Lowe v Askew
[2016] WASC 197
•30 JUNE 2016
LOWE -v- ASKEW [2016] WASC 197
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 197 | |
| Case No: | CIV:2146/2015 | 14 JUNE 2016 | |
| Coram: | MASTER SANDERSON | 30/06/16 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Directions given | ||
| B | |||
| PDF Version |
| Parties: | FIONA LEE LOWE VANESSA ANGELA ASKEW HARVEY THOMAS ASKEW NOELA WINIFRED ASKEW |
Catchwords: | Probate Application by administrator for directions Turns on own facts |
Legislation: | Wills Act 1970 (WA) |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
VANESSA ANGELA ASKEW
First Defendant
HARVEY THOMAS ASKEW
Second Defendant
NOELA WINIFRED ASKEW
Third Defendant
Catchwords:
Probate - Application by administrator for directions - Turns on own facts
Legislation:
Wills Act 1970 (WA)
Result:
Directions given
Category: B
Representation:
Counsel:
Plaintiff : In person
First Defendant : Mr I T Blatchford
Second Defendant : In person
Third Defendant : In person
Administrator : Mr A M Prime
Solicitors:
Plaintiff : In person
First Defendant : Blatchfords Lawyers
Second Defendant : In person
Third Defendant : In person
Administrator : MDS Legal
Case(s) referred to in judgment(s):
Nil
1 MASTER SANDERSON: This matter concerns the estate of the late Jean Askew, who died on 26 June 2014. By an amended writ of summons filed 13 October 2015, the plaintiff seeks, inter alia, a declaration that a draft unsigned will prepared in 2007 is not an informal will for the purposes of the Wills Act 1970 (WA) pt X. She also seeks an order that there be a grant of letters of administration in relation to the intestacy of the deceased to an independent administrator.
2 On 15 October 2015, Ross John McCallum was appointed the administrator of the personal estate and receiver of the real estate of the deceased. Pursuant to order 2 of the orders appointing Mr McCallum, he may apply for directions as to the conduct of his appointment as administrator and receiver. Mr McCallum has identified a number of issues which have arisen in the course of his acting as administrator and receiver about which he seeks the direction of the court.
3 The parties to the proceedings are the four children of the deceased. For the sake of convenience and in an effort to avoid confusion, I will refer to the parties by their Christian names. In doing so, I intend no disrespect to any party.
4 The four issues raised by Mr McCallum may be summarised as follows:
1. Whether Mr McCallum should take action to remove Fiona from the property at 566 Rowley Road, Oakford and then sell the property or, if not, whether he should require Fiona to pay occupation rent to the estate in the intervening period.
2. Whether he should transfer the share owned by the deceased in Alphabel Pty Ltd to himself, appoint himself as a director of Alphabel Pty Ltd and then transfer the property owned by Alphabel Pty Ltd to Noela, and pay Noela a sum claimed as a loan to her mother of $65,000.
3. Whether he should pay $8,000 to Vanessa by way of an alleged gift made to her by her mother, prior to her mother's death.
4. Whether he should investigate payments made by Vanessa in her capacity as the deceased's power of attorney, prior to the deceased's death.
5 Each of the parties has filed two affidavits relating to these questions. The result is a measure of agreement and a measure of disagreement between the four siblings. Each of them filed written submissions and each had the opportunity to make oral submissions. I have taken all of the submissions into account in determining this matter.
6 It is worth noting that an application by an administrator in Mr McCallum's position is not, strictly speaking, a contested proceeding. Mr McCallum is seeking the direction of the court to ensure any action he takes is protected in a sense that, provided he has made full and fair disclosure, no party can raise a claim against him. As the potential beneficiaries of the deceased's estate, it is appropriate the views of each of the four children should be taken into account. But in the end, it is necessary to provide appropriate directions to the administrator not to accommodate the particular wishes of one or other of the siblings.
