Kelly v Connell as Executor of the Estate of John Kelly - [2024] WASC 274

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   KELLY -v- CONNELL AS EXECUTOR OF THE ESTATE OF JOHN KELLY [2024] WASC 274
CORAM:   TOTTLE J
HEARD:   25 JUNE 2024
DELIVERED          :   1 AUGUST 2024
FILE NO/S:   CIV 2208 of 2023
BETWEEN:   MITCHELL JOHN KELLY
Plaintiff
AND
PAULA LOUISE CONNELL AS EXECUTOR OF THE ESTATE OF JOHN KELLY
First Defendant
PAULA LOUISE CONNELL
Second Defendant
SUZANNE VIDA KELLY
Third Defendant

Catchwords:

Administration of estates - Trusts - s 89 Trustees Act 1962 (WA) - Distinction between roles of executor and trustee - Interim distribution of estate in administration phase - Whether interim distribution is expedient in the management or administration of the trust - Whether interim distribution is in the interests of the trust generally - Interim distribution not expedient in the management or administration of property vested in executor or trust generally

Administration of estates - Trusts - Inherent supervisory jurisdiction - Application for interim distribution of estate to beneficiary - Consideration of inherent supervisory jurisdiction - No proper circumstances for making interim distribution

Legislation:

Family Provision Act 1972 (WA)
Trustees Act 1925 (NSW)
Trustees Act 1962 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	CM Hershowitz
First Defendant	:	MM Petriwskyj
Second Defendant	:	K Woods
Third Defendant	:	SR Pack

Solicitors:

Plaintiff	:	Kitto & Kitto Barristers And Solicitors
First Defendant	:	Culshaw Miller Lawyers
Second Defendant	:	Lark Lawyers
Third Defendant	:	Kershaw Legal

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

Blenkinsop v Herbert [2017] WASCA 87
Brown v Milson [2012] WASC 36
Cann v Saleeba [2014] WASC 299
Commissioner of Stamp Duties (Queensland) v Livingston (1964) 112 CLR 12
Cornell v Cornell [2015] WASC 43
Fremantle Lawyers Pty Ltd v Sarich [2019] WASCA 48
Gerarchi v Gerarchi [2023] WASC 242
McFarlane v Jefferry Crondon Smith [2023] WASC 336
Mullins-Trnovsky v Adams [2014] SASC 116; (2014) 121 SASR 155
Riddle v Riddle [1952] HCA 12; (1952) 85 CLR 202

TOTTLE J:

Overview

The plaintiff is the son of the late John Charles Kelly (the deceased) who died on 6 April 2023. By a will made on 3 March 2023 the deceased appointed the first defendant as the executor of the will and the trustee of the trusts created pursuant to its terms. The first defendant is the deceased's granddaughter. The third defendant is the deceased's daughter and the plaintiff's sister.
Probate was granted to the first defendant on 19 July 2023.
The principal provisions of the will were pecuniary legacies to grandchildren (amounting in aggregate to $935,000), a gift of shares to the second defendant and a gift of the residuary estate to the first defendant to hold on trust for the plaintiff and the third defendant in equal shares.
The plaintiff has applied for an order under the Family Provision Act 1972 (WA) that the deceased's will be varied by making provision for a specific bequest in his favour of $2,850,000. By a chambers summons issued in these proceedings the plaintiff has applied for an order 'pursuant to s 89 Trustees Act 1962 (WA) (or the court's inherent jurisdiction in relation to trustees) that the first defendant is empowered, has the authority to do and is directed to pay forthwith to the plaintiff the sum of $200,000 (or such other amount as the court sees fit)'.
In her capacity as executrix, the first defendant adopted a neutral position in relation to the application, in her capacity as a beneficiary under the will, that is, as the second defendant, she opposed the application, as did the third defendant.
The estate is in the administration phase. The estimated net value of the estate is $3,588,562. After payment of the pecuniary legacies and the transfer of shares to the second defendant, the estimated net value of the residuary estate is $2,480,000 less the costs and expenses of administering the estate (including the costs of defending the present proceedings).
I have concluded that the relief sought by the plaintiff cannot be sustained either by reference to s 89 of the Trustees Act or the inherent jurisdiction of the court.

