In the Matter of the Estate of Neil Bayens - [2022] WASC 42

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   In the Matter of the Estate of NEIL BAYENS [2022] WASC 42
CORAM:   SMITH J
HEARD:   28 JANUARY 2022
DELIVERED          :   28 JANUARY 2022
PUBLISHED           :   10 FEBRUARY 2022
FILE NO/S:   PRO 4825 of 2018
BETWEEN:   DEAN ANTHONY BAYENS
Administrator
AND
MARK RAYMOND BAYENS
Applying Administrator

Catchwords:

Probate and administration - Administration Act 1903 (WA) - Where persistent failure by administrator to pass accounts - Hearing by judge on report of registrar - Whether grant of administration should be revoked and a new administrator appointed - No new principle

Legislation:

Administration Act 1903 (WA)
Guardianship and Administration Act 1990 (WA)
Non-Contentious Probate Rules 1967 (WA)

Result:

Grant of administration revoked
New grant of administration issued

Category: B

Representation:

Administrator	:	No appearance
Applying Administrator	:	Mr M R Bayens, by his attorney Mr J J Bayens

Administrator	:	No appearance
Applying Administrator	:	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 administrator of the estate of Neil Bayens (the Estate), Dean Anthony Bayens (Administrator), had neglected to attend to the passing of accounts.
The Administrator was granted letters of administration with the will annexed on 5 September 2018. The Administrator is a beneficiary of the Estate and a son of the deceased. The only other beneficiary of the Estate is the Administrator's brother, Mark Raymond Bayens.
Notice to pass accounts was given to the Administrator on 2 February 2021 by a registrar pursuant to the Non-Contentious Probate Rules 1967 (WA) (the Rules); following a request by the solicitors acting for Mark Bayens requiring him to file the Estate's accounts in the registry in accordance with r 37 of the Rules. In the solicitor's letter to the court, a complaint was made that:
(a)although the statement of assets and liabilities filed with the application by the Administrator for letters of administration indicated that the Estate had net funds at bank of nearly $67,000 and a period of over 28 months had elapsed since the grant, Mark Bayens had only received an amount from the Estate in the order of $7,000;
(b)the primary asset of the Estate, the deceased's former home, was still registered in the name of the deceased;
(c)unopened mail addressed to the Estate had recently been found at the deceased's former home, including a Water Corporation water use and service charge account invoice dated 16 November 2020 for $3114.31, of which $2,899.94 was overdue; and
(d)attempts to contact the Administrator to discuss Mark Bayens' concerns about the administration of the Estate had been unsuccessful.
The notice to pass accounts issued by a registrar, dated 2 February 2021, informed the Administrator that:
(a)he was required to file, by 2 March 2021, up to date accounts and a plan of distribution prepared in accordance with form 4 in the schedule to the Rules, verified by affidavit;
(b)he was required to serve on each of the residuary beneficiaries of the Estate, by 2 March 2021, a copy of the notice, the accounts and a plan of distribution, verified by affidavit; and
(c)an appointment to have the accounts passed would be fixed if notice was received of an intention to object to the passing of the accounts by any person.
No response was received from the Administrator to the notice dated 2 February 2021.
A second notice to pass accounts was issued to the Administrator by a registrar on 31 May 2021. The Registrar directed the Administrator comply with the notice by 29 June 2021. No response was received from the Administrator to this notice.
On 8 October 2021, the Acting Principal Registrar gave notice to the Administrator pursuant to s 44(1) of the Administration Act 1903 (WA) that he had neglected to pass the accounts within the period prescribed. This notice required the Administrator to immediately attend to passing the accounts, and informed him that should he fail to do so, the court may exercise its discretion on its own motion, on the report of a registrar, to revoke the grant of administration. No response was received from the Administrator to this notice.
On 25 November 2021, a notice of hearing before a judge was given by the Acting Principal Registrar to the Administrator. The notice informed the Administrator that at a hearing before a judge at 10.00 am on Wednesday, 15 December 2021, the court would consider whether to remove him as executor and revoke his grant of probate in the Estate and that if he did not attend the hearing, orders may be made in his absence.
On 26 November 2021, an email was received by the Associate to the Principal Registrar from the Administrator in which he stated that:
(a)he had only recently received the document 'dated 12 October 2021', which had been sent to the deceased's former home;
(b)no one had lived at the deceased's former home for over a year and that a previous mail redirection had expired some time ago.
In the email, the Administrator stated his current address but did not provide any information as to whether he intended to attend to the passing of accounts.
Following receipt of this email, an order was made by the Acting Principal Registrar on 7 December 2021 ordering the Administrator to file any affidavits or submissions by Tuesday, 14 December 2021 on which he sought 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 letters of administration. A copy of the order was sent by post and by email to the addresses nominated by the Administrator in his email.
No affidavit or submissions were filed by the Administrator by 14 December 2021.
The Administrator did not appear at the hearing before the court on 15 December 2021.
There having been no appearance by or on behalf of the Administrator, the court made the following orders in the absence of the Administrator on 15 December 2021, and relisted the matter for hearing on 28 January 2022:
1.The administrator is required to file and serve on the other beneficiary to the estate, who is the deceased's child, Mark Raymond Bayens, an affidavit within 28 days of the date of this order setting out the reasons why the grant of administration to him should not be revoked and that he be removed as an administrator, including:
a.the steps he has taken to list the sale of the property at 46 Collick Street, Hilton (the property) and to prepare the property for sale;
b.the steps he has taken to pay the accounts of the estate, including all outstanding utility bills for the property, and distribute the assets of the estate; and
c.provide the details of the estate assets which remain unadministered and under his control and refer to all papers, accounts, receipts or other documents relating to the estate assets.