7 Turning then to the questions raised by Mr McCallum, the first is the question of the sale of Rowley Road. Fiona objects to the sale and wishes to retain Rowley Road as part of her share of the estate. Vanessa says Fiona has no right to reside at Rowley Road and it should be delivered up for sale and sold immediately. Harvey agrees. Noela is happy for Fiona to keep Rowley Road as her share of the estate and to remain living there in the meantime.
8 There are two aspects to this question. The first concerns the sale or retention of the property. It seems to me on an intestacy the property would have to be sold and the proceeds divided between the parties. Fiona has no particular right to the property, although there is no reason why she should not buy it if it were to be sold by the administrator. Furthermore, her evidence is to the effect she has a property she owns on the market and is interested in buying the Rowley Road property at market value. To accommodate the wishes of all the parties, it seems to me that the administrator ought be directed that if, within three months, an offer has not been received from Fiona to purchase Rowley Road at market value, then it should be sold.
9 In the meantime, it seems to me the best option is for Fiona to continue to reside at Rowley Road. She is maintaining it and were she to vacate the premises, the administrator would be put to the expense of ensuring the property did not deteriorate. While there might be a slight advantage to Fiona in dollar terms in remaining in residence in the property as against some sort of caretaker being engaged, the difference is not so great as to exclude Fiona from occupation. Accordingly, there will be a direction that the administrator is acting properly in allowing Fiona to remain in the Rowley Road property until it is sold.
10 In relation Alphabel Pty Ltd, at pars 15 - 44 of Noela's affidavit sworn 13 May 2016, she sets out how the South Lake unit came to be in the name of the company and why she says it belongs to her. In my view, the history, which I need not repeat, is convincing. Nothing that has been provided by the other parties contradicts anything Noela has to say. As it is, Fiona agrees the South Lake unit belongs to Noela. Vanessa says she has serious concerns about Noela's claim, but does not provide any detail as to what those concerns might be. Harvey considers the issues of the company are separate to the estate.
11 Further, the evidence establishes that Noela did loan her mother $65,000 and that amount ought be repaid. It is the case that the evidence on this question is limited. However, it does not seem to me there is anything which raises any doubt as to the veracity of the claim and therefore it is proper the alleged loan be acknowledged and repaid.
12 It would seem to me the method of doing this proposed by Mr McCallum is the correct way to proceed. Noela appears to take the view the procedure proposed by Mr McCallum is too complicated. But in the end, the result will be what she seeks. Directions to that effect ought be made.
13 As to the $8,000 gift to Vanessa, Fiona does not express a view. Vanessa says the gift was agreed in June 2014 in the presence of Allison Bailey. (The full amount of the gift was $20,000, $12,000 of which was transferred. The $20,000 is the amount to which Ms Bailey refers.) Her position is supported by an affidavit of Ms Bailey. Harvey says his mother told him on 18 June 2014 of the gift to Vanessa. Noela does not accept that there was any gift.
14 Based upon the evidence of Vanessa, Harvey and Ms Bailey, it seems to me clear that a gift was made. It now ought be put into effect. There will be a direction that the $8,000 be paid to Vanessa.
15 Finally, there is the question of whether the expenditure by Vanessa as the deceased's power of attorney ought be investigated. Fiona says that the amount in issue, $52,603.27, cannot be reconciled, but it is not cost effective for the administrator to investigate. Vanessa says all purchases were made with her mother's full knowledge and consent. Harvey appears to have no real issue with the expenditure, but does not object if Mr McCallum investigates if he chooses. Noela alleges Vanessa took the money from the deceased's account for her own use.
16 In my view, there is nothing to be gained by having Mr McCallum investigate this issue. While I accept the position is somewhat unclear to the point of being murky, it is difficult to see how any claim against Vanessa could be quantified, let alone pursued - perhaps even pursued through litigation. In my view, it is in the best interests of the estate if the matter is put to one side. Accordingly, there will be no direction on this issue.
17 The costs incurred on this application should be paid out of the estate. I will hear the parties as to precisely how the directions ought be formulated.
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