In the Estate of KEVIN CLAY DUKE (Decd)
[2021] WASC 275
•12 AUGUST 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: In the Estate of KEVIN CLAY DUKE (Decd) [2021] WASC 275
CORAM: SMITH J
HEARD: 10 AUGUST 2021
DELIVERED : 10 AUGUST 2021
PUBLISHED : 12 AUGUST 2021
FILE NO/S: PRO 1553 of 2018
BETWEEN: RHONDA MABEL CHESTER
Executor
Catchwords:
Probate and administration - Administration Act 1903 (WA) - Where persistent failure by executor to pass accounts - Hearing by judge on report of registrar - Whether probate should be revoked and an administrator appointed
Legislation:
Administration Act 1903 (WA)
Result:
Grant of probate revoked and cancelled
Letters of administration to issue
Category: B
Representation:
Counsel:
| Executor | : | No appearance |
| Applicant in PRO 4447 of 2021 | : | In Person |
Solicitors:
| Executor | : | No appearance |
| Applicant in PRO 4447 of 2021 | : | In Person |
Case(s) referred to in decision(s):
Nil
SMITH J:
Introduction
This is a matter that came before the court on its own motion upon the report of the Acting Principal Registrar, that the executor, Ms Rhonda Mabel Chester of the Estate of Kevin Clay Duke, deceased (the Estate), had neglected to attend to the passing of accounts.
Notice was given by a registrar on 19 November 2019 to the executor to pass the accounts of the Estate in accordance with r 37 of the Non-Contentious Probate Rules 1967 (WA) by 20 December 2019, after a complaint was received from a beneficiary of the Estate, Ms Michelle Leicester who is a child of the deceased.
In the notice dated 19 November 2019, the executor was informed:
(a)up to date accounts and plan of distribution were to be prepared in accordance with form 4 in the schedule to the Rules, verified by affidavit of the executor, and filed by 20 December 2019; and
(b)an appointment to have the accounts passed and allowed had been fixed for 30 January 2019, at 10.00am at the court.
No response was received from the executor to the notice dated 19 November 2019. A follow-up letter was sent by a registrar on 30 March 2020, but no response was received.
On 8 February 2021, notice was given to the executor pursuant to s 44(1) of the Administration Act 1903 (WA) that she had neglected to pass the accounts within the period prescribed and requiring her to immediately attend to passing the accounts.
No response was received to the notice given on 8 February 2021.
On 23 March 2021, Acting Principal Registrar Whitby gave notice to the executor in the following terms:
1.On 28 March 2018, probate of the estate of Kevin Clay Duke, late of 3 Richmond Place, Kingsley, Western Australia, deceased, who died on 14 February 2018, was granted to you, Ms Rhonda Mabel Chester.
2.On 19 November 2019, a Registrar caused a notice to be issued to you to pass the accounts of the estate of Kevin Clay Duke, late of 3 Richmond Place, Kingsley, Western Australia, deceased, in accordance with the Non-contentious Probate Rules 1967 (WA) Rule 37 by 20 December 2019.
3.One month passed from the expiration of the period fixed by the Registrar (being 20 December 2019), and you had neglected to comply with the notice.
4.By notice dated 4 February 2021, you were given notice pursuant to the Administration Act 1903 (WA) s 44(1), that you had neglected to pass accounts within the period prescribed. By that notice, you were also directed to immediately attend to pass the accounts.
5.To date, you have neglected to attend to the passing of accounts.
Notice of hearing
1.The Supreme Court Act 1935 (WA) s 18 provides that the Supreme Court has jurisdiction and authority in relation to the revoking of probate of wills of all real and personal estate whatsoever within Western Australia.
2.I NOW GIVE YOU NOTICE THAT at a hearing before a Judge at 10:00am on Monday, 3 May 2021, the Court will consider whether to remove you as executor and revoke your grant of probate of the estate of Kevin Clay Duke, late of 3 Richmond Place, Kingsley, Western Australia, deceased.
3. If you do not attend the hearing, orders may be made in your absence. It is suggested that you seek legal advice in relation to this matter.
The executor did not appear at the hearing before the court on 3 May 2021 or otherwise communicate with the court.
