In the Matter of the Estate of Assunta Maria Nesci (Dec'd) - [2023] WASC 213

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   IN THE MATTER OF THE ESTATE OF ASSUNTA MARIA NESCI (Dec'd) [2023] WASC 213
CORAM:   SEAWARD J
HEARD:   15 JUNE 2023
DELIVERED          :   15 JUNE 2023
PUBLISHED           :   16 JUNE 2023
FILE NO/S:   PRO 4426 of 2020
BETWEEN:   HOWARD JOHN GINBEY
Executor
AND
MR VINCENZO SORGIOVANNI & MS LUCETTA FRANCINA NESCI-LAWRENCE by their attorney Mr J Butler
Substitute Executors

Catchwords:

Probate and administration - Administration Act 1903 (WA) - Where persistent failure by executor to pass accounts - Hearing by judge on report of registrar - Whether grant of probate should be revoked and substitute executors appointed - Orders for delivery up of grant of probate

Legislation:

Administration Act 1903 (WA)
Non-Contentious Probate Rules 1967 (WA)

Result:

Grant of probate revoked

New grant of probate to be issued by Registrar

Category: B

Representation:

Counsel:

Executor	:	No appearance
Substitute Executors	:	Mr Vincenzo Sorgiovanni & Ms Lucetta Francina Nesci-Lawrence by their attorney Mr J Butler

Solicitors:

Executor	:	No appearance
Substitute Executors	:	In person

Cases referred to in decision:

Estate of Erminia Agnes Rogers v Rogers [2009] WASC 358
In re Ellis v Ellis [2015] WASC 77
In The Estate Of Diane Carol Collison v Collison [2023] WASC 32
Suzanne Dale Smith by her next friend the Public Trustee v Marion Kathryn Partridge as executor of the Estate of Thomas Smith [2018] WASC 128

SEAWARD J:

Introduction

On 15 March 2020, Ms Assunta Maria Nesci (Maria), late of Acacia Living Group in Menora, Western Australia, passed away. Maria left a will, appointing Mr Howard John Ginbey as her executor. Probate was granted to Mr Ginbey on 17 August 2020. Unfortunately, Mr Ginbey has not progressed with the administration of Maria's estate.
This is a matter that came before the court on its own motion, upon the report of the Acting Principal Registrar pursuant to s 44 of the Administration Act 1903 (WA) (Administration Act), that Mr Howard John Ginbey, the executor of the estate of Assunta Maria Nesci, had neglected to attend to the passing of accounts.
At a hearing held before me on 15 June 2023, Mr Ginbey did not appear. I granted leave for counsel for Mr Vincenzo Sorgiovanni (the brother of the deceased, a beneficiary under the will and the named joint substitute executor) and Ms Lucetta Francina Nesci-Lawrence (the named joint substitute executor), to appear. Counsel requested orders to revoke the probate granted to Mr Ginbey and to facilitate the appointment of new administrators to deal with Maria's estate.
At the conclusion of the hearing, I made orders revoking the probate granted to Mr Ginbey and other consequential orders. I indicated that my written reasons for making these orders would be published at a later date. These are those reasons. Intending no disrespect, in these reasons I will follow the practice adopted before me and refer to the deceased by her name Maria.