The evidence

In support of the application the plaintiff relies on three affidavits, two affirmed by him and one sworn by the first defendant.[1] The salient features of the plaintiff's affidavit evidence are as follows: he is 57 years of age and lives in northern New South Wales, he suffered a brain injury in 2002 as a result of which he has been unable to work, his sole source of income is a disability pension, he is homeless and lives in his car and he requires funds to enable him to obtain secure accommodation, to obtain medical treatment for various conditions and to pay the disbursements that he anticipates will be incurred in the course of the present proceedings. The first defendant's affidavit is the source of the information about the estate set out in the overview.
[1] Affidavits of Michael John Kelly affirmed 20 October 2023 and 16 April 2024 and affidavit of Paula Louise Connell sworn 6 February 2024.

Relevant statutory provision

Section 89 of the Trustees Act relevantly states:
(1)Where in the opinion of the Court any sale, lease, mortgage, surrender, release or other disposition, or any purchase, investment, acquisition, retention, expenditure or other transaction is expedient in the management or administration of any property vested in a trustee, or would be in the best interests of the persons, or the majority of the persons, beneficially interested under the trust, but it is inexpedient or difficult or impracticable to effect the disposition or transaction without the assistance of the Court, or it or they cannot be effected by reason of the absence of any power for that purpose vested in the trustee by the trust instrument (if any) or by law, the Court may by order confer upon the trustee, either generally or in any particular instance, the necessary power for the purpose, on such terms, and subject to such provisions and conditions (if any) as the Court may think fit.
(2)…
(3)…
(4)An application to the Court under this section may be made by the trustees, or by any of them, or by any person beneficially interested under the trust.
Section 89 of the Trustees Act must be read with the definition of the term trust in s 6(1) which relevantly states:
(1)In this Act, unless the context otherwise requires:
trust does not include the duties to an estate conveyed by way of mortgage, but with that exception trust extends to implied and constructive trusts, and to cases where the trustee has a beneficial interest in the trust property, and to the duties incidental to the office of a personal representative; and trustee has a corresponding meaning and includes a trustee corporation and every other corporation in which property subject to a trust is vested and every person who immediately before the commencement of this Act was a trustee of the settlement or in any way a trustee under the Settled Land Act of 1892 and, where the context admits includes a personal representative; and new trustee includes an additional trustee.
Section 7A of the Family Provision Act provides the court may make an interim order in favour of a claimant for provision who was totally or partially dependent on a deceased immediately before the deceased's death.

