resigning as administrator of the deceased's estate and being replaced with a suitable substitute, suggesting Mr England. The plaintiff's solicitor stated:
The need for my client to be replaced as administrator is urgent. That is because my client wishes to object to the decision of the superannuation trustee to pay the death benefits to the estate. As you are aware, any objection must be lodged by no later than 28 March 2019. (original emphasis)

On 18 March 2019 the defendants' solicitors responded to the plaintiff's solicitors by email and stated:
We note that the deceased died on 4 August 2017. Your client subsequently applied for a grant of letters of administration, which was granted ... on 18 December 2017. Your client has continued in her role as Administrator of the estate for some 15 months. The performance of her duties as administrator has been the subject of significant contention and dispute. We note in this regard the voluminous correspondence that has passed between our office and your client/her solicitors. A passing of accounts proceeded before Registrar McDonald on 3 October 2018, with some 14 of the accounts declined to be passed by the Court.
The defendants' solicitors then referred to the judgment in Burgess v Burgess and stated:
It would appear that your client's proposed application to be replaced as the Administrator of the estate is motivated entirely by self-interest. It is not in pursuance of an undivided loyalty to the estate, and it does not demonstrate your client as pursuing exclusively the interests of the beneficiary parties. As such, we consider any such application to be in clear breach of your client's fiduciary duties.
Further, it is in the best interests of the estate that there be no change to the administrator. Your client applied for, was granted, and has continued as administrator for an extended period. It will be both inconvenient and expensive to the estate to replace the administrator at this late stage. As to expense, we consider that it is not in the commercial interests of the estate to appoint a senior solicitor as administrator, particularly if it is proposed that he would be entitled to charge professional fees for the performance of his role as administrator. In this regard, given the past and ongoing disputes in relation to the estate, such fees are likely to be significant in the context of a relatively modest estate.
We further note that your client suffers no disadvantage in continuing as administrator. Your client has a pending family provision claim, and any requirement that she may have for further provision from the estate (beyond her entitlement under the Administration Act 1903) may be substantively considered by the Court on the evidence presented in such an application.
By reason of the above, our clients do not consent to your client resigning and being replaced as administrator.
Between November 2017 and February 2019 the plaintiff was under medical care and treatment for depression and anxiety as a result of her bereavement. The plaintiff deposed, and I accept, that she feels isolated, alone and unsupported, and that the ongoing conflict in relation to the way in which she was administering the estate is adding to her distress and anxiety.

The power to revoke grant of administration and the power to appoint a replacement administrator

Section 29 of the Administration Act 1903 (WA) provides that the court may upon the application of any person interested in the estate or its own motion revoke the grant of administration.
In The Estate of Rogers v Rogers,[2] EM Heenan J made the following observations about the power to revoke grants of probate and grants of letters of administration:[3]
Any narrow questions as to the extent of the probate jurisdiction of the court are resolved by the ample grant of jurisdiction upon the court contained in s 18 of the Supreme Court Act 1935 (WA) which provides:
18. Probate jurisdiction
The Supreme Court shall have voluntary and contentious probate jurisdiction and authority in relation to the granting or revoking of probate of wills and letters of administration of all real and personal estate whatsoever within Western Australia and its dependencies of any deceased person; and all such powers and authorities in respect of such jurisdiction as were given to the Court by the Administration Act 1903, and any other Act in force in Western Australia immediately before the commencement of this Act, with authority to hear and determine all questions relating to testamentary causes and matters.
There is a wide variety of circumstances under which revocation of a grant of probate or letters of administration, which have not been the subject of proof in solemn form, may be made. Broadly, these may be divided into two categories. The first being where it is discovered that there is some error which has been made in the grant of representation or where the particular grant should not have been made (for example, the discovery of a later will, or of a subsequent marriage which revoked the will in question). The second category includes revocations made necessary or desirable to ensure the due administration of the estate such as, for example, where the grantee becomes sick or disabled, or has disappeared. The ultimate purpose of the court is to ensure the due and proper administration of the estate and of the interests of the parties beneficially entitled to it ‑ see Halsbury's Laws of England (4th ed, Reissue) par 259 and Re Loveday [1900] P 154. For a detailed discussion of the various examples where revocation may be justified see Tristram & Coote's Probate Practice (29th ed) pars 17.01 ‑ 17.33 and Williams, Mortimer & Sunnucks 'Executors & Administrators of Probate' (18th ed, 2000) pars 27‑15 ‑ 12‑30.
[2] The Estate of Rogers v Rogers [2009] WASC 358.
[3] The Estate of Rogers v Rogers [22] - [23].
In a later paragraph of the judgment in Rogers, EM Heenan J added that removal of a grantee of representation is a very major step and that the court must always be very cautious and sparing in the exercise of the power of removal.[4]
[4] The Estate of Rogers v Rogers [32].
Section 25(1)(b) of the Administration Act 1903 (WA) provides the court with the power to appoint a replacement administrator. It reads as follows:
(1)The Court may grant administration of the estate of a person dying intestate to the following persons (separately or conjointly) being of the full age of 18 years, that is to say to -
(a)one or more of the persons entitled in distribution to the estate of the intestate;
(b)any other person, whether a creditor or not, if there be no such person entitled as aforesaid resident within the jurisdiction and fit to be so entrusted, or if the person entitled as aforesaid fails, when duly cited, to appear and apply for administration.