Factual background

As outlined above, Maria died on 15 March 2020. Probate was granted to Mr Ginbey on 17 August 2020. Mr Ginbey previously practiced as a solicitor, but in his affidavit in support of a grant of probate, Mr Ginbey listed his occupation as 'retired'. As at today's date, Mr Ginbey does not hold a current practising certificate.
The statement of assets and liabilities filed by Mr Ginbey in his application for probate in 2020 states that the total net assets of Maria's estate amounted to $1,188,786.33.
In general terms, Maria bequeathed her entire estate (after payment of funeral expenses, liabilities and costs) to each of her siblings and to each of her late husband's siblings as tenants in common in equal shares. Maria's will also provided that in the event any of those siblings had died during Maria's lifetime and left issue, then such issue would stand in the place of the sibling.
Unfortunately, Mr Ginbey does not appear to have administered Maria's estate.
On 12 September 2022, the solicitors acting for Mr Sorgiovanni and Ms Nesci-Lawrence, wrote to the Supreme Court requesting that notice be given to Mr Ginbey pursuant to s 44 of the Administration Act. Mr Sorgiovanni also filed an affidavit providing a history of his communications with Mr Ginbey regarding his administration of the estate.
In that affidavit, Mr Sorgiovanni deposed that Mr Ginbey contacted Mr Sorgiovanni by email on 12 July 2021 advising that he was 'closing in on completing clearances' on Maria's estate in preparation of making distributions. Mr Ginbey indicated he would need 2-3 weeks before he would be in a position to provide the beneficiaries with a 'pretty clear idea of when [he would] be able to complete [his] work.'
Mr Sorgiovanni deposed that he sent emails to Mr Ginbey on 21 January 2022, 10 February 2022, 19 February 2022 and 5 May 2022 requesting that Mr Ginbey provide an update but Mr Ginbey did not respond to those emails.
Mr Sorgiovanni deposed that on or around 20 July 2022, he and his niece (Lucetta Francina Nesci-Lawrence) engaged Butlers Lawyers & Notaries (Butlers) to assist them in relation to this matter.
Mr Sorgiovanni deposed that Butlers then wrote to Mr Ginbey on 29 July 2022, 15 August 2022, 24 August 2022 and 7 September 2022 and Mr Ginbey did not reply to those letters.
Mr Sorgiovanni deposed that no distribution of Maria's estate has been made by Mr Ginbey.
Mr Sorgiovanni deposed that he was concerned that Mr Ginbey had not made any distribution from the estate, that Mr Ginbey was not responding to correspondence and that Mr Ginbey had failed to perform other administrative tasks in relation to the estate and requested that the Principal Registrar give notice to Mr Ginbey to file accounts for the estate, pursuant to s 44 of the Administration Act.
By notice dated 16 September 2022 Acting Registrar Hosking gave notice to Mr Ginbey to pass the accounts of Maria's estate in accordance with r 37 of the Non-Contentious Probate Rules 1967 (WA) (NCP Rules). That notice also:
(a)required Mr Ginbey to prepare up to date accounts and plan of distribution in accordance with form 4 in the schedule to the NCP Rules, verified by affidavit of the executor, and file the same by 14 October 2022;
(b)required Mr Ginbey to file, by 14 October 2022 original supporting vouchers and a copy of the estate accounts;
(c)waived the requirement in r 37(4) of the NCP Rules to advertise notice of the taking of the accounts, provided Mr Ginbey served on each of the residuary beneficiaries of Maria's estate a copy of the notice, the accounts and a plan of distribution, verified by affidavit by 28 October 2022; and
(d)noted that an appointment to have the accounts passed will be listed in the event that there were objections to the accounts or if the Registrar determined that such a listing was appropriate (and made consequential orders in relation to this process).
This notice was sent by post to Mr Ginbey at the address given in the grant of probate.
No response was received from Mr Ginbey to the notice dated 16 September 2022 and Mr Ginbey did not file the accounts as required by the notice.
A follow-up letter was sent to Mr Ginbey by Registrar Hosking on 25 October 2022 noting the failure to file the accounts and explaining the process in s 44 of the Administration Act where an executor fails to file accounts. The letter advised that if Mr Ginbey neglected to file the accounts, the plan of distribution and an affidavit by 14 November 2022, the matter would be referred to the Principal Registrar pursuant to s 44 of the Administration Act. That letter was sent by post to Mr Ginbey at the address in the grant of probate and by email.
On 14 November 2022, Mr Ginbey emailed the court advising that he only recently became aware of the letter dated 25 October 2022 and requested an extension of time to comply to 14 December 2022.