There having been no appearance by or on behalf of the executor, the court made the following orders in her absence:
1.Unless the executor files and serves on the beneficiaries to the estate, who are the deceased's children, Michelle Susan Leicester and Gregory Clay Duke, an affidavit within 21 days of the date of this order setting out the reasons why the grant of probate to her should not be revoked and that she be removed as an executor, including the steps that she has taken to pay the accounts of the estate and distribute the assets of the estate, the estate assets which remain unadministered and under her control and refer to all papers, accounts, receipts or other documents relating to the estate assets, the matter will be listed for a further hearing to consider whether the court on its own motion should:
(a)revoke the grant of probate without further hearing and remove the executor;
(b)order the executor to deliver to the registry of this court the original grant of probate for cancellation;
(c)make any further orders requiring the executor to describe her administration of the estate and identify estate assets that remain unadministered or to attend before a Registrar for examination of the assets of the estate;
(d)consider whether contempt proceedings should be instituted against the executor for failing to comply with the orders of the court; and
(e)hear from any beneficiary of the estate as to whether they wish to apply for a grant of probate or letters of administration.
The executor did not file any affidavit within the time prescribed in order 1 of the Order made on 3 May 2021.
On 16 July 2021, notice was given to the executor by the court that the matter would be relisted for hearing on Tuesday, 10 August 2021 at 10.30am, and that if she did not appear, the orders contemplated in order 1(a) to (e) may be made in her absence.
On 2 August 2021, Ms Leicester filed a motion for grant of letters of administration with will annexed in PRO 4447/2021, and a supporting affidavit sworn by her on 1 August 2021, in which she deposed that:
(a)if she obtains a grant of letters of administration with the will annexed, she will administer the Estate of the deceased according to law; and
(b)she is over the age of 18 years and the daughter of the deceased.
The notice of motion in PRO 4447/2021 was listed for hearing at the same time as the hearing of whether the court should act on its own motion to remove the executor of the Estate and to revoke her grant of probate of the Estate.
Ms Leicester appeared at the hearing on 10 August 2021, but the executor did not appear.
Probate should be revoked
The deceased made his last will and testament on 13 October 1992. By his will he appointed Ms Chester as his executor and trustee of his will and gave:
(a)the proceeds of his superannuation, any insurance policies, his automatic motor vehicle and household contents to Janice Maree Smith; and
(b)the balance of his Estate to his trustee to be held upon trust for his children.
The Estate is of modest value. In an affidavit sworn by Ms Chester on 21 March 2018 in support of her application for a grant of probate she deposed that:
(a)the deceased left property within the State of Western Australia; and
(b)Annexure 'A' to her affidavit was a true statement giving particulars of all movable and all immovable property of the Estate in Western Australia including its value and all debts owing by the deceased at the time of his death.
In Annexure 'A' to the affidavit sworn by Ms Chester the value of total movable property of the Estate is recorded as at the date of the death of the deceased as $76,786.28, of which an amount of $53,505.47 was held in a superannuation account, the total value of household contents was an amount of $3,000 and a motor vehicle to the value of $4,500, leaving a total balance of the residue of the Estate of $15,780.81. No debts were recorded.
By s 43 of the Administration Act, an executor or administrator is under a duty to:
(a)collect and get in the real and personal estate of the deceased and administer it according to law;
(b)file an inventory of the estate of the deceased, and pass his accounts relating thereto within such time, and from time to time, and in such manner as may be prescribed by the rules or as the Court may order;
(c)when required to do so by the Court, deliver up the grant of probate or administration to the Court.
It is clear that the executor has failed to pass the accounts as required by s 43 of the Administration Act.
Pursuant to s 25 and s 32 of the Administration Act, Ms Leicester, as a child of the deceased is a beneficiary of the Estate, and as such has a right to apply for administration.
In my opinion, given that the executor has not appeared in these proceedings to answer questions about the nature and the extent of the administration and the location of unadministered assets of the Estate, the preferable way to ensure the due and proper administration of this small Estate (and of the interests of the parties beneficially entitled to it) is to revoke probate, and make an order granting administration of the Estate to Ms Leicester.
After hearing from Ms Leicester, the court made the following orders:
1.The grant of probate of the estate of Kevin Clay Duke made by the Supreme Court of Western Australia on 28 March 2018 to Rhonda Mabel Chester, the executor appointed under the will, be and is revoked and cancelled.
2.Rhonda Mabel Chester shall, within 10 days of service of these orders, deliver to the Central Office of the Supreme Court of Western Australia the grant of probate dated 28 March 2018.
3.Within 21 days of these orders, a registrar of the Supreme Court of Western Australia shall issue letters of administration (with the will annexed) of the estate of Kevin Clay Duke to Michelle Susan Leicester of 56 Nalpa Way, Duncraig, Western Australia, as administrator of the estate of Kevin Clay Duke, a person entitled in distribution of the estate of the deceased.
4.Michelle Susan Leicester is to be provided with a copy of the affidavit of Rhonda Mabel Chester sworn 21 March 2018, and a copy of the death certificate of the deceased held on PRO 1553/18, for the purposes of administration of the estate of the deceased.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
Associate to the Honourable Justice Smith
12 AUGUST 2021
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