An outline of opposing arguments

The plaintiff contended s 89 applies to executors of deceased estates. He contended he satisfied the jurisdictional requirements because (i) his dire circumstances and the absence of any real risk that the other beneficiaries' entitlements would be affected by an interim distribution of $150,000 meant such a distribution would be expedient in the circumstances and (ii) it was inexpedient to make the distribution without the assistance of the court because of 'the prohibition against distributing estate assets prior to the determination of the [plaintiff's claim] and the absence of consent from all the beneficiaries to an interim distribution'. The plaintiff did not contend that an order for an interim distribution would be 'in the best interests of the persons, or the majority of the persons, beneficially interested under the trust'.
In the alternative, the plaintiff contended the power to order an interim distribution was found in the court's inherent jurisdiction and relied on the decision of Master Sanderson in Cann v Saleeba,[2] in which the learned Master held 'the general supervisory capacity of the court was sufficiently wide to allow an order for interim distribution from an estate to be made in favour of a beneficiary in proper circumstances'.[3]
[2] Cann v Saleeba [2014] WASC 299.
[3] Cann v Saleeba [22].
The second defendant and third defendant filed separate submissions but there was a substantial overlap in their content. The combined effect of the defendants' submissions may be summarised as follows:
(a)In his capacity as a beneficiary under the deceased's will the plaintiff has a right to have the deceased's estate administered in accordance with the executor's duties but has no beneficial interest in the estate.
(b)The residuary estate does not come into existence until the administration of the estate is complete.
(c)Section 89 of the Trustees Act is not capable of operating because until the administration is complete there is no property vested in a trustee in which a person, including the plaintiff, may have a beneficial interest.
(d)The extended definitions of 'trust' and 'trustee' in s 6(1) do not apply because there are matters of context in s 89 that 'otherwise require'. Those matters of context are, the requirement in s 89(1) for property vested in a trustee, and the requirement in s 89(4) for an applicant who is either the trustee or 'a person beneficially interested under the trust'.
(e)If the extended definition were to apply the reference to 'trust' in s 89(1) must refer to 'the duties incidental to the office of a personal representative' but those duties would not create a beneficial interest in the estate on the part of the plaintiff.
(f)Alternatively, if s 89(1) does apply, the interim distribution is not expedient, advantageous or desirable in the management or administration of property the third defendant holds on behalf of the estate and, relatedly, it is not in the interest of the trust generally as opposed to being in the plaintiff's interest.
(g)The circumstances of this case do not disclose a need for the exercise of any aspect of the court's inherent jurisdiction.
In answer to the defendants' contentions in respect of the limits on the scope of the operation of s 89(1), the plaintiff points to decisions of this court in which s 89 has been invoked to confer powers on executors. Further, the plaintiff contended his position is supported by the decision of the High Court in Riddle v Riddle.[4] The plaintiff contended it would be absurd if s 89 applied in some factual circumstances but not in others.
[4] Riddle v Riddle [1952] HCA 12; (1952) 85 CLR 202.