On 15 November 2022, Registrar Hosking made orders extending the time for compliance with the dates in the notice dated 16 September 2022. Relevantly, the time to provide up to date accounts and a plan for distribution was extended to 14 December 2022 and the time to serve the notice, accounts, plan of distribution and verifying affidavit on each of the residuary beneficiaries was extended to 30 December 2022.
Mr Ginbey failed to comply with the orders issued on 15 November 2022 and no accounts, plan of distribution or affidavit were filed.
Consequently, the matter was referred to the Principal Registrar pursuant to s 44(1) of the Administration Act.
On 12 January 2023, Mr Sorgiovanni and Ms Nesci-Lawrence's solicitors wrote to the court requesting that the matter be referred to a judge pursuant to r 4(4) of the NCP Rules. Accompanying that letter was a second affidavit sworn by Mr Sorgiovanni on 12 January 2023, in which Mr Sorgiovanni attached a copy of his earlier affidavit, and deposed as to the events which had occurred since that earlier affidavit. Mr Sorgiovanni also deposed that some of the beneficiaries of the estate were in poor health and their inheritance would assist them to meet their medical expenses. Finally, Mr Sorgiovanni requested that the grant of probate made to Mr Ginbey be revoked and that he and Ms Nesci-Lawrence be appointed as administrators of the estate by way of a grant of letter of administration.
On 18 January 2023, Acting Principal Registrar Davies gave notice to Mr Ginbey pursuant to s 44(1) of the Administration Act in the following terms:
To: Howard John Ginbey
[address]
[email]
1.On 17 [August] 2020, probate of the estate of Assunta Maria Nesci, deceased, late of Acacia Living Group, 51 Alexander Drive, Menora, Western Australia was made to you, Mr Howard John Ginbey.
2.On 16 September 2022, a Registrar caused a notice to be issued to you to file the accounts of the estate of Assunta Maria Nesci, deceased, late of Acacia Living Group, 51 Alexander Drive, Menora, Western Australia, in accordance with the Non-contentious Probate Rules 1967 (WA) Rule 37 by 14 October 2022.
3.Four months have passed since the expiration of the period fixed by the Registrar (being 14 October 2022), and you have neglected to comply with the notice.
4.The Administration Act 1903 (WA) s 44(1) provides as follows:
If an executor or administrator neglects to file an inventory or to pass accounts within one month after the expiration of the period fixed by the rules, the Principal Registrar shall cause such executor or administrator to be notified of such neglect.
5.I NOW GIVE YOU NOTICE Pursuant to the Administration Act 1903 (WA) s 44(1), that you have neglected to pass accounts within the period prescribed.
6.You must file or attend to pass the accounts no later than 19 February 2023. Should you fail to do so, I note that by operation of the Administration Act 1903 (WA) s 29(1), the Court may exercise its discretion to revoke the grant made to you of its own motion on the report of the Principal Registrar.
That notice was sent to Mr Ginbey by post to the address in the grant of probate and by email.
Mr Ginbey did not file any accounts or affidavits by 19 February 2023.
On 21 February 2023, Mr Sorgiovanni and Ms Nesci-Lawrence's solicitors sent a letter to the court noting the failure of Mr Ginbey to file the accounts and requesting that the court revoke the grant of probate made to Mr Ginbey, as foreshadowed in the notice dated 18 January 2023.
On 11 May 2023, Principal Registrar McDonald ordered that:
By Thursday 25 May 2023, the executor is to file any affidavits or submissions on which he seeks to rely at the hearing of the motion listed before the Court to determine whether to remove him as the executor and revoke the grant of probate made on 17 August 2020 in the estate of Assunta Maria NESCI (deceased).
That order was sent by post to Mr Ginbey on 12 May 2023. Mr Ginbey did not file any affidavit or submissions within the time prescribed in the order.
On 11 May 2023, Principal Registrar McDonald also issued a Notice of Hearing before a Judge for 1 June 2023 at 2.15 pm to Mr Ginbey and Mr Sorgiovanni and Ms Nesci-Lawrence's solicitors. That notice was in the following terms:
Background
1.On 17 August 2020, probate of the estate of Assunta Maria Nesci, deceased, late of Acacia Living Group, 51 Alexander Drive, Menora, Western Australia was made to you, Mr Howard John Ginbey.
2.On 16 September 2022, a Registrar caused a notice to be issued to you to file the accounts of the estate of Assunta Maria Nesci, deceased, late of Acacia Living Group, 51 Alexander Drive, Menora, Western Australia, in accordance with the Non-contentious Probate Rules 1967 (WA) Rule 37 by 14 October 2022.
3.One month passed from the expiration of the period fixed by the Registrar (being 14 October 2022), and you neglected to comply with the notice.
4.By notice dated 18 January 2023, 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
6.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.
