Hart v Hart - [2010] WASC 329

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: HART -v- HART [2010] WASC 329

CORAM: JENKINS J

HEARD: 18 OCTOBER & 9 NOVEMBER 2010

DELIVERED : 9 NOVEMBER 2010

FILE NO/S: CIV 1928 of 2007

BETWEEN: JOHNIE HART
Plaintiff
AND
TED ARNOLD HART
Defendant

Catchwords:

Succession - Wills, probate, and Administration - Letters of Administration

Legislation:

Administration Act 1903 (WA), s 6, s 25(1)
Non-Contentious Probate Rules 1967, r 22(1)

Result:

Grant of letters of Administration
Counter claim dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr A Prime
Defendant: Mr C Biris (18 October 2010 only)

Solicitors:

Plaintiff: McCallum Donovan Sweeney
Defendant: Chris Biris

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

In The Goods of Loveday [1900] P 154

JENKINS J: (These reasons were delivered orally and have been edited from transcript). These proceedings concern the estate of Daphne Leonie Sheppard who died on 15 March 2007 without leaving a formal will. The plaintiff seeks an order for letters of administration of Mrs Sheppard's estate.
Mrs Sheppard, who was a widow when she died, was survived by six of her seven children. The plaintiff, Johnie Arnold Hart, is her eldest son. The defendants, Ted Arnold Hart and Margaret Rose Sheppard, are also her children. Margaret died after Mrs Sheppard and these proceedings were commenced. Mrs Sheppard's other living children are Thomas James Sheppard, Barbara Gaye Hutchison and Leonie Anne Kennedy. They are all adults. A seventh child, Richard George Sheppard, predeceased his mother.
In order to avoid confusion over identical last names, but without meaning any disrespect, I will refer to all the children by their first names.
Ted has filed an affidavit which states that Margaret left a will by which she gave her estate in equal shares to her five children. He also says that he is the executor of her estate. At the hearing of this action a solicitor, Mr Biris, appeared for Ted apparently in both his capacities as the first plaintiff and the executor of Margaret's estate. However, Mr Biris soon acknowledged to me that he did not have current instructions to act for Ted having not heard from him for some months. Further, his last instructions from Ted were that he did not wish to proceed to defend the action.
Mr Biris then made an oral application which I granted for an order declaring that he has ceased to be the solicitor acting for Ted in either capacity. I was satisfied that Ted had had notice of the hearing of the plaintiff's action and so proceeded to hear it in his absence. However, at the conclusion of the evidence I adjourned the proceedings to today and ordered that further attempts be made to advise Ted that his solicitor had been given leave to withdraw, of the adjourned date and that he had to let my Associate know by no later than 2 November 2010 if he wished to oppose the orders sought by Johnie.
Letters have been sent to Ted at his last known place of residence and at another address where it was thought he may receive mail but no response has been received from him. He has not appeared today. In these circumstances, I am prepared to proceed to give judgment.
Mrs Sheppard's estate is substantially comprised of her former home at Westfield. She also had some personal property which Johnie believes is still in the home and some cash at bank. There may be some outstanding rates and taxes owed on the home. A headstone is still to be erected on Mrs Sheppard's grave.
Johnie commenced this action because after Mrs Sheppard died the defendants' opposed letters of administration being granted to him. They said that Mrs Sheppard had made an unexecuted informal will shortly prior to her death by which she left her home to Ted, Thomas and Margaret. They also said that the will gave Margaret the right to live in the house for three years.
Nearly two years later the defendants filed a defence to Johnie's action and also filed a counterclaim which sought that the court pronounce for the validity of the informal will and that probate be granted of that will to Ted and Margaret. Johnie had lodged a caveat against such an outcome but allowed it to lapse when Ted and Margaret's then solicitor agreed on their behalf not to lodge any applications in respect to the estate. However, in February 2010 without notice to Johnie, Ted applied for and was granted letters of administration limited as follows:
[F]or the purpose only of getting in and receiving the estate and doing such acts as may be necessary for the preservation of the same including the sale of the deceased's house, until further representation be granted.
This application was apparently made on the basis that Mrs Sheppard's home was in imminent danger of being vandalised. However, it is clear that the risks to the home were not so great that notice could not have been given to Johnie and his other siblings of the application.