Consideration and disposition

The plaintiff was not totally or partially dependent on the deceased immediately before the deceased's death and is unable to invoke s 7A of the Family Provision Act.
There are similarities between the role played by an executor of a deceased estate and the role of a trustee but they are distinct offices that cannot be equated with each other. In Jacobs' Law of Trusts in Australia,[5] the distinction is explained as follows:
The origin of the offices of trustee and executor are quite different, but in modem times, largely as the result of statute, the two offices have a greater similarity than before. An executor, like a trustee, is in a fiduciary relation with the beneficiary and the essential elements of a trust are all present in executorship. However, although there are great similarities between the two offices, it is not possible to identify the position of an executor with that of a trustee. Their respective powers and duties differ in important respects. The principal duties of an executor are to get in the assets of the deceased, to pay debts, to pay the legacies given by the will, and to distribute the assets. If a testator appoints the same person as executor and trustee, which is usual nowadays, then that person acts as executor when performing executorial duties, and thereafter while continuing to hold the property is a trustee. However, if called upon at any future time to deal with assets in the estate which may be subsequently discovered, the person, although a trustee in respect of the balance of the property, will take the new assets as executor. Thus, the same person may be both executor and trustee in respect of different assets in the same estate. Further, if the executor carries out an instruction in the will to set aside a fund and hold it on trust for certain beneficiaries, he or she will become a trustee in respect of that property. An important result of this is that the subject matter of that fund will thereupon cease to be part of the general estate of the testator, and therefore if there is any loss to the subject matter of the fund, that loss will fall on the beneficiaries of the fund, and not upon any other beneficiaries in the testator's estate. This is part of the principle that an executor on assenting to a legacy holds the subject matter of the legacy as trustee for the legatee.
An executor who has performed all executorial functions may become a trustee by merely continuing to hold property. When the executor becomes a trustee of ascertained property, the beneficiaries then become owners of equitable interests in that property. Thus a beneficiary under a will does not, by reason of the will alone, obtain any title, legal or equitable, to any asset forming part of the testator's estate. When a beneficiary does obtain such a title, it is obtained as a result of the administration of the estate of the testator according to law and in accordance with the dispositions of the will.
…
… In practice it is not easy to determine exactly when a person ceases to act as executor and commenced to hold the property as trustee. The test is clear – have the person's executorial duties in respect of that property ended; but the difficulty in practice is to ascertain precisely whether that is the case … (footnotes omitted)
[5] Jacobs' Law of Trusts in Australia 8^th Edition (2016), [2-40] and [2.44]; see also the helpful discussion in McFarlane v Jefferry Crondon Smith [2023] WASC 336 [40] ‑ [52] (Strk J).
Riddle v Riddle involved an application by the trustees of a testamentary trust under s 81 of the Trustees Act 1925 (NSW), the analogue of s 89 of Trustees Act (WA). The application related to the investment powers of the trustees. Probate had been granted in 1939 to a corporate entity and, by the time the application was made in 1951, the administration phase had been completed. In fact, the original corporate trustee had retired and had been replaced by new trustees who were the applicants. It does not appear that the original grant to the corporate trustee was revoked and a new grant made to the applicants. Riddle is distinguishable on its facts because the applicants in that case were persons in whom the trust property had vested. The decision does not assist the plaintiff.
In Commissioner of Stamp Duties (Queensland) v Livingston,[6] Viscount Radcliffe delivering the judgment of the Privy Council, explained that a residuary estate cannot come into existence until the administration is complete. In the course of a lengthy consideration of the nature of the interests held in a deceased estate his Lordship said:[7]
A second line of criticism has occasionally been expressed to the effect that it is incredible that Lord Herschell should have intended by his proposition to deny to a residuary legatee all beneficial interest in the assets of an unadministered estate. Where, it is asked, is the beneficial interest in those assets during the period of administration? It is not, ex hypothesi, in the executor: where else can it be but in the residuary legatee? This dilemma is founded on a fallacy, for it assumes mistakenly that for all purposes and at every moment of time the law requires the separate existence of two different kinds of estate or interest in property, the legal and the equitable. There is no need to make this assumption. When the whole right of property is in a person, as it is in an executor, there is no need to distinguish between the legal and equitable interest in that property, any more than there is for the property of a full beneficial owner. What matters is that the Court will control the executor in the use of his rights over assets that come to him in that capacity; but it will do it by the enforcement of remedies which do not involve the admission or recognition of equitable rights of property in those assets. Equity in fact calls into existence and protects equitable rights and interests in property only where their recognition has been found to be required in order to give effect to its doctrines.
Criticisms of this kind arise from the fact that the terminology of our legal system has not produced a sufficient variety of words to represent the various meanings which can be conveyed by the words 'interest' and 'property'. Thus propositions are advanced or rebutted by the employment of terms that have not in themselves a common basis of definition. For instance, there are two passages quoted by the learned Chief Justice in his dissenting judgment in this case which illustrate the confusion. There is the remark of Jordan C.J. in McOaughey's Case, 'The idea that beneficiaries in an unadministered or partially administered estate have no beneficial interest in the items which go to make up the estate is repugnant to elementary and fundamental principles of equity'. If 'by beneficial interest in the items' it is intended to suggest that such beneficiaries have any property right at all in any of those items, the proposition cannot be accepted as either elementary or fundamental. It is, as has been shown contrary to the principles of equity. But, on the other hand, if the meaning is only that such beneficiaries are not without legal remedy during the course of administration to secure that the assets are properly dealt with and the rights that they hope will accrue to them in the future are safeguarded, the proposition is no doubt correct. They can be said therefore to have an interest in respect of the assets, or even a beneficial interest in the assets, so long as it is understood in what sense the word 'interest' is used in such a context.
Similarly with the passage from the High Court's judgment in Smith v. Layh … 'it is not the consequence that the residuary legatee or next-of-kin has no right of property in the totality of assets forming the residue of the intestate estate. The beneficial interest is not vested in the legal personal representative, subject to the rights of creditors. The right of the next-of-kin or residuary legatee to have the estate properly administered and to receive payment of the net balance gives them an equitable interest in the totality and therefore in the assets of which it is composed'. With all respect, that cannot be taken as an exact statement of the law without some further definition of terms. For its expressions would have to be reconciled with the authorities that deny to the residuary legatee any property at all in any specific asset while administration proceeds and with the fact that 'residue' cannot come into existence in the eyes of the law until administration is completed. Therefore, while it may well be said in a general way that a residuary legatee has an interest in the totality of the assets, (though that proposition in itself raises the question what is the local situation of the 'totality'), it is in their Lordships' opinion inadmissible to proceed from that to the statement that such a person has an equitable interest in any particular one of those assets, for such a statement is in conflict with the authority of both Sudeley and Barnardo and is excluded by the very premise on which those decisions were based (footnotes omitted).
[6] Commissioner of Stamp Duties (Queensland) v Livingston (1964) 112 CLR 12.
[7] Commissioner of Stamp Duties (Queensland) v Livingston (22).