7.I NOW GIVE YOU NOTICE THAT at a hearing before a Judge on Thursday, 1 June 2023 at 2:15pm, the Court will consider whether to remove you as executor and revoke your grant of probate of the estate of Assunta Maria Nesci, deceased, late of Acacia Living Group, 51 Alexander Drive, Menora, Western Australia, deceased.
8.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.
That notice was also sent to Mr Ginbey by post.
The matter came before me on 1 June 2023 at 2.15 pm. There was no appearance at that time by Mr Ginbey. Mr Ginbey's name was called by the orderly in the foyer area of the court. Mr Ginbey did not appear. Accordingly, I made the following orders, allowing Mr Ginbey one further opportunity to appear and be heard in relation to the proposed orders:
1.The matter is adjourned to a special appointment on 15 June 2023 at 2.15pm at which, in the absence of Mr Howard John Ginbey complying with the court orders made to date and appearing, the court will consider whether the court on its own motion should:
(a)order that the grant of probate in the estate of Assunta Maria Nesci made to Howard John Ginbey on 17 August 2020 be revoked;
(b)order Howard John Ginbey to deliver to the probate registry of this court the original grant of probate for cancellation by 22 June 2023;
(c)order Howard John Ginbey to file and serve on the solicitors for Mr Sorgiovanni an affidavit describing his administration of the estate and identifying estate assets and all papers, documents, accounts, receipts or other documents related to estate assets and liabilities by 29 June 2023;
(d)order Howard John Ginbey to appear before a registrar of this court on a date to be fixed for examination on oath or affirmation by or at the instance of the administrator to answer questions about the nature and extent of his administration and the location of assets and liabilities of the estate and documents relating to them.
(e)order Howard John Ginbey to transfer any estate assets and liabilities to any newly appointed estate administrators;
(f)make orders as to costs, including that Howard John Ginbey personally pay Mr Sorgiovanni's costs of and incidental to the passing of the accounts proceedings and any hearings before the court and/or that Howard John Ginbey bear his own costs of and incidental to the passing of the accounts proceedings and any hearings before the court;
(g)grant any such person as the court considers appropriate letters of administration with will annexed;
(h)such other orders as the court considers appropriate.
2.Mr Vincenzo Sorgiovanni has leave to replace 'Annexure E' of the affidavit of Vincenzo Sorgiovanni sworn 12 September 2022 and annexed to the second affidavit of Vincenzo Sorgiovanni sworn 12 January 2023 with the correct 'Rule 9b State of Assets and Liabilities'.
The orders made on 1 June 2023 were sent to Mr Ginbey by post to the address in the grant of probate and by email to the email address used in Mr Ginbey's communication with the court on 14 November 2022.
On 9 June 2023, Mr Sorgiovanni and Ms Nesci-Lawrence filed a joint affidavit in support of their application to obtain a grant of letters of administration with will annexed and deposed as follows:
(a)each has attained the full age of 18 years;
(b)details of Maria's last known address and the date of her will;
(c)that probate was previously granted to Mr Howard John Ginbey, and the details of that grant of probate;
(d)that to the best of their knowledge and belief Maria's will and her death certificate were previously lodged with the court by Mr Ginbey;
(e)that Maria had attained the full age of 18 years at the date of her will and was widowed at the date of her will and widowed at the date of her death and did not marry after that date;
(f)by her will, Maria appointed Mr Ginbey to be the executor. However, in the event that Mr Ginbey was unable or unwilling to be the exectutor and trustee, Maria appointed Mr Sorgiovanni and Ms Nesci-Lawrence jointly to be the executors and trustees;
(g)details of the witnesses to the will;
(h)that they have discussed their application with the beneficiaries of Maria's estate and they understand that none of the beneficiaries have an intention to make an application for a grant of letters of administration;
(i)that Maria left estate within Western Australia; and
(j)that if they obtain a grant of letters of administration with will annexed for the estate of Maria that each will administer the estate according to law.
A copy of the grant of probate to Mr Ginbey, Maria's will and the statement of assets and liabilities previously filed by Mr Ginbey pursuant to r 9B of the NCP Rules were annexed. The grant of probate details the date of Maria's death.
The matter next came before me on 15 June 2023 at 2.15 pm. Again, there was no appearance at that time by Mr Ginbey. Mr Ginbey's name was called by the orderly in the foyer area of the court. Mr Ginbey did not appear.