2.The matter is listed for a further hearing on 28 January 2022 at 10.00am. Unless the steps are taken as required by order 1 of this order, at the hearing the court will consider whether it should on its own motion:
a.revoke the grant of administration without further hearing and remove the administrator;
b.order the administrator to deliver to the registry of this court the original grant of administration for cancellation;
c.make any further orders requiring the administrator to describe his 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 administrator 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 letters of administration.
On 21 January 2022, a notice of motion was filed by Mark Bayens seeking orders that letters of administration in the Estate be granted to him if the grant of letters of administration to the Administrator was revoked.
In support of this application, Mark Bayens filed two affidavits. The first affidavit was sworn by him on 21 January 2022.
In his affidavit, Mark Bayens deposed that:
(a)he wishes to make an application for letters of administration to ensure that the deceased's Estate is properly administered, and he gives an undertaking that if he obtains a grant of letters of administration with the will annexed, he would administer the Estate according to law; and
(b)whilst he has legal capacity, he is unable to deal with the day-to-day management of the deceased's Estate due to his current ill health, but that he would be assisted in this by his son, Jackson Jordan Bayens, to whom he had given his power of attorney; and
(g)he had appointed the offices of Taylor Smart, Lawyers of Level 2, 100 Railway Road, Subiaco as a place at which any notice, summons or other proceedings under the Administration Act 1903 (WA) may be served on him.
Annexed to Mark Bayens' affidavit is:
(a)a copy of the will of the deceased,[1] which provides that there are no special gifts, and the residue of the Estate was given equally to his sons, with a direction that the deceased's former home was to be sold, and after payment of any outstanding debts the remainder (of the Estate) was to be divided equally between his two sons;
(b)a copy of the deceased's death certificate, which records that at the date of the deceased's death, he had two sons, the Administrator and Mark Bayens;
(c)a copy of the statement of assets and liabilities of the Estate, that had been annexed to the Administrator's affidavit and filed with the Administrator's motion for a grant of letters of administration. This statement records that the movable property of the Estate was valued at $80,484.95, and that the value of immovable property was $520,000, being total assets of the Estate of $600,484.95 and total debts of $10,821.80, leaving a net value of the Estate in Western Australia of $589,663.15;
(c)a copy of a letter sent to the Administrator dated 14 January 2022 from solicitors engaged to act on behalf of Mark Bayens giving notice to the Administrator that it was the intention of Mark Bayens to apply for a grant of letters of administration with the will annexed; and
(d)a copy of the enduring power of attorney he made on 7 September 2019 under the Guardianship and Administration Act 1990 (WA), to his son, Jackson Jordan Bayens.
[1] The copy annexed to the affidavit of Mark Raymond Bayens is a copy of the original will in the custody of the court having been filed on behalf of the Administrator when the Administrator made application for a grant of administration on 31 August 2018.
The second affidavit filed by Mark Bayens is an affidavit sworn on 21 January 2022 by his son Jackson Jordan Bayens. In Jackson Bayens' affidavit, he deposed that:
(a)he is a full-time university student, is 25 years of age, and is the lawful son of Mark Bayens;
(b)on 7 September 2019, his father appointed him to be his sole attorney;
(c)he has read his father's affidavit sworn 21 January 2022, and filed in support of his father's application for a grant of letters of administration with the will annexed for the Estate, and gives an undertaking that if his father obtains a grant of letters of administration, he will assist his father in the administration of the Estate, according to law.
On 28 January 2022, Mark Bayens by his attorney, Jackson Bayens, appeared at the hearing, but the Administrator did not.
After considering the report of the Acting Principal Registrar, the notice of motion filed by Mark Bayens, and the affidavits filed in support of his notice of motion, on 28 January 2022, I made an order revoking the grant of administration with the will annexed issued to the Administrator on 5 September 2018 and granted letters of administration with the will annexed in the Estate to Mark Bayens. These orders were as follows:
1.The grant of letters of administration with the will dated 5 July 1999 annexed, of the estate of Neil Bayens, on 5 September 2018 to Dean Anthony Bayens, be and is revoked and cancelled.
2.Dean Anthony Bayens shall, within 10 days of the service of these orders, deliver to the Central Office of the Supreme Court of Western Australia the grant of letters of administration (with the will annexed) dated 5 September 2018.
3.Within 14 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 Neil Bayens to Mark Raymond Bayens of 3 Morton Road, Hamilton Hill, Western Australia, as administrator of the estate of Neil Bayens, a person entitled in distribution of the estate of the deceased.
4.The cost of the application by Mark Raymond Bayens for letters of administration of the estate of the deceased be paid as a cost of administration of the estate.
The reasons why I made this order are as follows.

The grant of administration made on 5 September 2018 should be revoked and a new administrator appointed

The value of the Estate is not modest. It has assets of a reasonably substantial amount.
By s 43(1) 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 Administrator has failed to pass the accounts as required by s 43(1) of the Administration Act.
Pursuant to s 25 and s 32 of the Administration Act, Mark Bayens, as a child of the deceased and beneficiary of the Estate, has a right to apply for administration.
In my opinion, given that the Administrator has not appeared in these proceedings to answer questions about the nature and the extent of the administration of the Estate, the preferable way to ensure the due and proper administration of the Estate (and the interests of the parties beneficially entitled to it) is to revoke the grant of letters of administration with the will annexed to the Administrator, and make an order granting administration of the Estate to Mark Bayens.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EC
Associate to the Honourable Justice Smith
10 FEBRUARY 2022