O'Sullivan v O'Sullivan Executor of the Estate of JM O'Sullivan - [2021] WASC 168

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   O'SULLIVAN -v- O'SULLIVAN EXECUTOR OF THE ESTATE OF JM O'SULLIVAN [2021] WASC 168
CORAM:   MASTER SANDERSON
HEARD:   20 APRIL 2021
DELIVERED          :   28 MAY 2021
PUBLISHED           :   28 MAY 2021
FILE NO/S:   CIV 2145 of 2020
BETWEEN:   JEANNIE O'SULLIVAN
Plaintiff

AND

MICHAEL SHAUN O'SULLIVAN EXECUTOR OF THE ESTATE OF JM O'SULLIVAN
First Defendant

MICHAEL SHAUN O'SULLIVAN
Second Defendant

Catchwords:

Family Provision Act 1972 (WA) - Probate - Application for removal of executor of estate - Turns on own facts

Legislation:

Family Provision Act 1972 (WA)

Result:

Administrator removed
Provision made for plaintiff

Category: B

Representation:

Counsel:

Plaintiff	:	ST Hemachandra
First Defendant	:	In person
Second Defendant	:	In person

Solicitors:

Plaintiff	:	Fourlion Legal
First Defendant	:	In person
Second Defendant	:	In person

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

Balla v Bei [2020] WASC 348 [128]
Coodes v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Young v Martin [2020] WASC 442 [117]

MASTER SANDERSON:

This was the hearing of two separate but interrelated applications. First, the plaintiff applied for an order in her favour under the Family Provision Act 1972 (WA). As part of the relief claimed in those proceedings, she sought an order that the first defendant be removed as executor of the estate of Jean Mary O'Sullivan (the deceased). She also sought certain ancillary orders. The way in which the relief was framed was unusual but in the end I was not satisfied it was procedurally impermissible. Accordingly, I made the following orders:
1.Pursuant to section 6(1) of the Family Provision Act 1972 (WA) further provision be made altering the last Will and Testament 19 November 2011 of the late Jean Mary O'Sullivan as follows:
(a)the following clause be inserted to replace clause 2 of the Will: 'I appoint the Public Trustee as my Executor';
(b)clauses 3 - 10 of the Will be removed; and
(c)the following clause be inserted as clause 3 of the Will: 'I direct my executor to pay all my debts, and then I give the residue of my estate to my daughter Jeannie Marie O'Sullivan.'
2.The first defendant be directed to deliver the grant of Probate to the Supreme Court Probate Registry within 14 days.
3.The plaintiff have leave to lodge a caveat over 5 Ollis Street, Safety Bay, Western Australia.
4.The plaintiff's costs of these proceedings and CIV/1646/2020 (Leave Proceedings) be paid from the Estate.
The background facts can be summarised as follows. The deceased was born on 1 July 1934.[1] The plaintiff was born on 16 June 1954.[2] The deceased was the plaintiff's and the defendant's mother. When the plaintiff was less than a year old her biological father, Cornelius O'Sullivan, died. Within a year the deceased was married to Christopher Michael O'Sullivan (Christopher) who the plaintiff grew up believing was her father.[3] The defendant was born on 7 January 1957. A further brother, Christopher, was born on 2 June 1958.[4]
[1] Affidavit of Jeannie Marie O'Sullivan sworn 23 October 2020, Annexure JMO6.
[2] Affidavit of Jeannie Marie O'Sullivan affirmed 2 June 2020 [2].
[3] Affidavit of Jeannie Marie O'Sullivan affirmed 2 June 2020 [4] - [6].
[4] Plaintiff's chronology of events filed 14 April 2021.
In 1967 the family emigrated to Australia. They built a home in Safety Bay (Safety Bay property) and moved into that property in 1968. In 1969 the plaintiff commenced a hairdressing apprenticeship. In 1970 the deceased returned to England for a short time and it seems withdrew moneys from a trust fund in the plaintiff's name. The plaintiff moved out of the Safety Bay property in 1972.[5]
[5] Affidavit of Jeannie Marie O'Sullivan affirmed 2 June 2020 [7] - [10].
In the mid-1970s the deceased was hospitalised and diagnosed with bipolar disorder, manic depression and obsessive compulsive disorder.[6] The Safety Bay property was transferred into the names of the deceased and her father as joint tenants.[7] It seems the deceased never recovered from her mental illness. Over the years she was in and out of hospital and her relationship with her family and her friends was adversely affected by her illness, although the state of the various relationships fluctuated from time to time. In the 1990s the deceased and the plaintiff's father separated and the plaintiff's father moved out of the Safety Bay property. When he moved out he transferred his share in the title of the Safety Bay property to the deceased.[8]
[6] Affidavit of Jeannie Marie O'Sullivan affirmed 2 June 2020 [13].
[7] Affidavit of Jeannie Marie O'Sullivan sworn 9 November 2020 [6] - [7]; Annexure JMO9.
[8] Affidavit of Jeannie Marie O'Sullivan sworn 9 November 2020 [6] - [7], Annexure JMO10.
Between 1999 and 2010 the plaintiff acted as the deceased's carer. She visited the Safety Bay property daily.[9] Because of her commitment to the deceased the plaintiff did not take up alternative employment.[10] In 2010 the plaintiff arranged for a doctor to attend the Safety Bay property to care for and assist the deceased. The deceased took this badly. She banished the plaintiff from the Safety Bay property.[11]
[9] Affidavit of Jeannie Marie O'Sullivan affirmed 2 June 2020 [21] - [24].
[10] Affidavit of Jeannie Marie O'Sullivan affirmed 2 June 2020 [27] - [28].
[11] Affidavit of Jeannie Marie O'Sullivan affirmed 2 June 2020 [32] - [34].
It would seem that at least until 2010 the defendant had some contact with the deceased. However, that appears to have ceased some time between 2010 and 2015. Between 2013 and 2018 the plaintiff's father lived with her and she was his carer.[12]
[12] Affidavit of Jeannie Marie O'Sullivan affirmed 2 June 2020 [51].
The deceased died on 8 April 2015. She left a will dated 19 November 2011.[13] The defendant applied for a grant of probate on 17 December 2015 and obtained a grant on 21 January 2016. It was not until September of 2019 the plaintiff obtained a copy of the deceased's will and the grant of probate.[14] On 3 June 2020 the plaintiff applied for leave to commence an action under the Family Provision Act out of time. On 12 November 2020 leave was granted.
[13] Affidavit of Jeannie Marie O'Sullivan sworn 23 October 2020, Annexure JMO6.
[14] Affidavit of Jeannie Marie O'Sullivan affirmed 2 June 2020 [59].
At no stage has the defendant in his capacity as executor of the deceased's estate engaged with the plaintiff or the court. He did not appear or take any part in the proceedings brought by the plaintiff for an extension of time under the Family Provision Act. He has not appeared or taken any part in these proceedings. The defendant's failure to discharge his duties as executor is readily apparent. His behaviour is nothing short of reprehensible. The personal legal representative of a deceased who is charged with administering an estate according to law has an obligation to respond to proceedings brought in relation to the estate. It is a fundamental aspect of an executor's duties. Without more, such failure would in most circumstances justify the removal of the named executor as administrator of the estate. The position is worse here. The defendant has threatened the plaintiff with violence if she brought any claim against the estate. He has also threatened to destroy property forming part of the estate.[15] In all the circumstances, the evidence adequately demonstrates removal of the defendant as executor of the deceased's estate was warranted.
[15] Affidavit of Jeannie Marie O'Sullivan affirmed 2 June 2020 [75].
As to the application under the Family Provision Act, the plaintiff relied on the decision of the High Court in Singer v Berghouse.[16] In that decision the court said that at least four factors ought be taken into account. These factors were the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased and the relationship between the deceased and other persons who had legitimate claims on her bounty.[17] The so‑called jurisdictional question is to be determined as at the date of death of the deceased.[18] In this case, the will of the deceased made no provision at all for the plaintiff.
[16] Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201.
[17] Singer v Berghouse (210) (Mason CJ, Deane & McHugh JJ).
[18] Coodes v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494, 508 (Dixon CJ), 515, 516 (Webb J), 526 - 528 (Kitto J); Balla v Bei [2020] WASC 348 [128]; Young v Martin [2020] WASC 442 [117].
In my view, the evidence advanced by the plaintiff clearly establishes the deceased's will did not make adequate provision from her. As at the date of death of the deceased, the plaintiff was living in government housing and was caring for and living with her father without any assistance from other members of the family.[19] She had no superannuation or savings.[20] While the deceased's estate was modest, the major asset is the interest in the Safety Bay property.[21] The plaintiff would be substantially better off if the deceased's interest passed to her.
[19] Affidavit of Jeannie Marie O'Sullivan affirmed 2 June 2020 [21], [51], [53].
[20] Affidavit of Jeannie Marie O'Sullivan affirmed 2 June 2020 [28].
[21] Affidavit of Jeannie Marie O'Sullivan sworn 23 October 2020, Annexure JMO6.
It is the case that as at the date of the deceased's death she was estranged from the plaintiff. But that appears on the evidence to have been the deceased's decision and there is nothing to suggest it was occasioned by any unreasonable act on the part of the plaintiff. Quite the contrary - the trigger seemed to be the plaintiff arranging for the deceased to obtain medical assistance. Prior to that incident the plaintiff had for many years cared for and attended to the needs of the deceased. The evidence demonstrates the deceased's quality of life was greatly enhanced by the actions of the plaintiff. There was nothing the plaintiff did which could be regarded as disentitling conduct. On the other hand, the actions of the defendant do not suggest he contributed in any material way to the deceased's enjoyment of life.
In all the circumstances, the jurisdiction in this case was clearly enlivened. That being so, it was a question of what distribution was appropriate. Given the limited nature of the deceased's estate, it was appropriate she should have the deceased's estate.
Having reached that conclusion, I then took the again slightly unusual step of granting the plaintiff leave to lodge a caveat against the Safety Bay property. That was done to ensure the defendant could not take any steps which would adversely affect the plaintiff's position. In the circumstances of this case, I was satisfied such an order was warranted.
Costs, of course, follow the event.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LH
Research Associate to the Honourable Chief Justice Quinlan
28 MAY 2021