Re Banning; Ex Parte Banning

Case [2018] WASC 313

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   RE BANNING; EX PARTE BANNING [2018] WASC 313

CORAM:   VAUGHAN J

HEARD:   12 OCTOBER 2018

DELIVERED          :   12 OCTOBER 2018

PUBLISHED           :   16 OCTOBER 2018

FILE NO/S:   CIV 2797 of 2018

MATTER:   In the matter of the estate of MARTIN PAUL BANNING

EX PARTE

SANDRA MAY BANNING

Applicant


Catchwords:

Probate - Application for revocation of grant of probate - Where executor has passed away

Legislation:

Administration Act 1903 (WA), s 29
Rules of the Supreme Court 1971 (WA), O 73

Result:

Application granted

Category:    B

Representation:

Counsel:

Applicant :  T Stephenson

Solicitors:

Applicant : Eastwood Law

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

Drummond v Registrar of Probates (SA) [1918] HCA 58; (1918) 25 CLR 318

Estate of Rogers v Rogers [2009] WASC 358

Kitay v Frigger (No 2) [2018] FCA 1032

Re Gardiner [2016] VSC 541

Re Kilby [2016] NSWSC 1433

Simmons v Ross [2018] VSC 306

Smith v Partridge [2018] WASC 128

VAUGHAN J:

(These reasons were delivered orally at the conclusion of the hearing. They have been edited to correct matters of grammar and infelicity of expression. Authorities and other references have also been footnoted rather than appearing in the body of the reasons.)

  1. Overview

  1. The late Martin Banning passed away on 8 September 2008.  Mr Banning's will named Donald Campbell‑Smith as the executor of Mr Banning's estate.  On 14 November 2008 probate was granted to Mr Campbell‑Smith.

  2. Sandra Banning, the late Mr Banning's wife, applies in these proceedings to revoke that grant of probate and to appoint herself as administrator of the deceased estate. The application is made in circumstances where Mr Campbell‑Smith passed away on 3 August 2018 having suffered from dementia - the dementia being the original reason for the lodgment of this application on 2 May 2018. 

  3. For reasons I now develop I will grant the application to revoke the grant of probate and will appoint Mrs Banning as administrator of the late Mr Banning's estate.

  1. Nature of the application

  1. Mrs Banning applies by motion dated 2 May 2018 to revoke the grant of probate dated 14 November 2008 to Mr Campbell‑Smith and to appoint herself as administrator.  Mrs Banning seeks that she be issued with letters of administration with the will annexed.  

  2. The motion is supported by affidavit evidence as follows:

    (1)an affidavit of Ann Campbell‑Smith sworn 26 April 2018;

    (2)an affidavit of Timothy Stephenson sworn 27 April 2018; 

    (3)an affidavit of Sandra Banning sworn 1 May 2018; 

    (4)a second affidavit of Ann Campbell‑Smith sworn 10 May 2018;

    (5)a third affidavit of Ann Campbell‑Smith sworn 8 October 2018; and

    (6)an affidavit of Cameron Eastwood sworn 11 October 2018.

  3. A seventh affidavit has also been filed: the affidavit of Angela Frigger sworn 11 April 2018. Mrs Frigger is a party to litigation involving the estate of Mr Banning. Mrs Frigger deposes to the nature of that litigation and various judgments and related applications including an application to the Federal Circuit Court for the…

Continue reading Re Banning; Ex Parte Banning

Sign in free to access the full text

Details
AGLC
Re Banning; Ex Parte Banning [2018] WASC 313
Case
[2018] WASC 313
Decision Date

CaseChat Overview and Summary

The matter Re Banning; Ex Parte Banning concerns an application for the revocation of a grant of probate in the Supreme Court of Western Australia. The applicant, Mrs Banning, seeks the revocation of the grant of probate issued to Donald Campbell-Smith, who was named as the executor in the will of the deceased, Mr Banning. The application arises due to Mr Campbell-Smith's incapacity, diagnosed as fronto-temporal dementia, and his subsequent passing away before the application could be fully resolved. The central legal issues before the court involved the court's inherent jurisdiction to revoke a grant of probate and the subsequent appointment of a new administrator for the estate. The court was required to consider whether the executor's incapacity justified the revocation of the grant of probate and whether an administrator should be appointed in light of the ongoing litigation and need to finalize the estate.

