Re Estate of Barry Nelson Watkins;
[2021] WASC 193
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE ESTATE OF BARRY NELSON WATKINS; EX PARTE WATKINS [2021] WASC 193
CORAM: ACTING REGISTRAR HOSKING
HEARD: ON THE PAPERS
DELIVERED : 17 JUNE 2021
FILE NO/S: PRO 1524 of 2010
MATTER: Estate of BARRY NELSON WATKINS
EX PARTE
BELINDA JANE WATKINS
Applicant
Catchwords:
Probate - Administrators - Letters of Administration - Revocation of grant of letters of administration - Amendment of grant of letters of administration - Special circumstances - Removal of administrator - Leave reserved to reapply
Legislation:
Administration Act 1903 (WA)
Inheritance (Family and Dependants' Provision) Act 1972 (WA)
Local Government Act 1995 (WA)
Non-contentious Probate Rules 1967 (WA)
Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)
Transfer of Land Act 1893 (WA)
Trustees Act 1962 (WA)
Result:
Application granted
Category: B
Representation:
Counsel:
| Applicant | : | No appearance |
Solicitors:
| Applicant | : | Mossensons |
Case(s) referred to in decision(s):
Brown v Milson [2012] WASC 36
Estate of Alice Maud Mack [1962] NSWR 1029
Re Banning [2018] WASC 313
Re Estate of Joseph William Stewart [2020] WASC 385
Smith v Partridge [2018] WASC 128
The Estate of Erminia Agnes Rogers v Rogers [2009] WASC 358
Tsaknis v Liburne [2010] WASC 152
ACTING REGISTRAR HOSKING:
The background facts
This is an application made by Belinda Jane Watkins, an administrator of a deceased's estate seeking that the court revoke a grant of letters of administration to Tania Jane Lee, a co-administrator, and amend the grant to take effect solely as a grant to the applicant.
For the reasons that follow, I propose to make the orders pressed by Ms Watkins. In these reasons, I deal with the following matters:
(a)the background facts;
(b)the application and evidentiary foundation;
(c)the legal framework and principles;
(d)disposition; and
(e)conclusion and orders.
Barry Nelson Watkins died intestate on 16 October 2009. On 14 April 2010, letters of administration of his estate was granted by this court jointly to Ms Lee and Ms Watkins (together the Administrators) in the matter PRO 1524 of 2010. Ms Lee was the de facto partner of the deceased and Ms Watkins is a daughter of the deceased.
On 12 October 2010, Ms Lee filed with the court an originating summons seeking an order that adequate provision be made out of the estate for her pursuant to s 65 of the Trustees Act 1962 (WA) and s 6, s 7 and s 8 of the Inheritance (Family and Dependents' Provision) Act 1972 (WA). That proceeding is known as CIV 2620 of 2010 (Family Provision proceeding).
On 12 August 2013, the second, third and fourth defendants in the Family Provision proceeding made an application seeking the appointment of a next friend for Ms Lee. On 26 September 2013, Master Sanderson made orders as sought which, among other things, declared Ms Lee incapable of managing her affairs in respect of the Family Provision proceeding, pursuant to the Rules of the Supreme Court 1971 (WA) O 70 r 1(c). A next friend was appointed for Ms Lee on 3 February 2014 and a substitute next friend was appointed on 3 December 2015.
The Family Provision proceeding was settled by court approval of a deed of settlement on 25 June 2019 (settlement deed).
Ms Watkins now complains that Ms Lee has neglected to fulfil her obligations in the administration of the estate, which includes effecting settlement in terms agreed.
The application and evidentiary foundation
By letter dated 30 October 2020, an application was made on behalf of Ms Watkins to revoke the grant of letters of administration to Ms Lee, and to amend the grant to take effect solely as a grant to Ms Watkins (revocation application). The primary basis of the revocation application is that the terms of the settlement deed are otherwise unlikely to be effected due to the conduct and unknown whereabouts of Ms Lee.
In support of the revocation application, an affidavit sworn by Ms Watkins on 24 August 2020 was filed. In her affidavit, Ms Watkins deposes (among other things), to the following.
