In the Matter of the Estate of Linda Valerie Kidd (Dec'd) - [2023] WASC 394

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   IN THE MATTER OF THE ESTATE OF LINDA VALERIE KIDD (Dec'd) [2023] WASC 394
CORAM:   SEAWARD J
HEARD:   10 OCTOBER 2023
DELIVERED          :   10 OCTOBER 2023
FILE NO/S:   PRO 6114 of 2014
BETWEEN:   DAVID ALAN EARNSHAW
Executor
TIMOTHY JAMES BAIRD
Interested Party

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 - 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
Interested Party	:	A Bower

Solicitors:

Executor	:	Earnshaw & Associates Lawyers
Interested Party	:	Solomon Hollett Lawyers

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

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:

(This judgment was delivered extemporaneously on 10 October 2023 and has been edited from the transcript).

Introduction

This is a matter that comes 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 David Alan Earnshaw, as the executor of the estate of Linda Valerie Kidd, late of 6805 Stoneville Road, Stoneville, Western Australia, has neglected to attend to the passing of accounts.

Factual background

On 6 May 2013, Ms Kidd died leaving a will appointing Mr David Alan Earnshaw as her executor. Probate was granted to Mr Earnshaw on 10 December 2014.
At the time of the grant of probate, Mr Earnshaw practiced as a solicitor. However, as at today's date, Mr Earnshaw does not hold a current practising certificate.
The statement of assets and liabilities filed by Mr Earnshaw in his application for probate in 2014 states that the total net assets of Ms Kidd's estate amounted to $1,099,403.85.
In her will, Ms Kidd made a number of specific bequests to family members totalling $100,000. Ms Kidd also made a number of bequests to charitable organisations totalling $30,000. The residue of her estate (after the payment of funeral expenses and debts) was left to her son, Timothy James Baird.
Unfortunately, Mr Earnshaw does not appear to have completed the administration of Ms Kidd's estate.
On 20 April 2023, solicitors acting for Mr Baird wrote to the Supreme Court requesting that notice be given to Mr Earnshaw pursuant to s 43(1)(b) of the Administration Act and r 37 of the Non‑Contentious Probate Rules 1967 (NCP Rules) directing Mr Earnshaw to pass accounts.
In that letter, the solicitors explain that the estate is not large or complex, and despite probate being granted in 2014, it has not yet been fully administered. The letter explains that Mr Baird has been unable to ascertain the current status of Mr Earnshaw's administration of the estate, or when it might be finalised. In this regard, the letter attaches a number of pieces of correspondence:
(1)An email from Mr Earnshaw to Mr Baird dated 12 August 2020, in which Mr Earnshaw apologises for the delay in winding up the estate and indicates that he expects to be in a position to do so within the next six weeks.
(2)A letter from Mr Baird's former lawyers to Mr Earnshaw dated 15 October 2021, referring to the email dated 12 August 2020 and noting that the administration has still not been finalised. The letter requests that Mr Earnshaw provides details of the assets still to be administered, a statement of distributions made to the beneficiaries to date and the anticipated timeframe to finalise the administration of the estate.
(3)A further letter from Mr Baird's former lawyers to Mr Earnshaw dated 20 January 2022. That letter refers to an email from Mr Earnshaw to Mr Baird dated 28 October 2021, seemingly responding to the solicitor's letter dated 15 October 2021. The letter states that in that email Mr Earnshaw indicated that he was aiming to finalise the administration of the estate by the end of 2021. The letter from the former solicitors notes that this has not occurred and indicates that if the administration is not finalised within 45 days, they anticipate being instructed to apply to have Mr Earnshaw removed as executor.
(4)A letter from Mr Baird's current lawyers to Mr Earnshaw dated 3 April 2023, referring to the above past correspondence and requesting full disclosure of the administration conducted to date, what steps are required to be taken to finalise the administration and an estimate of when those steps are expected to be finalised. The letter states that absent a satisfactory response by 17 April 2023, the solicitors have instructions to request the court issue a notice to pass accounts without further notice.
