IN THE ESTATE OF STANLEY JENNINGS (Dec'd)
[2024] WASC 31
•8 FEBRUARY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: IN THE ESTATE OF STANLEY JENNINGS (Dec'd) [2024] WASC 31
CORAM: WHITBY J
HEARD: 8 FEBRUARY 2024
DELIVERED : 8 FEBRUARY 2024
FILE NO/S: PRO 6189 of 2023
BETWEEN: ARTHUR PAUL BURROWS as executor of the estate of KEITH STANLEY POND & DOROTHY RUTH MIDDLETON as executor of the estate of KEITH STANLEY POND
Applicants
AND
JUNE LORRAINE CAHILL
Respondent
Catchwords:
Probate - Succession - Application to revoke a grant of letters of administration - Death of executor - Executor of deceased executor - Chain of representation - Chain of executorship - Indemnity costs
Legislation:
Administration Act 1908 (WA)
Administration and Probate Act 1935 (Tas)
Administration and Probate Act 1958 (Vic)
Administration and Probate Act 2006 (NI)
Administration of Estates Act 1925 (UK)
Non-contentious Probate Rules 1967 (WA)
Probate and Administration Act 1898 (No 13) (NSW)
Rules of the Supreme Court 1971
Supreme Court Act 1935 (WA)
Result:
Grant of letters of administration with will annexed revoked
Category: B
Representation:
Counsel:
| Applicants | : | M McDiarmid |
| Respondent | : | R Butcher |
Solicitors:
| Applicants | : | DFG Legal |
| Respondent | : | Butcher Paull & Calder |
Case(s) referred to in decision(s):
Drummond v Registrar of Probate (SA) (1918) 25 CLR 318
Flotilla Nominees Pty Ltd v Western Australian Land Authority & Anor [2003] WASC 122 (S)
Maddock v Registrar of Titles (Vict) [1915] 19 CLR 681
Re Banning; Ex Parte Banning [2018] WASC 313
Spencer v Spencer [2009] WASC 198
The Estate of Erminia Agnes Rogers v Rogers [2009] WASC 358
Yara Australia Pty Ltd v Oswal [2012] WASCA 264
WHITBY J:
(This judgment was delivered extemporaneously on 8 February 2024 and has been edited from the transcript).
Summary
These reasons deal with the chain of representation of executors. The chain of representation refers to the automatic transmission of executorship from one executor to the executor of their estate when they die.
In this case, the chain of representation means that when Mr Pond died, Mr Pond's executors automatically became the executors of the unadministered estate of Mr Jennings. Mr Pond's executors, the applicants, do not require any further grant of probate to continue administering the estate of Mr Jennings.
The consequence of the chain of representation is that the grant of letters of administration with the will of Mr Jennings' annexed to the respondent was in error and must be revoked.
Background facts and procedural history
On 27 March 1982, Stanley Jennings (Mr Jennings) died On 22 July 1982, probate of the last will and testament of Mr Jennings dated 23 November 1979 was granted to Keith Stanley Pond (Mr Pond) by the Supreme Court of Western Australia.
The beneficiaries of Mr Jennings' will are Ruth Jane Pond, Mr Pond, June Lorraine Cahill (the respondent) and Betty Jean Phillip (Ms Phillip).
On 8 January 2003, Ruth Pond died. On 23 June 2003, probate of the last will and testament of Ruth Pond was granted to the respondent and Ms Philip. The beneficiaries of the will of Ruth Pond are Mr Pond, the respondent and Ms Philip.
Mr Pond died on 2 June 2023. On 16 August 2023, probate of the last will and testament of Mr Pond dated 25 May 2023 was granted to the applicants, Arthur Paul Burrows and Dorothy Ruth Middleton.
On 30 August 2023, the respondent applied for letters of administration with the will annexed of Mr Jennings' estate. In support of her application for letters of administration, the respondent filed her affidavit sworn on 30 August 2023 (Cahill Affidavit). In the Cahill Affidavit, the respondent deposes to Ms Philip having consented to the application for letters of administration.[1]
[1] Cahill Affidavit [15]; Annexure G.