The administrator's fiduciary duty in the context of superannuation benefits

An incident of the fiduciary duty owed by an administrator of an intestate estate is that the administrator must apply for payment of any superannuation funds that are not the subject of a binding nomination to the intestate's estate: McIntosh v McIntosh[5] and Burgess v Burgess.[6]
[5] McIntosh v McIntosh [2014] QSC 99 (Atkinson J) [70] - [74].
[6] Burgess v Burgess [82] - [92].

Plaintiff's submissions

In summary the plaintiff's submissions in support of the application were as follows:
1.The plaintiff was not seeking to resign in order to exploit or gain from an opportunity obtained by her in the discharge of her fiduciary obligations.
2.There was no good reason to require the plaintiff to subordinate her personal interests in respect of the death benefit to the interests of the estate. Doing so operates to favour the other beneficiaries at the expense of enabling the plaintiff to challenge the Trustee's decision. The plaintiff should be free to challenge the decision of the Trustee, a decision which she contends was 'infected by the [second defendant's] mistaken and flawed belief' as to her living arrangements.
3.In combination, the following matters all point to the conclusion that the plaintiff's resignation is desirable to ensure the due and proper administration of the estate: the plaintiff's desire to resign and the defendants' dissatisfaction with the way in which the estate has been administered, the toll which it is taking on her health, her legitimate desire to object to the superannuation trustee's decision, her parlous financial position, her position as an plaintiff in the Family Provision Act proceedings, and the fact that the plaintiff is living in the former matrimonial home that forms part of the estate.
4.An outcome which requires the plaintiff to continue to discharge her duties as administrator pays insufficient regard to the prophylactic nature of the fiduciary obligations and to the flexibility with which the courts have historically granted the relief sought in the application.
5.The appointment of an independent experienced administrator is desirable given the degree of animosity and distrust between the beneficiaries.

Defendants' submissions

In summary the defendants' submissions in opposition to the application were as follows:
1.There is no present conflict of interest - the plaintiff applied for the death benefit to be paid to the estate and the Trustee has agreed to pay it to the estate - the outcome the plaintiff sought to achieve.
2.A conflict only arises if the plaintiff wishes to have the death benefit paid to herself personally. To be relieved from her fiduciary obligations to the beneficiaries of the estate for that purpose would not be in the interests of the beneficiaries, it would be directly contrary to such interests.
3.The court should not exercise its discretion to revoke the grant for the following reasons:
(a)the plaintiff has been able to discharge her duties as administrator since the date of her appointment;
(b)whilst issues have arisen between the plaintiff and the defendants, they have been 'appropriately and adequately addressed by way of the interim passing of accounts';
(c)the plaintiff has commenced proceedings for family provision and suffers no disadvantage by the death benefit being paid to the estate;
(d)it is not in the best interests of the defendants or the defendants as beneficiaries for the grant to be revoked as they may be at risk of losing their right in distribution to the sum of $541,412;
(e)the authority of Burgess v Burgess provides that the plaintiff must continue to discharge her fiduciary obligations in the face of any conflict; no reason has been demonstrated why it is not in the interests of the beneficiaries that this continue as it has now done for 15 months;
(f)the plaintiff will not suffer financially by continuing in her administration of the estate - she is entitled to have legal expenses connected with the administration paid out of the estate;
(g)the appointment of a senior solicitor as administrator is likely to increase the costs of the administration; and
(h)the plaintiff has not adequately explained the reason for the delay in bringing the application to revoke the grant.