By notice dated 27 April 2023, Registrar Griffin gave notice to Mr Earnshaw to pass the accounts of Ms Kidd's estate in accordance with r 37 of the NCP Rules. That notice:
(1)required Mr Earnshaw 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 attaching all supporting vouchers, and file the same by 25 May 2023;
(2)required Mr Earnshaw to file and serve the accounts on the beneficiaries by 1 June 2023;
(3)required any objections to the accounts to be filed by 15 June 2023; and
(4)noted if there were no objections to the accounts, they would be examined by the Registrar on the papers, or if there were objections, an appointment to have the accounts passed would be listed in due course.
The solicitors for Mr Baird wrote to the court again by letter dated 26 June 2023, noting that his client had not been served with the accounts in accordance with the notice of Registrar Griffin dated 27 April 2023. The solicitors requested that the court issue a notice to Mr Earnshaw pursuant to s 44(1) of the Administration Act.
Consequently, the matter was referred to the Acting Principal Registrar and on 31 July 2023, Acting Principal Registrar Whitbread gave notice to Mr Earnshaw pursuant to s 44(1) of the Administration Act in the following terms:
1.On 10 December 2014, probate of the estate of Linda Valerie Kidd, deceased, late of 6805 Stoneville Road, Stoneville, Western Australia, was made to you, Mr David Alan Earnshaw. You have neglected to file an inventory to pass accounts within one month after the expiration of the period fixed by the Non‑contentious Probate Rules 1967 (WA).
2.On 27 April 2023, a Registrar caused a notice to be issued to you to pass the accounts of the estate of Linda Valerie Kidd, deceased, late of 6805 Stoneville Road, Stoneville, Western Australia, deceased, in accordance with the Non-contentious Probate Rules 1967 (WA) Rule 37 by 1 June 2023.
3.One month has passed since the expiration of the period fixed by the Registrar (being 1 June 2023) 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 immediately attend to pass the accounts. 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.
Mr Earnshaw did not file any accounts in response to this notice.
The matter was then referred to my chambers on the report of the Principal Registrar and on 22 September 2023, I made the following orders:
UPON
Probate of the estate of Linda Valerie Kidd, deceased, late of 6805 Stoneville Road, Stoneville, Western Australia being made to David Alan Earnshaw on 10 December 2014.
AND UPON
1. The failure of David Alan Earnshaw to file an inventory to pass accounts within one month after the expiration of the period fixed by the Non-contentious Probate Rules 1967 (WA).
2.Notice being given by a Registrar on 27 April 2023 to David Alan Earnshaw to pass the accounts of the estate of Linda Valerie Kidd, deceased, late of 6805 Stoneville Road, Stoneville, Western Australia in accordance with r 37 of the Non-contentious Probate Rules 1967 (WA) by 1 June 2023.
3. The failure of David Alan Earnshaw to pass accounts within one month since the expiration of the period fixed by the Registrar on 27 April 2023.
4. Notice being given by A/Principal Registrar Whitbread pursuant to s 44(1) of the Administration Act 1903 (WA) to David Alan Earnshaw that he has neglected to pass accounts within the period prescribed and directing David Alan Earnshaw to immediately attend to pass the accounts.
5.The failure of David Alan Earnshaw to date to pass accounts of the estate of Linda Valerie Kidd, deceased, late of 6805 Stoneville Road, Stoneville, Western Australia.
6. The failure of David Alan Earnshaw to date to pass accounts being referred to a Judge of the Supreme Court.
IT IS ORDERED THAT
1. The matter be listed for hearing on 10 October 2023 at 9:30 am at which, in the absence of David Alan Earnshaw 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 Linda Valerie Kidd, deceased, late of 6805 Stoneville Road, Stoneville, Western Australia be revoked;
(b) order David Alan Earnshaw to deliver to the probate registry of this court the original grant of probate for cancellation by 17 October 2023;
(c) order David Alan Earnshaw to file and serve on the solicitors for Mr Timothy James Baird 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 24 October 2023;
(d) order David Alan Earnshaw 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 David Alan Earnshaw to transfer any estate assets and liabilities to any newly appointed estate administrators;