On 12 September 2023, a registrar of this court issued a requisition to the respondent in the following terms:
1.What attempts have been made by the applicants to ascertain if Keith Stanley Pond died leaving a will (in which event, pursuant to the chain of representation, the executor appointed under Mr Pond's would be first placed to administer the remainder of the deceased's estate)?
2.Letters of administration with the will annexed de bonis non will not be granted absent proof of reasonable attempts to identify if Mr Pond died leaving a will, and if so, proof that the executor appointed under that will has been given notice of this application.
On 28 September 2023, the respondent, by her solicitors responded to the requisition and advised:
1.Mr Pond made a will dated 20 March 2023 which appointed the respondent as executor (a copy of the will was enclosed).
2.Following the death of Mr Pond on 2 June 2023, Ms Middleton orally advised the respondent that she had located another will for Mr Pond but that Ms Middleton did not provide details of the date of the will.
3.On 12 July 2023, the solicitors for the respondent wrote to Ms Middleton enquiring about the will (a copy of the letter was enclosed). No reply was received.
4.Mr Pond's personal entitlement in the estate of Mr Jennings was finalised by way of Deed of Family Arrangement dated 11 February 2011 (Deed) and the only part of Mr Jennings' estate that remained unadministered was two lots of land in Forrestdale which were to be transferred to the respondent pursuant to the Deed. The respondent and adjoining lot owners of the Forrestdale land were in the process of selling the land and any delay in selling may be costly.
5.Although there remained doubt as to who the executor was of Mr Pond's will, on the information currently available to the respondent, it was the respondent.
6.The Western Australian legislation does not mandate a chain of representation but the respondent accepted that it was reasonable for the court to rely on English common law to that effect. However, the practical issues identified by the respondent in administering the estate of Mr Jennings indicated that the proper administration of the estate is best served by the respondent being the administrator of Mr Jennings' estate.
On 29 September 2023, letters of administration with the 23 November 1979 will of Mr Jennings annexed was granted to the respondent.
On 24 November 2023, the solicitors for the applicants emailed the principal registrar of the court advising that they were the executors of Mr Pond's estate and requested a copy of the respondent's affidavit filed in support of her application for letters of administration with the will annexed in relation the estate of Mr Jennings.
On 28 November 2023, with the consent of the applicants, a registrar wrote to the solicitors for the respondent informing them of the request from the applicants and requested that the respondent notify the court of any cogent reason why access to the affidavit should not be granted by 1 December 2023.
On 29 November 2023, the respondent sent a letter (on her own behalf) to the court in response to the request from the registrar. The letter detailed the history of the Forrestdale land and her involvement in dealing with that land, and conversely Mr Pond's lack of involvement in dealing with that land.
On 30 November 2023, the respondent sent an email to the court in further response to the request from the registrar advising that she objected to her affidavit being provided to the applicants on the grounds that it would raise contentious issues between the applicants and herself.
On 1 December 2023, the registrar provided the applicants with a copy of the affidavit on the basis that he was satisfied that they had a cogent reason why access should be granted and that the respondent had not provided a cogent reason why it should not.
By letter dated 4 December 2023 to the registrar, the solicitors for the applicants seek an order pursuant to r 35 of the Non-contentious Probate Rules 1967 (WA) (NCPR) to revoke the grant of letters of administration to the respondent (Application). The applicants rely upon affidavit of Helen Cecelia Long sworn on 23 January 2024 (Long Affidavit) in support of the Application.
The registrar referred the Application to a Judge for determination pursuant to r 4(4) of the NCPR.
Power to revoke a grant of letters of administration
Section 29 of the Administration Act 1908 (WA) (Administration Act) provides:
29.Court may revoke grant of administration
(1)Where administration of the estate of a person has been granted the Court may, at any time, upon the application of any person interested in the estate or of its own motion on the report of the Principal Registrar, revoke the administration.
The applicants have not commenced separate proceedings for revocation of the grant of letters of administration to the respondent and therefore O 73 of the Rules of the Supreme Court 1971 (RSC) which govern contentious probate proceedings do not apply to the Application.