The primary asset of the estate is a property located in Baldivis. The settlement deed needs to be effected by selling the Baldivis property and dividing the proceeds of sale in accordance with the terms of the settlement deed. In order to sell the Baldivis property, it must first be transferred into the names of the Administrators.[1]
[1] Affidavit of B Watkins sworn 24 August 2020, 2 ‑ 3.
To transfer the Baldivis property into the Administrators' names, both Administrators must sign a transmission application in compliance with s 187(3) of the Transfer of Land Act 1893 (WA), which in short provides that all joint executors or administrators must sign any contract or other application for a dealing to be registered under the Transfer of Land Act.[2]
[2] Affidavit of B Watkins sworn 24 August 2020, 3.
Once the Baldivis property has been transferred into the Administrators' names, the Administrators will need to sign a number of documents to effect the sale of the Baldivis property, such as a contract to appoint a selling agent, an offer and acceptance to sell the Baldivis property and a transfer of land to be lodged at Landgate.[3]
[3] Affidavit of B Watkins sworn 24 August 2020, 4.
Ms Watkins deposes to her belief that as long as Ms Lee remains a joint administrator, it will not be possible to effect a sale of the Baldivis property. This is due to the requirement for Ms Lee to sign at least a transmission application and a transfer of land form, based on Ms Watkins' belief that it will not be practical to secure Ms Lee's signature on either of those documents. The basis of Ms Watkins' belief includes that after the Family Provision proceeding was settled, Ms Watkins visited the Baldivis property and found Ms Lee was no longer residing there, and significant damage had been caused to the Baldivis property.[4]
[4] Affidavit of B Watkins sworn 24 August 2020, 4 ‑ 6.
On 25 July 2019, the City of Rockingham issued a summons against Ms Lee and Ms Watkins for the non‑payment of rates on the Baldivis property, totalling $21,418.27. Ms Watkins deposes that the Baldivis property must be sold in order to pay the outstanding rates. In August 2019, the City of Rockingham contacted Ms Watkins' solicitors and advised that unless the rates were paid, or the Baldivis property was sold, the City of Rockingham would sell the Baldivis property under s 6.64 of the Local Government Act 1995 (WA). Ms Watkins' solicitors have remained in contact with the City of Rockingham, which is concerned that no sale of the Baldivis property has taken place.[5]
[5] Affidavit of B Watkins sworn 24 August 2020, 6.
There is a pressing need to attend to the sale of the Baldivis property for two reasons. First, the terms of the settlement deed were approved by the court nearly two years ago (on 25 June 2019), and such terms have not yet been effected. Secondly, the Baldivis property needs to be sold in order to pay the outstanding rates and to prevent the City of Rockingham from selling the Baldivis property pursuant to s 6.64 of the Local Government Act. Ms Watkins deposes to her belief that it is in the interests of all parties to the settlement deed for a sale of the Baldivis property to proceed in an orderly manner with an agent of their choosing, as opposed to a forced local government sale.[6]
[6] Affidavit of B Watkins sworn 24 August 2020, 6 - 7.
The court should remove Ms Lee as a joint administrator as it will not be practical to have Ms Lee sign the necessary documents required to effect a sale of the Baldivis property in accordance with the settlement deed. This is said to be because Ms Lee's whereabouts is unknown and Ms Lee's diminished capacity (as evidenced by the appointment of a next friend in the Family Provision proceeding) may call into question the validity of any document she signed in any event.[7]
[7] Affidavit of B Watkins sworn 24 August 2020, 7 ‑ 8.
The revocation application also raises a separate issue that will need to be addressed if the grant of letters of administration is to be amended. That is, Ms Watkins will not be able to return the original grant to the court as it was held by her former solicitor who has since sold his business. The solicitors who took over the firm advised Ms Watkins they do not hold the original grant and that the file would have been destroyed due to its age.[8]
Notice of the revocation application
[8] Affidavit of B Watkins sworn 24 August 2020, 7.
Signed consents to the revocation application were provided by each of the parties to the Family Provision proceeding, with the exception of Ms Lee.
The court can infer that Ms Lee through her solicitor, Mr Galic of TGC Lawyers, is on notice of the revocation application. By correspondence sent from TGC Lawyers to the court on 22 December 2020, the court was informed that Ms Lee sought to be heard in relation to the revocation application and that Mr Galic was awaiting instructions. By further email correspondence received by the court on 8 January 2021, Mr Galic advised that he had received instructions from Ms Lee that day and a formal response would be provided to the court by close of business on 11 January 2021.
