Poland v Poland as Administrator of Estate of K N Poland
[2025] WASC 380
•11 SEPTEMBER 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: POLAND -v- POLAND AS ADMINISTRATOR OF ESTATE OF K N POLAND [2025] WASC 380
CORAM: WHITBY J
HEARD: ON THE PAPERS
DELIVERED : 11 SEPTEMBER 2025
FILE NO/S: CIV 1892 of 2024
BETWEEN: DENNIS JAMES POLAND
Plaintiff
AND
MATTHEW ROY POLAND AS ADMINISTRATOR OF ESTATE OF K N POLAND
First Defendant
MATTHEW ROY POLAND
Second Defendant
PAUL KENNETH POLAND
Third Defendant
Catchwords:
Probate - Revocation of grant of letters of administration - Persistant failure of administrator to administer the estate
Legislation:
Administration Act 1903 (WA) s 29
Non-contenious Probate Rules 1967 (WA) r 9B
Supreme Court Act 1935 (WA) s 18, s 25, s 29
Result:
Grant of letters of administration to first defendant revoked
Probate Registrar directed to issue a grant of letters of administration to the plaintiff
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Legato Law |
| First Defendant | : | In person |
| Second Defendant | : | In person |
| Third Defendant | : | In person |
Case(s) referred to in decision(s):
Estate of Rogers v Rogers [2009] WASC 358
Smith v Partridge [2018] WASC 128
WHITBY J:
Introduction
On 2 October 2022, Kenneth Newman Poland (deceased) of 3 Osten Lane, Bennett Springs WA, died intestate. The deceased died without leaving a spouse and leaving four surviving children: Dennis James Poland, Matthew Roy Poland, Paul Kenneth Poland and Andrew Hyland.
Given many of the parties to these proceedings share the same last name, I will refer to individuals by their first names in these reasons with no disrespect intended.
In accordance the Administration Act 1903 (WA) (Act),[1] the beneficiaries of the deceased's estate are Dennis, Matthew, Paul and Andrew in equal shares.
[1] Item 5 of the table to s 14(1) and s 14(2b) of the Act.
On 3 April 2023, Matthew was granted letters of administration of the deceased's estate (Grant). In support of his application for the Grant, Matthew filed a statement of assets and liabilities of the deceased's estate pursuant to r 9B of the Non-Contentious Probate Rules 1967 (WA) which listed the deceased's assets as follows:
(1)Bank deposits: $77,953.66
(2)Other personally (sic): $117,500.00
(3)House at 3 Osten Lan, Bennett Springs: $495,000.00
(4)Superannuation: Not known
Despite numerous requests made by Dennis' solicitors for Matthew to administer the deceased's estate, Matthew continues to live in the Bennett Springs house without paying rent to the deceased's estate and has failed to make any distributions to the beneficiaries of the deceased's estate.
On 9 April 2024, upon the application of Dennis, the court issued Citation 14 of 2024 calling upon Matthew to bring in the Grant (Citation).
On 3 July 2024, Matthew was served with the Citation. Matthew failed to comply with the Citation.
On 28 July 2024, Dennis commenced this action seeking orders that the Grant be revoked pursuant to s 29 of the Act, alternatively pursuant to s 18 of the Supreme Court Act 1935 (WA), and that Dennis be granted letters of administration in relation to the unadministered portion of the deceased's estate pursuant to s 25 of the Act.
On 24 October 2024, a registrar of this court ordered that Dennis have leave to serve the Writ of Summons on Matthew, in his capacity as the first and second defendants, by prepaid ordinary post and by email. In accordance with those orders, Matthew was served with the Writ of Summons on 15 October 2024. Matthew, in his capacity as both the first and second defendants, has failed to enter an appearance in this action.
On 20 September 2024, Paul filed a notice of intention to abide by the decision of the Court.
Andrew has not been joined to the action, but has been put on notice of the action and has filed an affidavit in support of the orders sought by Dennis.
On 25 June 2025, a registrar of the court ordered that the matter be set down for trial on an undefended basis. At the request of the solicitors for Dennis, I have determined the matter on the papers.
For the reasons that follow, I make the orders sought by Dennis.
The evidence
Dennis relies on the following affidavits:
(1)Affidavit of Dennis James Poland sworn on 6 May 2025;
(2)Affidavit of Dennis James Poland sworn on 21 March 2024;
(3)Affidavit of Service of Danielle De Roberto sworn on 7 November 2024;
(4)Affidavit of Service of Dennis James Poland sworn on 7 November 2024;
(5)Affidavit of Dennis James Poland sworn 19 August 2025; and
(6)Affidavit of Andrew Hyland sworn 5 August 2025.