The practice and procedure in non-contentious probate matters, as is the case here, is governed by NCPR.
Relevantly, O 4 and O 35 of the NCPR provide that:
4.Jurisdiction of the Registrar
(1)The Registrar may exercise the powers of a Judge in Chambers in and about the granting of probate and administration, and in and about the granting to the Public Trustee of orders to administer the estates of deceased persons, and may transact all such business and exercise all such powers and authorities in respect of voluntary or non-contentious probate jurisdiction as under the Act, the Supreme Court Act 1935, the Public Trustee Act 1941, the Rules of the Supreme Court 1971, or these rules, may be transacted or exercised by a Judge in Chambers except in respect of the following proceedings and matters, that is to say -
(a)applications and orders under under s 26(2) and (6) of the Act;
(b)subject to the provisions of r 35(1) and (2) applications and orders under s 29 of the Act, and
(c)applications under s 64 of the Act to remove caveats.
(2)Nothing contained in these rules derogates from or limits the jurisdiction or powers conferred by the Act on a Registrar.
(3)The Registrar may require an application made to him to be brought by summons, and may require an application made to him, whether by summons or otherwise, to be brought before a Judge by summons or before the Court on motion.
(4)Without prejudice to the provisions of subrule (3), where a matter appears to the Registrar proper for the determination of a Judge, the Registrar may refer it to a Judge, and the Judge may either dispose of the matter or refer it back to the Registrar with such directions as he may think fit.
35.Amendment and revocation of grant
(1)Where the Registrar is satisfied that a grant should be amended or revoked, he may make an order accordingly.
(2)Except in special circumstances, a grant shall not be amended or revoked under this rule other than on the application or with the consent of the person to whom the grant was made.
(3)Where an order has been made for the amendment of a grant, the original grant shall be produced to the Registry for notation, or its non-production accounted for.
(4)Where an order has been made under the Inheritance (Family and Dependants Provision) Act 1972 the original grant shall be produced to the Registry, together with a certified copy of the order and 2 photographic copies thereof.
A registrar does have jurisdiction to hear applications for the revocation of a grant of administration pursuant to s 29 of the Administration Act, subject to the provisions of r 35 of the NCPR. However, where the registrar is of the view that the matter appears to be proper for the determination of a judge, he or she may refer it to a judge. That is the procedure that has been properly followed in this Application.
As a judge hearing the Application, my jurisdiction to revoke the grant of letters of administration is not subject to the limitations on the registrar's jurisdiction imposed in r 35(2) of the NCPR. Therefore, I do not need to find special circumstances in order to revoke a grant of letters of administration.
In any event, the probate jurisdiction conferred upon the court is wide as provided for in s 18 of the Supreme Court Act 1935 (WA):
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.
Should the grant of letters of administration to the respondent be revoked?
The applicants rely upon the principle of the unbroken chain of representation - that is as the executors of Mr Pond's estate they automatically become the executors of Mr Jennings' estate.
The respondent submits the chain of representation is an English legal practice which is specifically provided for in the Administration of Estates Act 1925 (UK), specifically s 7 which states that: 'An executor of a sole or last surviving executor of a testator is the executor of that testator'.
The respondent says that, although the English legislation has been mirrored in various Australian states, Western Australia has no equivalent statutory provision.
Counsel for the respondent submits that upon his death, Mr Pond was no longer able to act as the executor for Mr Jennings and that the respondent, as an interested party pursuant to s 37 of the Administration Act, was entitled to apply for a grant of administration.
Counsel for the respondent referred to s 37 of the Administration Act in support of a submission that the respondent was entitled to apply for letters of administration given that the applicants had not applied for a grant of probate in relation to Mr Jennings' estate.
Section 37 of the Administration Act provides:
37.Probate or administration if executor etc. absent or neglects to obtain probate etc.
Where an executor neglects to obtain or to renounce probate within 2 months from the death of the testator or from the time of such executor attaining the age of 18 years, or where an executor is unknown or cannot be found, the Court may, upon the application of any person interested in the estate, or of any creditor of the testator, grant administration with the will annexed to the applicant, and such administration may be limited as the Court thinks fit.