No response was provided by Mr Galic on behalf of Ms Lee on 11 January 2021 or otherwise. Subsequent communications sent to TGC Lawyers by the court requesting an update on the status of the matter were sent on 21 January, 15 February and 23 February 2021. No further correspondence has been provided by TGC Lawyers to the court in relation to this matter to date.
By letter dated 23 March 2021, I directed (among other things) that by 4.00 pm on 1 April 2021, TGC Lawyers was to advise the court whether Ms Lee opposed or consented to the revocation application. I also specified that if Ms Lee opposed the revocation application, TGC Lawyers was to provide the grounds on which the revocation application was opposed and whether a hearing was sought in respect of the revocation application. TGC Lawyers were advised that if a response was not received within the timeframe prescribed, the revocation application would be dealt with on the papers. As at the date of preparing these reasons TGC Lawyers has not responded to any communication following the communication sent on 8 January 2021. Accordingly, I will now deal with the revocation application on the papers on an undefended basis.
Legal framework and principles
The circumstances of this case require the following to be addressed. First, the power of a registrar to amend or revoke a grant of letters of administration. Secondly, the circumstances in which a grant of letters of administration may be amended or revoked. Thirdly, the appropriate method by which a grant is to be amended or revoked.
Power of a registrar to amend or revoke a grant of letters of administration
The power of the court to revoke a grant of probate and administration is well settled. This court has inherent jurisdiction in relation to the granting or revoking of probate of wills and letters of administration pursuant to s 18 of the Supreme Court Act 1935 (WA).
The specific power to revoke a grant of letters of administration arises under the Administration Act 1903 (WA). Section 29(1) of the Administration Act provides:
Where the 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.
The power may be exercised by a registrar pursuant to r 4 and r 35 of the Non-contentious Probate Rules 1967 (WA) (NCPR), which respectively provide as follows:
4. Jurisdiction of the Registrar
(1)The Registrar may exercise the powers of a Judge in Chambers in and about the granting of probate and administration, and in and about the granting to the Public Trustee of orders to administer the estates of deceased persons, and may transact all such business and exercise all such powers and authorities in respect of voluntary or non‑contentious probate jurisdiction as under the Act, the Supreme Court Act 1935, the Public Trustee Act 1941, the Rules of the Supreme Court 1971, or these rules, may be transacted or exercised by a Judge in Chambers except in respect of the following proceedings and matters, that is to say ‑
(a)applications and orders under s 26(2) and (6) of the Act;
(b)subject to the provisions of r 35(1) and (2) applications and orders under s 29 of the Act, and
(c)applications under s 64 of the Act to remove caveats.
(2)Nothing contained in these rules derogates from or limits the jurisdiction or powers conferred by the Act on a Registrar.
…
35.Amendment and revocation of grant
(1)Where the Registrar is satisfied that a grant should be amended or revoked, he may make an order accordingly.
(2)Except in special circumstances, a grant shall not be amended or revoked under this rule other than on the application or with the consent of the person to whom the grant was made.
…
The jurisdiction of a registrar to revoke a grant of letters of administration was confirmed by EM Heenan J in The Estate of Erminia Agnes Rogers v Rogers [2009] WASC 358 at [21]:
Clearly it is the case that an application for revocation of a grant of administration made under s 29 of the Act and one to which the administrator consents, may be granted by a Registrar. In addition, in exceptional circumstances, such an order may be made by a Registrar even if the administrator does not consent.
Accordingly, I am satisfied that a registrar has jurisdiction to amend or revoke a grant of letters of administration in two circumstances. First, where the administrator has made the application for a grant to be amended or revoked, and consents to the application. Secondly, where an application to amend or revoke a grant has been made, there is no consent but there are special circumstances. As the revocation application has not been made by or on behalf of Ms Lee, and Ms Lee has not consented to the same, I turn now to consider what will constitute 'special circumstances'.