Legal principles
Section 29 of the Act provides that:
29.Court may revoke grant of administration
(1)Where administration of the estate of a person has been granted the Court may, at any time, upon the application of any person interested in the estate or of its own motion on the report of the Principal Registrar, revoke the administration.
One of the circumstances in which the court may revoke a grant of administration is where revocation is made necessary or desirable to ensure the due administration of the estate.[2]Revocation of a grant of administration may be appropriate where an administrator has persistently neglected or refused to carry out due administration of the estate.[3]
[2] Estate of Rogers v Rogers [2009] WASC 358 [25]; Smith v Partridge [2018] WASC 128 [26].
[3] Estate of Rogers v Rogers [2009] WASC 358 [25] - [29].
Section 43(1) of the Act provides that an administrator is under a duty to:
(1)collect and get in the real and personal estate of the deceased and administer it according to law;
(2)file an inventory of the estate of the deceased, and pass his accounts relating thereto within such time, and from time to time, and in such manner as may be prescribed by the rules or as the court may order; and
(3)when required to do so by the court, deliver up the grant of probate or administration to the court.
Should the grant of letters of administration should be revoked?
On the basis of the unchallenged affidavit evidence filed in support of the action,[4] I am satisfied that Matthew has failed to duly and properly administer the deceased's estate, by:
(1)occupying and continuing to occupy 3 Osten Lane, Bennett Springs without paying rent;
(2)failing to take any steps to sell 3 Osten Lane, Bennett Springs;
(3)failing to respond to reasonable requests for information from Dennis in respect of his administration of the deceased's estate;
(4)failing to make any distributions (interim or final) to the beneficiaries; and
(5)failing to provide any account of his administration of the deceased's estate.
[4] Affidavit of Dennis James Poland sworn 19 August 2025 [3].
It has been nearly three years since the deceased died and approximately two years and five months since Matthew obtained the Grant. The deceased's estate is not complex, and Matthew has not provided any reason why it has not been administered since he obtained the Grant.
Further, Matthew has not compiled with the Citation to deliver up the Grant to the court.
I find that there has been a persistent failure and neglect by Matthew to properly administer the deceased's estate, and to comply with orders of this court.
In these circumstances, I do not have any confidence that Matthew will take steps to ensure the proper administration of the deceased's estate.
I am satisfied that it is necessary to revoke the Grant to assist in the due and proper administration of the deceased's estate and protect the interests of the beneficiaries.
Should Dennis be appointed as administrator of the deceased's estate?
As a person entitled in distribution to the deceased's estate, Dennis is entitled to seek a grant of letters of administration.[5] Dennis has deposed that if he is granted letters of administration, he will administer the Estate according to law.[6]
[5] Section 25 (1)(a) of the Act.
[6] Affidavit of Dennis James Poland sworn on 6 May 2025 [13].
It is appropriate that a grant of administration of the deceased's estate be made to Dennis.
Orders and conclusion
I make the following orders:
(1)The grant of letters of administration over the estate of the late Kenneth Newman Poland (deceased) of 3 Osten Lane, Bennett Springs WA to Matthew Roy Poland made on 3 April 2023 (Grant) be revoked pursuant to s 29 of the Administration Act 1903 (WA).
(2)Within 10 days, the first defendant deliver to the Registry of the Supreme Court of Western Australia:
(a)the Grant for cancellation; and
(b)an affidavit describing his administration of the estate of the deceased, identifying assets which remain unadministered or under his control, and all papers, documents, accounts, receipts and other documents relating to estate assets.
(3)The first defendant appear before a registrar of this court at a date to be fixed for examination on oath or affirmation at the request of the plaintiff, to answer questions about the nature and extent of his administration and the location of unadministered assets or documents relating to them.
(4)An account on a wilful default basis be taken of all of the dealings and transactions of the first defendant as administrator of the estate.
(5)Upon the taking of an account pursuant to order 4 above, the first defendant pay such sum as is found to be owing to the deceased's estate.
(6)The Probate Registrar be directed to issue a grant of letters of administration of the deceased's estate to the plaintiff who is entitled in distribution (irrespective of whether or not the first defendant has delivered the Grant to the court).
(7)The first defendant transfer any estate assets and liabilities to the plaintiff.
(8)The first defendant pay the plaintiff's costs of this action without recourse to an indemnity from the deceased's estate.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RP
Associate to the Honourable Justice Whitby
12 SEPTEMBER 2025
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