Legal Principles

The authorities establish that the court has a broad jurisdiction in relation to probate matters under s 18 of the Supreme Court Act 1935 (WA), including the power to revoke a grant of probate to an executor, which results in the removal of that executor, on its own motion.[1]
[1] Estate of Erminia Agnes Rogers v Rogers [2009] WASC 358 [22], [31] (Estate of Rogers v Rogers); Suzanne Dale Smith by her next friend the Public Trustee v Marion Kathryn Partridge as executor of the Estate of Thomas Smith [2018] WASC 128 [25] (Smith v Partridge); In The Estate Of Diane Carol Collison v Collison [2023] WASC 32 [51].
The nature of the Court's jurisdiction under s 18 was dealt with by his Honour, E M Heenan J in Estate of Rogers v Rogers.[2] I have not repeated those principles in detail here, but it is sufficient for present purposes to record that there is a wide variety of circumstances under which revocation of a grant of probate or letters of administration may be made. Broadly, these may be divided into two categories. First, where it is discovered that there is some error and secondly (and of relevance for present purposes) where revocation is made necessary or desirable to ensure the due administration of the estate. The ultimate purpose of the Court's power of revocation is to ensure the due and proper administration of the estate.
[2] Estate of Rogers v Rogers [2009] WASC 358 [25]; Smith v Partridge [26].

One of the instances where revocation may be appropriate is where the grantee has persistently neglected or refused to carry out due administration of the estate and where the administrator has failed to pass accounts as required by the Administration Act.[3]
[3] Estate of Rogers v Rogers [2009] WASC 358 [25] - [29].
The removal of a grant of probate is a 'very major step', especially where the removal is of a representative chosen by the testator as the person considered suitable to perform the task of administration and the person most desired by the testator to perform that role.[4]
[4] Estate of Rogers v Rogers [2009] WASC 358 [32]; In The Estate Of Diane Carol Collison v Collison [2023] WASC 32 [62] - [64].
Section 43(1) of the Administration Act provides that 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; and
(c)when required to do so by the Court, deliver up the grant of probate or administration to the Court.
The manner in which that jurisdiction is to be exercised is specified in r 37 of the NCP Rules. The NCP Rules provide that the accounts should be filed by the personal representative within 12 months after the grant is made, or in such further time as a Judge or Registrar allows. It has been recognised that this period is very flexible and is usually extended.[5] Further, it has been observed that the obligation of a personal representative to file accounts in accordance with the Administration Act is not always insisted upon and is intended to be dealt with privately as between the executor and the beneficiaries. When it occurs, it is often done upon the demand of an aggrieved party or at the request of the personal representative.[6]
[5] In re Ellis v Ellis [2015] WASC 77 [99].
[6] In re Ellis v Ellis [2015] WASC 77 [100].
Nonetheless, as explained by E M Heenan J in In re Ellis v Ellis,[7] the Court's power to require a personal representative to file and pass accounts is:
…an important part of the court's armoury of powers to enforce the due administration of estates which may be exercised whenever and as often as the requirements of due administration dictate.
[7] In re Ellis v Ellis [2015] WASC 77 [101].