Special circumstances
The nature of the court's power to revoke a grant of letters of administration under s 29 of the Administration Act, and the considerations guiding the exercise of such jurisdiction, were canvassed by EM Heenan J in Rogers. In that case, his Honour found there are a variety of circumstances in which revocation of a grant of probate or letters of administration may be made, which may broadly be divided into two categories.[9] The second category, relevant to this revocation application, includes revocations made necessary or desirable to ensure the due administration of the estate.[10] His Honour explained that the ultimate purpose of the court, with respect to the power of revocation, is to ensure the due and proper administration of the estate and of the interests of the beneficiaries. The principles summarised by EM Heenan J in Rogers have been relied upon in subsequent proceedings before this court.[11]
[9] The Estate of Erminia Agnes Rogers v Rogers [23].
[10] The Estate of Erminia Agnes Rogers v Rogers [23].
[11] See Smith v Partridge [2018] WASC 128 [26]; Re Banning [2018] WASC 313 [37]; Re Estate of Joseph William Stewart [2020] WASC 385 [17].
The solicitors for Ms Watkins refer to the decision of EM Heenan J in Brown v Milson [2012] WASC 36, which is said to address a similar issue to that which arises in this case. In Brown, the plaintiff contended a revocation of the grant of probate was required because it was impractical to obtain the signature of one of the joint executors, which signature was required to complete the sale of a property and to adequately administer the estate.[12]
[12] Brown v Milson [5] ‑ [11], [24].
EM Heenan J was satisfied that such circumstances warranted a revocation of the grant to the executor whose signature it was impractical to obtain.[13] This was due to the demonstrated inability or neglect of the executor to comply with his obligations in the administration of the estate, in particular, his obligation to facilitate the sale of the property. The recalcitrant executor could not be found and was apparently unresponsive to all reasonable attempts to communicate with him.[14]
[13] Brown v Milson [32].
[14] Brown v Milson [25].
A comparable finding was made by Pritchard J in Smith v Partridge [2018] WASC 128, when her Honour observed that one of the instances in which it may be appropriate to revoke a grant is where the grantee has persistently neglected or refused to carry out due administration of the estate.[15] In Smith v Partridge, Pritchard J considered it appropriate to revoke the grant of probate to the executor because she had neglected her duties to administer the estate by, among other things, failing to communicate with the next friend appointed to her in the proceeding and failing to respond to court orders, including to advise the court of the position with respect to the grant of probate.[16]
[15] Smith v Partridge [27].
[16] Smith v Partridge [37].
It is relevant that in these cases the court ordered revocation of the respective grants in the absence of consent from the executors or administrators from whom the grants were revoked. I accept that an inability or neglect on the part of an administrator or executor to fulfil their obligations in the administration of an estate may constitute a special circumstance, such that revocation of the grant to the neglecting party is necessary to ensure due and proper administration of the estate.
The appropriate method of amending or revoking a grant
As noted by EM Heenan J in Brown at [27], while it is important notice of a revocation application be given if it is possible or practical to do so, revocation of a grant can be made without notice to the grantee, where an attempt to contact them would be futile and would frustrate the purpose of the application.
In considering whether there was cause for a grant to be revoked in Brown, and in dealing with the potential practicalities if so, EM Heenan J referred to the decision of In the Estate of Alice Maud Mack [1962] NSWR 1029.[17] In that case, a grant of probate had been made to several executors, one of which later became of unsound mind and another left the jurisdiction without embarking on administration.[18] In determining an application, Myers J found that:
Where one of several executors becomes incapable, the proper course is to revoke the grant and make a fresh grant to the others, reserving leave to the incapable executor to join in the grant on recovering his capacity.
[17] Brown v Milson [20].
[18] Brown v Milson [20].
In Brown, EM Heenan J ordered that the grant of probate be amended by revoking the grant to the first-named executor (who was uncontactable and had neglected his obligations), but otherwise the grant be confirmed so it took effect as a grant solely to the other executor, with leave reserved to the first-named executor to reapply for a double grant.[19]
[19] Brown v Milson [32]. See also Tsaknis v Liburne [2010] WASC 152.
Once an order is made for the amendment of a grant, r 35(3) of the NCPR provides that the original grant shall be produced to the Registry for notation, or its non-production accounted for. However, I accept that there is scope for the court to revoke a grant that has been lost or mislaid, notwithstanding that it cannot be produced.[20]
[20] D'Costa RR, Teverson P, Synak T, Tristram and Coote's Probate Practice (31st ed, 2015) 627.