Counsel for the respondent submitted that the practice in Western Australia required the applicants to apply for a grant of probate of Mr Jennings' estate within two months of the death of Mr Pond, and their failure to do so meant that the respondent was entitled to a grant of letters of administration.
In any event, the respondent says that she should be permitted to complete the administration of Mr Jennings' estate as the executors of Mr Pond's estate have no interest in the estate of Mr Jennings.
In The Estate of Erminia Agnes Rogers v Rogers,[2] Heenan J referred to two broad categories where a grant of probate or letters of administration may be revoked. The first category was where there had been an error in the grant of representation or where it should not have been made. The second category was where the revocation was necessary to ensure the due and proper administration of the estate.
[2] The Estate of Erminia Agnes Rogers v Rogers [2009] WASC 358 (Rogers) [23]
In my view, the Application is properly categorised as falling within the first category - the grant of letters of administration to the respondent should not have been made. That is for the following reasons.
In the High Court case of Drummond v Registrar of Probate, Barton J, in holding the principle of the chain of executorship applied, said:[3]
… the rule laid down in Tristram & Coote, 15th ed., p. 68, is clear, namely that 'an executor having taken probate of his own testator's will becomes executor, ipso facto, not only of that will but also the will of any testator of whom the other was the sole or surviving executor.
[3] Drummond v Registrar of Probate (SA) (1918) 25 CLR 318, 321 (Drummond).
The rationale behind this the chain of executorship is articulated by Griffith CJ in Maddock v Registrar of Titles (Vict):[4]
At common law the power and estate of an executor was regarded as founded upon the special confidence and actual appointment of the testator. His estate was therefore regarded as transmissible. It was held to be transmitted from a sole or last surviving executor to his own executor, but not from one of several executors to whom alone probate had been granted. So long as the chain of representation was unbroken the ultimate executor was regarded as the executor, and, as such the representative, of the original testator.
[4]Maddock v Registrar of Titles (Vict) [1915] 19 CLR 681, 688 - 689.
The common law principle espoused in Drummondhas been codified in various Australian jurisdictions,[5] however not in Western Australia. Notwithstanding this, the common law principle of the chain of executorship has been held to apply in Western Australia. In Re Banning; Ex Parte Banning, Vaughan J, citing Drummond as authority, stated:[6]
An executor having been granted probate of a testator's will becomes executor not only of that will but also the will of any testator of whom the deceased was the sole or surviving executor.
[5] Section 50 Administration and Probate Act 2006 (NI), s 44A Probate and Administration Act 1898 (No 13) (NSW), s 17 Administration and Probate Act 1958 (Vic), s 10 Administration and Probate Act 1935 (Tas).
[6] Re Banning; Ex Parte Banning [2018] WASC 313 [31].
That the principle of the chain of representation applies in Western Australia is recognised by the Law Reform Commission of Western Australia in its August 1990 Report on the Administration Act, at par 32:
Where a sole or last surviving proving executor of a testator dies having by will appointed an executor, the latter executor, on proving the will, also becomes the representative of the original testator. The rule goes back over several centuries.
Executorship will be transmitted from proving executor to proving executor, such executors being called executors by representation. The chain of representation, as it is called, will be broken if a sole or sole surviving executor by representation dies intestate or without appointing an executor, or if the executor whom he or she appoints fails to prove. If when the chain of representation is broken, any part of the original testator's estate remains unadministered, the Court will grant letters of administration with the will annexed of the unadministered estate (known as a grant de bonis non). The rule as to the chain of representation is thus a convenient one as when it applies it provides an automatic mode of dealing with a problem that otherwise necessitates an application to the Court with its attendant costs and possible delays. In Victoria the common law position has been substantially enacted in section 17 of the Administration and Probate Act 1958. This is also the case in some other Australian jurisdictions. In the Commission's opinion, a similar enactment is desirable in this state, so that the law on the topic will be more accessible than at present. (citations omitted)
The chain of representation operates automatically - a separate application for a grant of probate over the original testator's will by the executor of the executor is not required - that is the very purpose of the chain of representation. Section 37 of the Administration Act does not require an application to be made, in this case, by the applicants for a grant of probate over Mr Jennings' estate, only over Mr Pond's estate. The applicants are, by operation of the unbroken chain of representation, automatically executors of Mr Jennings' estate by virtue of obtaining a grant of probate over Mr Pond's estate.