Disposition

I am satisfied in all of the circumstances that it is appropriate for the grant of probate made to Mr Ginbey on 17 August 2020 to be revoked.
It has been over 3 years since Maria died, and 2 years and 10 months since Mr Ginbey was granted probate in Maria's estate. It is not clear what steps, if any, Mr Ginbey has taken to administer the estate. The accounts have not been passed and Mr Ginbey has not made any distributions of the estate. No explanation has been provided by Mr Ginbey.
Aside from one email response to Mr Sorgiovanni dated 12 July 2021 and one email to the solicitors dated 5 August 2022, Mr Ginbey has not provided any substantive response to Mr Sorgiovanni's (or his solicitor's) requests for an update on Mr Ginbey's progress.
Aside from one email to the court dated 14 November 2022 seeking an extension of time within which to pass the accounts, Mr Ginbey has failed to comply with various orders made by the court and has failed to appear at the hearings held on 1 June 2023 and 15 June 2023. Correspondence and court orders have been sent by the court to Mr Ginbey by post using the address contained in the grant of probate and by email to the email address contained in annexures attached to the various affidavits of Mr Sorgiovanni and by email to the email address Mr Ginbey used to communicate with the court on 14 November 2022.
I therefore do not have confidence that Mr Ginbey will take steps to ensure the proper administration of Maria's estate. In the circumstances there is a risk (although I cannot quantify it with any precision) that the value of any distribution from the estate may suffer if the matter continues and delays continue. I also note that many of the beneficiaries are elderly and therefore it is appropriate that the estate be administered without any further delay. I also accept that the continuing delays are causing distress to Maria's relatives.
In order to ensure the due administration of Maria's estate, I therefore consider it appropriate that the grant of probate to Mr Ginbey be revoked.
I have also considered whether it is appropriate for me to make an order granting Mr Sorgiovanni and Ms Nesci-Lawrence probate or letters of administration with the will annexed under the Administration Act. In all the circumstances I have concluded that it is appropriate to make an order grating probate to Mr Sorgiovanni and Ms Nesci-Lawrence. In making this decision I have had regard to the fact that Mr Sorgiovanni and Ms Nesci-Lawrence are named in Maria's will as the substitute executors and trustees if Mr Ginbey is unable or unwilling to be the executor and trustee. Mr Sorgiovanni and Ms Nesci-Lawrence have also filed an affidavit in these proceedings addressing the matters referred to in r 8 of the NCP Rules. In particular, Mr Sorgiovanni and Ms Nesci-Lawrence each depose that if granted letters of administration with will annexed, each will administer the estate according to law. Mr Sorgiovanni and Ms Nesci-Lawrence also depose that it is their understanding that none of the other beneficiaries have an intention to make an application for a grant of letters of administration. As each are named as the joint substitute executors, I consider it appropriate that a grant of probate (as opposed to letters of administration with will annexed) be made.
I have also considered what are the appropriate costs orders in the present case. Mr Sorgiovanni and Ms Nesci-Lawrence seek orders that their costs of and incidental to the passing of accounts proceedings be paid out of the estate. Mr Sorgiovanni and Ms Nesci-Lawrence also seek orders that Mr Ginbey bear his own costs (if any) of the passing of accounts proceedings and that he not be entitled to an indemnity from the estate. I consider these to be appropriate orders given the costs incurred by Mr Sorgiovanni and Ms Nesci-Lawrence (and the need for their involvement in the first place) has been as a consequence of Mr Ginbey's failure as executor to pass accounts or otherwise deal with the estate.
Mr Sorgiovanni and Ms Nesci-Lawrence also seek orders that Mr Ginbey do personally pay the costs of Mr Sorgiovanni and Ms Nesci-Lawrence of and incidental to the passing of accounts proceedings on a party-party basis to the estate. In this regard counsel for Mr Sorgiovanni and Ms Nesci-Lawrence submitted that Mr Ginbey, who is a solicitor, has had more than sufficient time to deal with the estate, which is not overly complicated, and had repeatedly indicated to Mr Sorgiovanni that he would do so, before communications ceased. Counsel submitted that the estate should not bear the costs. I am not prepared to make this order on the basis of the evidence and information before me at this time. Whilst I accept the matters referred to by counsel, unfortunately, Mr Ginbey has generally failed to communicate with the court aside from one communication in November 2022 requesting an adjournment. As a consequence, I have no information before me as to why there has been a lack of communication, why the accounts have not been passed and/or why the estate has otherwise not been administered. I have no information before me as to whether this is, for example, due to illness or incapacity on the part of Mr Ginbey or some other reason which may have a bearing on my decision in relation to costs. I also note that whilst Mr Ginbey is admitted on the role of practitioners and has practiced as a solicitor in the past, he does not currently hold a practising certificate. Accordingly, whilst I acknowledge the costs incurred by Mr Sorgiovanni and Ms Nesci-Lawrence will therefore come from the estate, I am not prepared to order that Mr Ginbey personally pay those costs to the estate as sought.