Disposition
Pursuant to s 29 of the Administration Act, and r 4 and r 35 of the NCPR, I am satisfied that a registrar has jurisdiction to revoke or amend a grant of letters of administration.
With reference to r 35(2) of the NCPR, in all of the circumstances deposed to by Ms Watkins, I am satisfied that there are special circumstances that warrant the revocation of the grant to Ms Lee, and amendment of the grant so that it takes effect as a grant solely to Ms Watkins. That is, I am satisfied on the material before the court that Ms Lee has neglected or is unable to carry out her duties as an administrator, by neglecting to do what is necessary for the administration of the estate, without sufficient reason. Accordingly, in my view, it is necessary for the due and proper administration of the estate for Ms Lee to be removed as an administrator. The matters that led me to form this conclusion are as follows.
First, on the material before the court, Ms Lee's whereabouts remains unknown. I am satisfied that there would be practical difficulties in locating Ms Lee for the purposes of attending to the sale of the Baldivis property.
Secondly, Ms Lee has failed to respond to the court's request to advise it of her position with respect to the revocation application. Ms Lee through her solicitor is on notice of the revocation application and has been provided with the opportunity to participate. Despite repeated communications from the court, Ms Lee through her solicitor has failed to advise the court whether she consents to, or opposes, the revocation application.
Thirdly, the evidence reveals that there are proper grounds to be concerned as to Ms Lee's capacity to administer the estate. A next friend was appointed to Ms Lee in the Family Provision proceeding, which Ms Watkins suggests raises issues as to Ms Lee's capacity to sign the documents necessary to effect the sale of the Baldivis property. The appointment of a next friend in a separate proceeding will not, of itself, constitute a special circumstance, or render an administrator incapable. A finding that Ms Lee lacks capacity to administer the estate or sign documents necessary to effect the sale of the Baldivis property would go beyond the scope of the revocation application. However, it may provide some explanation for the otherwise unsatisfactory manner in which Ms Lee has participated in the sale of the Baldivis property and in administering the estate, and her failure to communicate with Ms Watkins. In any event, my findings do not turn on this point and it need not be dealt with further.
Fourthly, the matters set out in the above paragraphs pose an impediment to effecting the sale of the Baldivis property and the terms of the settlement deed, by reason of the requirement under s 187(3) of the Transfer of Land Act for Ms Lee to sign documentation in her capacity as an administrator of the estate.
Fifthly, I understand that rates remain unpaid and there is a real possibility of the City of Rockingham seeking to sell the Baldivis property under s 6.64 of the Local Government Act. Ms Watkins contends that it would be preferable for an agent be appointed to effect the sale and for the Baldivis property not to be sold as a forced sale.
In considering these matters, together with the overarching purpose of the court with respect to the power of revocation, being to ensure the due and proper administration of the estate and the interests of the beneficiaries, I am satisfied these are special circumstances and it is appropriate the grant to Ms Lee be revoked, notwithstanding her lack of consent.
With respect to the provision of notice of the revocation application to Ms Lee, I consider sufficient notice has been provided given her earlier indication to Mr Galic (communicated to the court) that she sought to be heard with respect to the revocation application. In any event, it appears any requirement for further notice would be impracticable and likely ineffectual, given the apparent difficulty associated with contacting Ms Lee and the opportunities previously afforded to her solicitor to advise the court as to Ms Lee's position.
With reference to r 35(1) of the NCPR, I am satisfied the grant of letters of administration should be amended by revoking the grant to Ms Lee, but otherwise confirming the grant so that it takes effect as a grant solely to Ms Watkins. I consider it appropriate to reserve leave to Ms Lee to reapply for a grant.
With reference to r 35(3) of the NCPR, Ms Watkins has accounted for the non-production of the original grant in her affidavit.
Conclusion and orders
For these reasons, I propose to make orders in the following terms:
1.The grant of letters of administration dated 14 April 2010 be amended by revoking the grant to the first named administrator, Tania Jane Lee, but otherwise be confirmed so that it takes effect from today as a grant solely to Belinda Jane Watkins.
2.Leave be reserved to Tania Jane Lee to reapply for a double grant to be made to her with Belinda Jane Watkins.
3.There be liberty to apply.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MH
Associate to Acting Registrar Hosking
18 JUNE 2021
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