Observations to a similar effect as those made by Viscount Radcliffe were made by Buss P in Fremantle Lawyers Pty Ltd v Sarich:[8]
A beneficiary under a will acquires upon the testator's death a right to have the deceased estate administered in accordance with the executor's duties. However, neither the legal nor the equitable ownership of the property the subject of a devise or bequest vests in the beneficiary at the time of the testator's death. The reason is that, prior to the administration of the deceased estate, no specific property is capable of constituting the subject property of any trust in favour of the beneficiary. At that stage it could not be identified what part or parts of the deceased estate would need to be realised for the purposes of administration. Accordingly, the beneficiary does not have a proprietary interest in each of the assets which are the subject of the devise or bequest.
[8] Fremantle Lawyers Pty Ltd v Sarich [2019] WASCA 48 [211].
In Brown v Milson,[9] the applicant applied under s 89(1) of the Trustees Act for orders to the effect that her signature on a transfer of the title to her late father's residence was sufficient to bind the estate. Probate of the estate had been granted to the applicant and her brother but he had gone missing while travelling overseas. EM Heenan J expressed reservations about whether an order of the nature sought by the applicant could be made under s 89(1), and said:[10]
Another problem about dealing with the matter under s 89 of the Trustees Act is that, at least at this point, it is questionable whether Mrs Brown and Mr Milson in effecting the sale of the Tyrell Street property are, in the strict sense, acting as trustees in contrast to acting as executors of their father's estate notwithstanding s 6 of the Trustees Act. The reason for that is that the Tyrell Street property comprises the major asset of their father's estate. Its realisation by sale and the conversion of the proceeds to cash is part of the duties of the executors in gathering in the estate property and that is very much an activity which occurs in the initial phase of acting as executors rather than trustees - see Jacob's Law of Trusts in Australia (7th ed, (2006)) par 240; also Livingston v Commissioner of Stamp Duties (1960) 107 CLR 411 and on appeal Livingston v Commissioner of Stamp Duties (1964) 112 CLR 12 (PC) and Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306. That also raises some concerns over whether or not any order could or should be made under s 89.
[9] Brown v Milson [2012] WASC 36.
[10] Brown v Milson [19].
In Gerarchi v Gerarchi,[11] an executor applied for an order that a residential property, in which the deceased's widow had a life interest but in which she was unable to live for reasons of ill health, be sold. Master Sanderson referred to the width of the power conferred by s 89(1) and concluded s 89(1) allows the court in certain circumstances to make an order for the sale of trust property over which a party holds a life interest. The Master did not make an order but adjourned the application to enable the plaintiff to adduce further evidence dealing with issues raised by one of the defendants. Once again, in my view, Gerarchi is distinguishable from the present case on the ground that in Gerarchi the court was dealing with property that was vested in the executor and held by him on trust for the life tenant.
[11] Gerarchi v Gerarchi [2023] WASC 242.
In Cornell v Cornell,[12] Jenkins J made an order under s 89(1) of the Trustees Act conferring power on an executor to do all things necessary to transfer funds held on trust for the deceased in a pension account (representing by far the largest proportion of the estate) to a pension account in the name of the deceased's son who was the sole primary beneficiary. It appears the jurisdiction to make the order under s 89(1) was assumed by the parties and by her Honour without argument.
[12] Cornell v Cornell [2015] WASC 43.
There are close parallels between the facts of Cann v Saleeba and the present case. In Cann, the plaintiff had made an application under the Family Provision Act for provision from his late mother's estate. The application was discontinued before the application for an interim payment was made. Under his late mother's will the plaintiff was entitled to half of the residuary estate (valued at over $3m). An additional factual complication was that although the plaintiff had discontinued his application under the Family Provision Act before making his application for an interim payment, another claim under the Family Provision Act had been made which prevented the estate from being administered and trapped the plaintiff in a 'procedural impasse'. The Master made an order for an interim payment of $120,000. The Master referred to the background facts and then reasoned as follows:[13]