Disposition

This case once again highlights the importance of making wills and making binding beneficiary nominations in respect of superannuation benefits.
Upon the deceased's death the plaintiff was placed in a difficult position of potential conflict. Although she may not have appreciated it, the plaintiff faced a dilemma: the estate required an administrator and, in a practical sense, she was the only person in a position to undertake that role, but as the deceased's widow she had a strong claim to payment of the death benefit - as the Trustee's original decision demonstrated. By accepting the grant of administration the plaintiff was obliged to subordinate her claim to the death benefit to that of the estate. This difficult situation was not of the plaintiff's making. That is not to suggest that the fiduciary principles discussed in the authorities should be applied with any less rigour but it is a factor to be taken into account when considering whether to exercise the discretion to revoke the grant.
The plaintiff is in a position of conflict of interest and duty. It is in her interest to challenge the Trustee's decision to pay the death benefit to the estate but it is her duty not to do so. Refusing the present application will compel the plaintiff to continue to administer the estate when she no longer wishes to do so. When regard is had to the circumstances in which the plaintiff applied for the grant and the animosity that has attended the administration of the estate in my view the court should not, in effect, compel the plaintiff to continue to act as administrator. To do so would be inimical to the due and proper administration of the estate and to the interests of the parties beneficially entitled to it. If the plaintiff was compelled against her wishes to continue with the administration I fear that it is inevitable that the level of disputation experienced in the past will be perpetuated.
I do not accept the defendants' submission that the plaintiff's claim under the Family Provision Act provides a reason for not revoking the grant because any disadvantage suffered by the plaintiff as a result of not making a claim to the death benefit is capable of redress through the Family Provision Act claim. The submission asserts a false equivalence between the right to challenge the decision of the Trustee and the claim under the Family Provision Act when, in fact, they involve different rights considered in very different contexts.
Further the submission highlights an inconsistency in the defendants' position in that the defendants are prepared to accept that the plaintiff may advance her own interests in the Family Provision Act claim to an increased share in the increased value of the estate if the death benefit is paid to the estate but object to the plaintiff resigning so that she can challenge the Trustee's decision to pay 100% of the death benefit to the estate. That inconsistency is further emphasised by the fact that a successful claim under the Family Provision Act will reduce the assets of the estate available for distribution to the defendants. On the other hand, the death benefit is not an asset of the estate. Rather, it is a benefit that may vest in the estate, if, and only if, the Trustee exercises its discretion to pay the benefit to the estate and not wholly to the plaintiff.
In my view, contrary to the defendants' submissions the fact that the plaintiff is making a claim under the Family Provision Act is a reason why the court should accede to her request for removal as administrator. That said, this case may be distinguished from those cases in which personal representatives make claims under the Family Provision Act in their personal capacities against both themselves in their representative capacities and other beneficiaries as further defendants without objection being taken to the obvious conflict. In this case, however, it is the plaintiff who wishes to be replaced for reasons that include her position as both a plaintiff and a defendant in the Family Provision Act claim. The court should not compel her to continue to act in a position of conflict.
Mr England is an experienced and reputable legal practitioner who is capable of administering the estate efficiently. Whilst it is true that he will charge professional fees for so doing, having an independent and impartial administrator should assist in avoiding the controversies that have beset this administration thus permitting an efficient and cost-effective administration - an outcome that is in the interests of all beneficiaries.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Research Associate/Orderly to the Honourable Justice Tottle
1 APRIL 2019

Name of Beneficiary	Relationship	Dependency Type	Proportion of benefit
The estate of the late Boguslaw Bienias	Legal Personal Representative	Not Applicable	100%