Further, the grant of probate to the applicants over Mr Pond's estate was made prior to the grant of letters of administration to the respondent. The respondent's solicitors would have been aware of the grant of probate to the applicants over Mr Pond's will had a search of the probate registry been requested pursuant to r 43A of the NCPR. That would have saved both the applicants and the respondent the time and costs that have followed.
I find that the grant of letters of administration to the respondent should not have been made, as the applicants were already the executors of Mr Jennings' estate. On that basis, I am satisfied that the grant of letters of administration to the respondent should be revoked.
If an order is made that revokes a grant of administration, it is appropriate for the court to make a further order requiring the grantee to bring the grant into court for termination of any authority conveyed by it.[7]
[7] Spencer v Spencer [2009] WASC 198 [14].
There is also an issue as to the costs of the application. The applicant seeks an order that the respondent pay the applicant's costs on an indemnity basis, alternatively that their costs be paid by the respondent and fixed in the sum of $5,000. The applicants rely upon the correspondence annexed to the Long Affidavit in support of their application for indemnity costs. That correspondence evidences four separate requests, being on 15 November 2023, 23 November 2023, 28 November 2023 and 19 January 2024, by the applicants for the respondent to consent to the revocation of the grant of letters of administration. On each occasion the solicitors for the applicants foreshadowed an application for indemnity costs in the even that an application for revocation of the grant of letters of administration was required.
The respondent submits that the costs should be paid from the estate.
Pursuant to s 37 of the Supreme Court Act 1935 (WA) (the Act), the court has a general discretion to award costs and has full power to determine by whom or out of what estate, fund or property, and to what extent costs are paid. This discretion is subject to the rules of the court. Order 66 r (1) of the RSC provides that, without limiting the general discretion conferred on the court by the Act, the court will generally order that the successful party to any action or matter will recover his costs. This is referred to as the general rule that 'costs follow the event'.
I am satisfied that it is appropriate that an order be made for the costs to be paid by the estate. I recognise that the effect of this is essentially to visit most of the costs upon the respondent and Ms Philip.
The second issue is whether the applicants are entitled to have their costs paid by the estate on an indemnity basis.
An indemnity costs order is only made in exceptional circumstances - there must be a special or unusual feature of a case for a court to exercise its discretion to award costs on an indemnity basis.[8] An indemnity costs order may be made where there has been improper or unreasonable conduct of the unsuccessful party or their legal advisers.[9]
[8] Yara Australia Pty Ltd v Oswal [2012] WASCA 264 [33]
[9] Flotilla Nominees Pty Ltd v Western Australian Land Authority & Anor [2003] WASC 122 (S) [25]
In my view, the conduct of the respondent in opposing the Application falls short of constituting improper or unreasonable conduct. The respondent did obtain a grant of letters of administration with the will of Mr Jennings annexed, when that was in error.
It is appropriate that I fix the costs in order to limit the further costs incurred by the parties. Having regard to all of the circumstances, I consider that the costs of the Application should be fixed in the amount of $5,000.
Orders
I make the following orders:
1.The letters of administration with the will of Stanley Jennings annexed granted to June Lorraine Cahill by the Supreme Court of Western Australia dated 29 September 2023 be revoked.
2.On or before 15 February 2024 June Lorraine Cahill deliver the letters of administration dated 29 September 2023 to the Registry of the Supreme Court of Western Australia.
3.June Lorraine Cahill appear before a Registrar of this Court on a date to be fixed for examination on oath or affirmation at the request of Arthur Paul Burrow and Dorothy June Middleton as executors to answer questions about the nature and extent of her administration and the location of assets and liabilities of the estate and documents.
4.There be liberty to apply.
5.The applicants' costs of the application be paid from the estate of Mr Jennings fixed in the sum of $5,000.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to the Hon Justice Whitby
8 FEBRUARY 2024
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