(f) make orders as to costs, including that David Alan Earnshaw personally pay any costs of and incidental to the passing of the accounts proceedings and any hearings before the court and/or that David Alan Earnshaw bear his own costs of and incidental to the passing of the accounts proceedings and any hearings before the court;
(g) grant any such other person as the court considers appropriate letters of administration with will annexed; and
(h) make such other orders as the court considers appropriate.
The orders made on 22 September 2023 were sent to Mr Earnshaw by post to the address the court has on file for Mr Earnshaw and also by email to three email addresses that the court was able to identify from the documents on the court file.
That brings me to the hearing today. There was no appearance by Mr Earnshaw at the appointed time for the hearing. Mr Earnshaw's name was called by the orderly in the foyer area of the court. Mr Earnshaw 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 [2018] WASC 128 [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:
(1)collect and get in the real and personal estate of the deceased and administer it according to law;
(2)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
(3)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 Earnshaw on 10 December 2014 to be revoked.
It has been over 10 years since Ms Kidd died, and eight years and nine months since Mr Earnshaw was granted probate in Ms Kidd's estate. This delay in administering the estate is extraordinary. Based on the statement of assets and liabilities filed with the application for the grant of probate, Ms Kidd's estate is not complex and there is no obvious reason why it has not been administered in the almost nine years since Mr Earnshaw was granted probate.
It is not clear what steps, if any, Mr Earnshaw has taken to administer the estate. The accounts have not been passed and no explanation has been provided by Mr Earnshaw.
Aside from one email response to Mr Baird dated 12 August 2020 and one email to the former solicitors dated 28 October 2021, it appears that Mr Earnshaw has not provided any substantive response to Mr Baird or his solicitors in relation to their requests for an update on Mr Earnshaw's progress since 2020.
Mr Earnshaw has also failed to comply with the order of Registrar Griffin to pass accounts made on 27 April 2023 pursuant to r 37 of the NCP Rules, and the order to pass accounts issued by Acting Principal Registrar Whitbread on 13 July 2023 issued pursuant to s 44(1) of the Administration Act.
Mr Earnshaw has continued to fail to comply with these orders following the making of my orders on 22 September 2023, and has not appeared today.
In light of these matters, I do not have confidence that Mr Earnshaw will take steps to ensure the proper administration of Ms Kidd's estate. In the circumstances there is a risk (although I cannot presently quantify it with any precision) that the value of any distribution from the estate may suffer if the delays continue.
In order to ensure the proper administration of Ms Kidd's estate, I therefore consider it appropriate that the grant of probate to Mr Earnshaw be revoked and that appropriate orders to facilitate this are made.

Orders

I therefore make the following orders:
(1) The grant of probate in the estate of Linda Valerie Kidd, deceased, late of 6805 Stoneville Road, Stoneville, Western Australia made on 10 December 2014 to David Alan Earnshaw be revoked.
(2) By 17 October 2023 David Alan Earnshaw is to deliver to the probate registry of this court the original grant of probate for cancellation.
(3) By 24 October 2023 David Alan Earnshaw is to file and serve on the solicitors for Mr Timothy James Baird 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.
(4) David Alan Earnshaw is 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.
(5) David Alan Earnshaw is to transfer all estate assets and liabilities to any newly appointed estate administrators upon order of a registrar of this court.
(6)There be liberty to the beneficiary Timothy James Baird to apply for letters of administration in the usual manner.
(7)David Alan Earnshaw 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.
(8)David Alan Earnshaw is to pay Timothy James Baird's costs of and incidental to the passing of accounts proceedings personally. Such costs to be fixed in the amount of $4,478.10.
(9)Service of these orders on David Alan Earnshaw be by way of ordinary post to the postal address provided for service on the court file and by email to the 3 email addresses on the court file.
(10)There be liberty to 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
11 OCTOBER 2023