Against that background, I determined this was an appropriate case to order a distribution to the plaintiff of an amount of $120,000. In doing so, I was mindful, given the size of the estate, it was unlikely the plaintiff would receive less than this amount from the estate and as a consequence, the other claimant and the potential beneficiaries would not suffer. That was the important fact - and, in my view, the only relevant fact - in making the determination. The question of the power to make the order posed rather more difficult. There were two reasons for my making the order I did. First, the general rule of practice that an executor does not distribute an estate where a claim under the Act is pending must give way in certain circumstances. It is to be remembered the Act itself is beneficial in nature. It is designed to remedy a situation where a testator has not made adequate provision for a claimant. It is not designed to prevent a beneficiary receiving provision from the estate where there is a real need and where no one stands to lose. The general supervisory capacity of the Supreme Court in relation to estates is, in my view, sufficiently wide to allow an order to be made in proper circumstances.
Secondly, there is power under the Trustees Act 1962 (WA) to order a distribution to be made from an estate. Section 89 of the Act is in the following terms:
…
The plaintiff is a person entitled to make an application under s 89(4). In my view, the discretion embodied in s 89(1) is sufficiently wide to cover the present case. It may be said it was 'inexpedient' to effect a distribution to the plaintiff because of the established rule of practice. Accordingly, jurisdiction is enlivened and an order could be made.
[13] Cann v Saleeba [22] ‑ [24].
Before making an order under s 89(1) the court must be satisfied the disposition (or other transaction) in question is expedient for the trust as a whole and not merely in the interests of one beneficiary.[14]
[14] Riddle v Riddle (222) (Williams J); and Jacobs' Law of Trusts in Australia 8^th Edition (2016), [17.06] and the authorities cited at footnote 51.
In my view, there is considerable force in the defendants' submissions that s 89(1) cannot be invoked by a beneficiary under a will when the estate is in the administration phase. The requirement in s 89(4) that the application be made by the trustees or 'any person beneficially interested under the trust' taken in combination with the reference to 'any property vested in a trustee' are matters of context that indicate that the legislature did not intend the extended definition of trusts contained in s 6 to apply to s 89. This is, however, a contestable proposition and in Cann, Master Sanderson expressed the contrary view.
It is unnecessary for me to decide the question of whether s 89(1) can be invoked by a beneficiary under a will while the estate is in the administration phase. This is because even if it is assumed in the plaintiff's favour that it can be, conferring a power on the first defendant to make an interim payment and directing her to do so is not 'expedient in the management or administration of any property' vested in the first defendant. The conferral and exercise of such a power has no connection with the management or administration of the property of the estate. The purpose of the payment would be to confer a benefit on the plaintiff in circumstances quite unrelated to the management or administration of any property. Further, an interim payment would not be in the interests of the trust generally as opposed to being in the plaintiff's interest.
Implicitly, at least, the plaintiff appears to recognise the difficulty presented by the requirement that an interim payment be expedient in the management or administration of the property forming part of the estate. In the plaintiff's supplementary written submissions he elides these requirements by contending the payment would be expedient in the circumstances of this case because of the plaintiff's dire circumstances and the fact there is no real risk of interference with the entitlements of other beneficiaries.[15]
[15] Plaintiff's supplementary submissions filed 24 June 2024 [7].
In the alternative to his reliance on s 89(1) of the Trustees Act the plaintiff relied on the court's inherent jurisdiction in relation to trusts. The court's inherent jurisdiction is well‑established, see Blenkinsop v Herbert.[16] The plaintiff's reliance on this aspect of the inherent jurisdiction is misplaced for two reasons. First, because, as explained in the authorities referred to above, the first defendant is not a trustee. Secondly, in Cann, the only decision cited by the plaintiff in which the inherent jurisdiction has been invoked, Master Sanderson relied on the court's inherent jurisdiction to supervise the administration of estates.
