Moylan v Sims

Case [2025] WASC 349

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   MOYLAN -v- SIMS [2025] WASC 349

CORAM:   GETHING J

HEARD:   26 AUGUST 2025

DELIVERED          :   26 AUGUST 2025

PUBLISHED           :   27 AUGUST 2025

FILE NO/S:   CIV 2450 of 2024

BETWEEN:   REBECCA LEEANNE MOYLAN

Plaintiff

AND

FIONA JANE SIMS

First Defendant

MOLLY MAJELLA SIMS

Second Defendant

THOMAS MATTHEW SIMS

Third Defendant

SEBASTIAN LUCAS SIMS

Fourth Defendant


Catchwords:

Succession - Grant of letters of administration - Deceased survived by three children and no wife or de facto partner - Application by mother of two of the children for a grant of letters of administration - Whether grant should be made durante minore aetate (during the age of minority) or in general terms

Legislation:

Administration Act 1903 (WA) s 6, s 13, s 14(1), s 25(1)
Non-contentious Probate Rules 1967 (WA) r 26

Result:

An order granting the plaintiff letters of administration in general terms

Category:    B

Representation:

Counsel:

Plaintiff : Mr C A Gregson
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance

Solicitors:

Plaintiff : Gregson & Associates
First Defendant : K Primrose
Second Defendant : Forbes Kirby
Third Defendant : Forbes Kirby
Fourth Defendant : Durey Legal

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

Ackerly v Felton [2012] NSWSC 1468

Britt v The State of Western Australia [2022] WASCA 75

Fairburn v Healey [2009] WASC 114

Hancock v Rinehart [2015] NSWSC 646; (2015) 106 ACSR 207

Hart v Hart [2010] WASC 329

In the Estate of Slattery (1909) 9 SR (NSW) 577

McFarlane v Jeffery Crondon Smith as Administrator of Estate of Dorothy Joyce McFarlane [2023] WASC 336

Nicholl v Mattingly [2025] WASC 297

Re Banning; Ex Parte Banning [2018] WASC 313

Re Kibble [1935] QWN 111

Re Leopold; Application by Gasbarro and Roache [2022] VSC 579

Reyburn and Anor [2002] WASCA 171

Rogers v Rogers [2009] WASC 358

Sawbridge v Hill (1871) LR 2 P & D 219

Smith v Partridge [2018] WASC 128

Walter v Hasslinger [2022] VSC 460

GETHING J:

  1. Introduction

  1. Matthew Sims (Deceased) died on 22 May 2024 intestate.  He had property in Western Australia, the value of which is unclear.  The Deceased was survived by three children, Molly Sims, Thomas Sims and Sebastian Sims.  As I will refer to multiple people throughout this judgment with the same surname, and intending no disrespect, I will refer to the people involved by their first names.  

  2. The mother of Molly and Thomas is Rebecca Moylan, the plaintiff.  Rebecca was in a de facto relationship with the Deceased which ended in December 2009.  The mother of Sebastian is Fiona Sims, the first defendant.  Fiona was married to the Deceased.  They separated in around March 2023 and their divorce was finalised in April 2024.  So as at the date of the death of the Decease, he had no wife and nor de facto partner.[1] 

    [1] See Administration Act 1903 (WA) (AA) s 15.

  3. It…

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Moylan v Sims [2025] WASC 349
Case
[2025] WASC 349
Decision Date

CaseChat Overview and Summary

Moylan v Sims is a case involving the grant of letters of administration for the estate of a deceased person, Sebastian Sims, who left behind three minor children. Rebecca Moylan, the mother of two of the children, applied for a grant of letters of administration, contending that she should be the administrator of the estate during the minority of the children. Fiona Sims, the mother of the third child, Sebastian, filed a caveat asserting her own right to administer the estate. The dispute centres on whether Rebecca, who is the guardian of two of the children but not the third, should be granted letters of administration during the minority of the children or if the grant should be made in general terms, potentially excluding her from administering the estate.

