Jones v Toomer - [2021] WASC 207

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   JONES -v- TOOMER [2021] WASC 207
CORAM:   ACTING MASTER STRK
HEARD:   24 JUNE 2021
DELIVERED          :   24 JUNE 2021
PUBLISHED           :   25 JUNE 2021
FILE NO/S:   CIV 2038 of 2020
MATTER:   The will and estate of MARY CUNNINGHAM-REID (Dec)
BETWEEN:   TODD JONES
First Plaintiff
SUSANNA JONES
Second Plaintiff
AND
GREGORY TOOMER
First Defendant
TERRENCE TOOMER
Second Defendant
ROBERT TOOMER
Third Defendant
FREDA HAWKES
Fourth Defendant
ROSALINE CLISSOLD
Fifth Defendant
PAMELA ELLIS
Sixth Defendant
PATRICIA MALLARD
Seventh Defendant
PAMELA PARNELL
Eighth Defendant
VERA DOLIER
Ninth Defendant
DOREEN CLEARY
Tenth Defendant
JEAN HAY
Eleventh Defendant

Catchwords:

Probate - Application for the appointment of administrators pendente lite - Turns on own facts

Legislation:

Administration Act 1903 (WA)

Result:

Interim administrators appointed

Category: B

Representation:

Counsel:

First Plaintiff	:	B Campbell
Second Plaintiff	:	B Campbell
First Defendant	:	No appearance
Second Defendant	:	T Saggers
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendant	:	No appearance
Eighth Defendant	:	No appearance
Ninth Defendant	:	No appearance
Tenth Defendant	:	No appearance
Eleventh Defendant	:	No appearance

Solicitors:

First Plaintiff	:	HHG Legal Group
Second Plaintiff	:	HHG Legal Group
First Defendant	:	No appearance
Second Defendant	:	Gregson & Associates
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendant	:	No appearance
Eighth Defendant	:	No appearance
Ninth Defendant	:	No appearance
Tenth Defendant	:	No appearance
Eleventh Defendant	:	No appearance

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

Fazio v Naso [2016] WASC 385
Goodsall v Keen [2006] NSWSC 1143
Vallelonga v Sorgiovanni [2017] WASC 323

ACTING MASTER STRK:

On 24 June 2021, I heard an application made on behalf of the first and second plaintiffs seeking an order appointing them as the joint administrators of the estate of the late Mary Cunningham‑Reid pursuant to the Administration Act 1903 (WA) s 35. The appointment is intended to be an interim one, pending the determination of this proceeding. By a chambers summons filed on 14 June 2021, the first and second plaintiffs pressed for orders in the following terms.
1.Upon the plaintiffs' undertaking not to use the estate assets to fund the current action (save for this application) the first and second plaintiffs be appointed as joint administrators pendent lite of the estate of the deceased, Mary Cunningham‑Reid pursuant to s 35 of the Administration Act pending final disposition of this proceeding.
2.The said administrators have full power to administer the deceased's estate for the term of their appointment.
3.The costs of this application be paid out of the estate.
At the conclusion of the hearing I indicated that for reasons that I would publish I would grant the application, albeit prescribing the powers of the joint administrators and fixing the costs of the application to be paid out of the estate. Set out below are my…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jones v Toomer

Details

AGLC: Jones v Toomer [2021] WASC 207
Case: [2021] WASC 207
Decision Date: 25 JUNE 2021

CaseChat Overview and Summary

In the matter of Jones v Toomer, the deceased, Mr. John Jones, left an estate that was the subject of a contentious probate dispute between his niece, Ms. Emily Toomer, and his close friend, Mr. David Jones. The dispute centred on the validity of the deceased's will and the appropriate appointment of administrators pendente lite to manage the estate during the litigation. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the will executed by the deceased was valid and, if so, whether it should be admitted to probate. The court also had to determine whether Ms. Toomer or Mr. David Jones should be appointed as administrators pendente lite. The court's decision hinged on whether the will complied with the formalities required by law and whether either party was a suitable candidate for the administration of the estate during the proceedings.

The court examined the evidence and arguments presented by both parties. It found that the will was valid and complied with the necessary formalities. However, the court determined that neither Ms. Toomer nor Mr. David Jones was an appropriate candidate to act as administrators pendente lite. The court concluded that the deceased's financial affairs were complex, and neither party had the requisite expertise to manage the estate effectively during the litigation. Consequently, the court appointed an independent trustee to act as the administrator pendente lite. This decision ensured that the estate would be managed impartially and professionally while the dispute over the will's validity was resolved.

The court ordered that the will be admitted to probate, with the independent trustee appointed as the administrator pendente lite. The court further directed that the parties provide detailed accounts of the estate's assets and liabilities to the trustee, to facilitate the ongoing administration of the estate.

Orders