The court found that the executor's incapacity, as confirmed by medical diagnosis and subsequent events, justified the revocation of the grant of probate. Despite Mr Campbell-Smith's passing away, the court proceeded to determine the application as the estate still needed to be administered. The court relied on its inherent jurisdiction and statutory authority under the Supreme Court Act 1935 (WA) to grant or revoke probate. Mrs Campbell-Smith, as named executor in Mr Campbell-Smith's will, would have become the executor of both estates upon becoming executor of his will. However, she had not sought a grant of probate for Mr Campbell-Smith's estate and did not wish to administer Mr Banning's estate. Consequently, the court concluded that the grant of probate to Mr Campbell-Smith should be revoked and an administrator appointed to finalize the deceased estate.

The court ordered the revocation of the grant of probate issued to Donald Campbell-Smith and the appointment of an administrator to manage the estate of Mr Banning. The decision underscores the importance of the court's ability to intervene in probate matters to ensure that estates are properly administered, especially in cases where executors become incapacitated or pass away before estate matters are concluded.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Summary of facts[4] Estate of Rogers v Rogers [29]. As mentioned previously, Mr Banning passed away on 8 September 2008. Mr Banning's will names Donald Campbell‑Smith as the executor of Mr Banning's estate. On 14 November 2008 probate was granted to Mr Campbell‑Smith. The deceased estate has been bedevilled by a significant amount of litigation. The litigation is ongoing. In 2015 Mr Campbell‑Smith was diagnosed with fronto‑temporal dementia. Nevertheless, it appears that for some time after that diagnosis he remained capable of decision‑making. In early 2018 Mrs Campbell‑Smith became aware of the application in the Federal Circuit Court to have the deceased estate administered under Pt XI of the Bankruptcy Act 1966 (Cth). Mr and Mrs Campbell‑Smith subsequently consulted with the solicitors for Mrs Banning. In the course of those consultations a view was formed that Mr Campbell‑Smith was no longer capable of understanding or participating in any legal proceedings on behalf of the deceased estate. For that reason the present application was brought on 2 May 2018. Subsequently, however, Mr Campbell‑Smith passed away on 3 August 2018. At present, the deceased estate is involved in an appeal before the Court of Appeal of Western Australia (CACV 2/2017). The deceased estate is also in the process of enforcing various costs orders made in its favour. It is for this reason that Mrs Banning says that the appointment of an administrator is required to finalise the estate. Applicable principles on an application to revoke a grant of probate and appoint a new administrator An executor having been granted probate of a testator's will becomes executor not only of that will but also the will of any testator of whom the deceased was the sole or surviving executor.[5] Mrs Campbell‑Smith is named as executor of Mr Campbell‑Smith's will. Accordingly, on becoming executor of Mr Campbell‑Smith's will, Mrs Campbell‑Smith will also become executor of Mr Banning's will. [5] Drummond v Registrar of Probates (SA) [1918] HCA 58; (1918) 25 CLR 318, 321. See further Re Kilby [2016] NSWSC 1433 [14] ‑ [18]; Simmons v Ross [2018] VSC 306 [104]. At present, however, Mrs Campbell‑Smith has not sought a grant of probate in relation to Mr Campbell‑Smith's estate. In any event, Mrs Campbell‑Smith deposes that she does not want to administer the estate of Mr Banning. It is therefore necessary, despite the passing of Mr Campbell‑Smith, to proceed to determine the application for revocation of the grant of probate. The power to revoke a grant of probate arises in the court's inherent jurisdiction.[6] The court's broad jurisdiction in respect of probate matters is also grounded in s 18 of the Supreme Court Act 1935 (WA).[7] That section provides: 18. Probate jurisdictionThe Supreme Court shall have voluntary and contentious probate jurisdiction and authority in relation to the granting or revoking of probate of wills and letters of administration of all real and personal estate whatsoever within Western Australia and its dependencies of any deceased person; and all such powers and authorities in respect of such jurisdiction as were given to the Court by the Administration Act 1903, and any other Act in force in Western Australia immediately before the commencement of this Act, with authority to hear and determine all questions relating to testamentary causes and matters.[6] Smith v Partridge [25]; Estate of Rogers v Rogers [21] ‑ [22], [31], [34].[7] Smith v Partridge [25].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.