Further, the application appears to have been made without compliance with the Non‑Contentious Probate Rules 1967, r 22(1), which requires an applicant for administration to file the consents of any other persons entitled to that administration to the grant or evidence that he or she was served with the application.
There are other matters of concern. They are:
(1)The application appears to have breached the undertakings given to Johnie;
(2)The affidavit filed by Ted in support of the application asserted that Mrs Sheppard died intestate, contrary to his defence filed in this action which to this day remains unamended;
(3)Johnie was not given notice of the limited letters of administration granted to Ted until April despite the fact that he has been represented by the same solicitors and his address for service has always been known to Ted and his solicitor, and
(4)Although Ted has had the title to Mrs Sheppard's property transferred into his name, it has not yet been sold. According to Johnie, it has not even been placed on the market and it is still vulnerable to vandalism.
These are matters which I have taken into account in deciding this application.
By s 6 of the Administration Act 1903 (WA):
The Court shall have jurisdiction to grant probate of the will or administration of the estate of any deceased person leaving property whether real or personal in Western Australia.
Where a person dies either wholly or partly intestate, the property as to which he or she dies intestate is distributed according to the entitlements set out in s 14 of the Act.
From that section it would appear that Mrs Sheppard's estate should she have died intestate is to be equally distributed between her children who survived her, including Margaret. Section 25(1) of the Administration Act provides the Court may grant administration of the estate of a person dying intestate to a person who has attained the age of 18 years and is entitled in distribution to the intestate's estate or otherwise to any other person fit to be so entrusted if a person entitled fails to apply.
In essence, the right to administration follows interest; that is, the person who has the greatest interest as a beneficiary in the estate is normally entitled to the grant: see Butterworths, Wills Probate and Administration Service, vol 1 (27‑09‑08) [1030.11.05].
In this case, that means that Mrs Sheppard's surviving children each have an equal entitlement to the grant of letters of administration. Thomas, Barbara and Leonie have each consented to Johnie being granted letters of administration. That only leaves Ted as a potential administrator.
There is also a general rule when the court is considering whether to grant an administration in the estate that the appointment must be one which advances the real object of administration; that is, due and proper administration of the estate: see In The Goods of Loveday [1900] P 154, 156.
As Ted has chosen not to appear and prosecute his defence or counterclaim, this case is easily resolved. There is no will before me which requires me to consider whether probate should be granted in respect of it. I am satisfied on the evidence before me that Mrs Sheppard died intestate. The issue then is who should be granted letters of administration of her estate?
Johnie has been employed by the Western Australian Police Service since 1976. He has been a police prosecutor in Kalgoorlie but has recently been transferred to Perth. Due to his employment, he has a good understanding of general legal obligations. He understands what needs to be done to distribute and finalise Mrs Sheppard's estate. He has undertaken if granted letters of administration to act in accordance with the Act and any other relevant law. He has also shown admirable patience in dealing with the claim by Ted.
I am satisfied that Johnie is entitled to be granted letters of administration and that his appointment will advance the due and proper administration of Mrs Sheppard's estate. Because of the concerns I have earlier identified in respect of the grant of limited letters of administration to Ted and because he has failed to appear at this hearing, I am satisfied that his continued appointment would not advance the due and proper administration of Mrs Sheppard's estate.
I was initially concerned that there may be some conflict between the limited grant of letters of administration to Ted and the grant of unlimited letters of administration to Johnie. However, Johnie's counsel has convinced me that the terms of the grant to Ted are limited in time to 'until further representation be granted'. Thus, if I grant letters of administration to Johnie, it is in the belief that the limited grant to Ted will immediately come to an end.
Taking all these matters into account, I am satisfied that Mrs Sheppard died intestate. I grant letters of administration of the estate of Daphne Leonie Sheppard to the plaintiff Johnie Hart and I also dismiss the defendant's counterclaim.