The court was required to determine whether Rebecca could be appointed as the administrator of the estate during the minority of the children, despite not being the guardian of all the beneficiaries. This involved interpreting the relevant provisions of the Non-contentious Probate Rules 1967 (WA) and the Administration Act 1903 (WA), particularly how the rules apply when some beneficiaries have different guardians. The court needed to consider the statutory framework governing the administration of estates where beneficiaries are minors, and whether the rules permit a partial grant to a guardian who is not responsible for all the minor beneficiaries.

The court concluded that the Non-contentious Probate Rules 1967 (WA) do not provide a clear mechanism for appointing a guardian for only some of the beneficiaries in a situation where they do not all have the same guardian. The court held that Rebecca could not be appointed as the administrator of the estate during the minority of the children because she is not the guardian of all the beneficiaries, and there was no provision in the rules for such a partial appointment. Consequently, the court determined that the grant of letters of administration should be made in general terms, potentially excluding Rebecca from administering the estate during the minority of the children.

The court's decision effectively precludes Rebecca from being appointed as the administrator of the estate during the minority of the children, given her status as the guardian of only two of the three beneficiaries. This ruling underscores the importance of the statutory framework in determining the rights of guardians and beneficiaries in estate administration matters.

Orders

Orders of the court

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Background

Background to the litigation

Factual and procedural background The facts set out in the Introduction are drawn from Rebecca's Affidavit, and I find them proven on the balance of probabilities. The Non-contentious Probate Rules 1967 (WA) (NCPR) in r 26 set out a process where all beneficiaries to a deceased estate for which a grant of letters of administration is required are under the age of 18:26.Grants on behalf of infants (1)Grants of administration durante minore aetate may be made to guardians of infants for their use and benefit, subject to such limitations or conditions as the Registrar may order. (2)Infants above the age of 14 years may elect a guardian; and in other cases the Registrar may, on application made to him on motion, appoint as guardian a fit and proper person who consents to act. (3)Where a guardian applies for administration, he shall produce evidence of his election or assignment. (4)In a family where there are infants both above and under the age of 14 years, an elected guardian may act for all the infants without special assignment. The term durante minore aetate means 'during the age of minority'.[2] If the court makes a grant durante minore aetate, it would then make a final grant to the minor when the minor comes of age.[3][2] Ackerly v Felton [2012] NSWSC 1468 [54] (Young AJ) (Ackerly); Wills, Probate and Administration Service Western Australia [52.015.190] (LexisNexis).[3] Ackerly [56]. It is apparent from Rebecca's Affidavit that she was intending to apply for a grant of letters of administration durante minore aetate in the non-contentious jurisdiction. To this end, both Molly and Thomas prepared elections pursuant to NCPR r 26(2) (which were filed in this action). Sebastian was too young to do so. However, the problem this application faced is that Rebecca is not the guardian of Sebastian. NCPR r 26(2) contemplates the situation in which the guardian is the guardian of all child beneficiaries. It does not appear to contemplate the situation in which some of the child beneficiaries have different guardians. Fiona was not prepared to consent to Rebecca being appointed administrator. So Rebecca never filed this application. On 5 August 2024, Rebecca filed Caveat 136 of 2024 in relation to the estate of the Deceased (Rebecca's Caveat). Rebecca's Caveat was in the following terms:Take notice that REBECCA LEEANNE MOYLAN of xx, Dianella, in the State of Western Australia, the guardian for MOLLY SIMS MOYLAN and THOMAS MATTHEW SIMS, the lawful children of the Deceased, being beneficiaries of the estate by operation of s14(1) of the Administration Act 1903 (WA), claims an interest in the estate of the Deceased as a having a right to administer the estate on intestacy and does hereby demand that nothing be done therein without notice to her. On 28 October 2024, Fiona filed Caveat 178 of 2024 (Fiona's Caveat). Fiona's Caveat was in the following terms:Take notice that I, Fiona Jane SIMS of xx, Coogee, in the State of Western Australia, claiming interest in the estate of the Deceased as the parent of Sebastian Lucas SIMS, a lawful child of the Deceased, being a beneficiary of the estate pursuant to section 14(1) of the Administration Act 1903 (WA) and having a right to administer the estate on intestacy by operation of section 25(1) of the Administration Act 1903 (WA) do hereby demand that nothing be done therein without notice to me.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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