[16] Blenkinsop v Herbert [2017] WASCA 87 [72] ‑ [89].
The nature of the court's inherent jurisdiction was comprehensively examined in two frequently cited journal articles, 'The Inherent Jurisdiction of the Court' by Master I H Jacob[17] and 'The Inherent Jurisdiction of the Court' by Keith Mason QC[18] (as his Honour then was). In the introduction to his article Master Jacob observed:
The inherent jurisdiction of the court may be invoked in an apparently inexhaustible variety of circumstances and may be exercised in different ways. This peculiar concept is indeed so amorphous and ubiquitous and so pervasive in its operation that it seems to defy the challenge to determine its quality and to establish its limits.
[17] Master I H Jacob, 'The Inherent Jurisdiction of the Court' (1970) 23(1) Current Legal Problems 23.
[18] Keith Mason QC, 'The Inherent Jurisdiction of the Court' (1983) 57(8) Australian Law Journal 449.
A central feature of the inherent jurisdiction is that it enables the court to protect its processes from abuse. Specifically, it enables the court to supervise and control the conduct of its officers and others connected in some official way with the court, its processes or any pending proceedings and to provide an appropriate remedy when those supervised by the court deviate from the proper exercise of their duties or responsibilities.
There is no doubt the court exercises a supervisory jurisdiction over the administration of estates. Persons to whom probate or letters of administration are granted are officers of the court.[19] And, as suggested by the description 'supervisory jurisdiction' the inherent jurisdiction is exercised to protect the integrity of the administration of estates.
[19] Mullins-Trnovsky v Adams [2014] SASC 116; (2014) 121 SASR 155 [33].
The limitless variety of circumstances in which the inherent jurisdiction may be invoked means that inflexible statements about the limits of the court's inherent jurisdiction are incompatible with the very nature of the jurisdiction.
That said, I have serious reservations as to whether making an order directing an executor, who has not breached any relevant duty or otherwise acted improperly, to make an interim payment to a beneficiary making a claim under the Family Provision Act, is a proper exercise of the inherent jurisdiction. In my view, such an order would go beyond the exercise of a supervisory jurisdiction and would involve the substitution of the court's discretion as to the appropriate steps to be taken in the administration for that of the executor. To exercise the discretion in this way would be to invite disgruntled beneficiaries to invoke the court's jurisdiction to challenge otherwise unimpeachable decisions of executors in the hope that they may secure a different outcome from the court.
For the reasons given at [33], and according respect to Master Sanderson's reasoning in Cann, I do not consider it can be said that the supervisory jurisdiction is not sufficiently wide to allow an order for an interim payment to a beneficiary making a claim under the Family Provision Act in 'proper circumstances'.
Proper circumstances, however, do not exist in this case. Unlike the plaintiff in Cann, the plaintiff has not discontinued his Family Provision Act claim and he is not trapped in the 'procedural impasse' in which the plaintiff in Cann found himself. Two further points may be made. First, the legislature set out in s 7A of the Family Provision Act the circumstances in which an applicant for provision may obtain an interim order. While the Family Provision Act does not exclude or curtail the court's inherent jurisdiction, the jurisdiction should be exercised in a manner that reflects the legislative intent manifested in s 7A. Secondly, there is tension between the plaintiff's application for provision and his reliance on his position as a beneficiary under the will. By the Family Provision Act application, the plaintiff is seeking to set aside the disposition of the estate as set out in the will yet his application for an interim payment seeks, in effect, to enforce the terms of the will. Moreover, the Family Provision Act application is preventing the administration of the estate from proceeding. The existence of this tension militates against the exercise of the court's inherent jurisdiction.

Conclusion

For the reasons set out above the application will be dismissed and I will hear from the parties in relation to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CD
Associate to the Honourable Justice Tottle
5 AUGUST 2024