Orders

At the hearing on 15 June 2023, I made the following orders to facilitate the above:
1.The grant of probate in the estate of Assunta Maria Nesci made to Howard John Ginbey on 17 August 2020 be revoked.
2.By 22 June 2023 Howard John Ginbey deliver to the probate registry of this court the original grant of probate for cancellation.
3.The Registrar be directed to issue a grant of probate to Mr Vincenzo Sorgiovanni and Ms Lucetta Francina Nesci-Lawrence as the jointly named substitute executors in the will of Assunta Maria Nesci, dated 1 September 2015 in application PRO 4426 of 2020.
4.By 29 June 2023 Howard John Ginbey file and serve on the solicitors for Mr Vincenzo Sorgiovanni and Ms Lucetta Francina Nesci-Lawrence an affidavit describing his administration of the estate and identifying estate assets and all papers, documents, accounts, receipts or other documents related to estate assets and liabilities.
5.Howard John Ginbey appear before a Registrar of this court on a date to be fixed for examination on oath or affirmation by or at the instance of the administrator to answer questions about the nature and extent of his administration and the location of assets and liabilities of the estate and documents relating to them.
6.By 29 June 2023 Howard John Ginbey transfer any estate assets and liabilities to the newly appointed executors, Mr Vincenzo Sorgiovanni and Ms Lucetta Francina Nesci-Lawrence.
7.The costs of Mr Vincenzo Sorgiovanni and Ms Lucetta Francina Nesci-Lawrence of and incidental to the passing of accounts proceedings including the costs of the appearances on 1 June 2023 and 15 June 2023 be paid by the estate on a trustee basis.
8.Howard John Ginbey do bear his own costs of and incidental to the passing of accounts proceedings and complying with these orders and not be entitled to an indemnity from the estate for such costs.
9.Service of these orders on Howard John Ginbey be way of ordinary post to [address redacted] and by email to [address redacted].
10.There be liberty to be apply.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AA
Associate to the Judge
16 JUNE 2023