Re Estate Of Joseph William Stewart (Dec)
[2020] WASC 385
•23 OCTOBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE ESTATE OF JOSEPH WILLIAM STEWART (DEC) [2020] WASC 385
CORAM: ALLANSON J
HEARD: 9 OCTOBER 2020
DELIVERED : 9 OCTOBER 2020
PUBLISHED : 23 OCTOBER 2020
FILE NO/S: PRO 6819 of 2017
MATTER: IN THE MATTER of the Estate of Joseph William Stewart late of 98 Lakelands Road, North Barragup, Western Australia deceased
Catchwords:
Probate and administration - Administration Act 1903 (WA) - Where persistent failure by administrator to pass accounts - Where hearing by judge on report of Principal Registrar - Whether administration should be revoked
Legislation:
Administration Act 1903 (WA), s 29, s 43
Non-Contentious Probate Rules 1967 (WA), r 37
Result:
Administration revoked
Category: B
Representation:
Counsel:
Administrator : No appearance
Beneficiary : N Siegwart
Solicitors:
Administrator : No appearance
Beneficiary : Birman & Ride
Case(s) referred to in decision(s):
Dear v Rich (As Administratrix of the Estate of J H Myslis, dec) (1920) 22 WALR 69
Estate of Rogers v Rogers [2009] WASC 358
Re Ellis; Ellis v Ellis [2015] WASC 77
Stewart v Stewart [2019] WASC 432
ALLANSON J:
Introduction
On 18 September 2020, the Principal Registrar gave notice to Mr Ian Alexander Stewart, as the administrator of the Estate of Joseph William Stewart, in these terms:
1.On 27 December 2017, administration of the estate of Joseph William Stewart, late of 98 Lakelands Road, North Barragup, Western Australia, deceased, who died intestate, was made to you, Mr Ian Alexander Stewart.
2.On 31 March 2020, a Registrar caused a notice to be issued to you to pass the accounts of the estate of Joseph William Stewart, late of 98 Lakelands Road, North Barragup, Western Australia, deceased, in accordance with the Non-contentious Probate Rules 1967 (WA) Rule 37 by 8 May 2020.
3.One month passed from the expiration of the period fixed by the Registrar, and you had neglected to comply with the notice.
4.By notice dated 11 June 2020, you were given notice pursuant to the Administration Act 1903 (WA) s 44(1), that you had neglected to pass accounts within the period prescribed. By that notice, you were also directed to immediately attend to pass the accounts.
5.To date you have neglected to attend to the passing of the accounts.
Notice of Hearing
1.The Administration Act 1903 (WA) s 29(1) provides that where administration of the estate of the person has been granted, the Court may 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.
2.I NOW GIVE YOU NOTICE THAT at a hearing before a Judge on Friday, 9 October 2020 at 10.30 am, the Court will consider, on its own motion on the report of the Principal Registrar, whether to revoke your administration of the estate of Joseph William Stewart, late of 98 Lakelands Road, North Barragup, Western Australia, deceased.
3.If you do not attend the hearing, orders may be made in your absence. It is suggested that you seek legal advice in relation to this matter.
Ian Stewart did not appear at the hearing or otherwise communicate with the court. I gave leave for Peter McVeigh Stewart, as the administrator of the Estate of Ruth Peters Stewart, to be heard.
Background
In his affidavit in support of the application for the grant of letters of administration, sworn 24 November 2017, Ian Stewart deposed to the following facts:
(1)Joseph William Stewart died intestate on 1 August 2008, leaving a wife and five children;
(2)the children of the deceased were Ian Alexander Stewart, Peter McVeigh Stewart, David Thomas Stewart, Paul Russell Stewart, and Eileen Ann Stewart;
(3)the deceased left estate within Western Australia having a gross value of $39,130.80;
(4)the only person entitled in distribution to the estate of the deceased under the Administration Act was his surviving wife, Ruth Peters Stewart;
(5)Ruth Peters Stewart died on 12 September 2017 without having applied for administration in the estate of the deceased. Ian Stewart was nominated as her executor and sole beneficiary.
Ian Stewart sought administration of the Estate of the deceased, Joseph William Stewart, as the sole beneficiary in the estate of Ruth Peters Stewart.
In 2018, Peter Stewart and David Stewart commenced proceedings to revoke the grant of probate of the will of Ruth Peters Stewart.
On 6 December 2019, after trial, Curthoys J pronounced against the validity of the will of Ruth Peters Stewart, dated 14 September 2009, and revoked and cancelled the grant of probate to Ian Stewart, made on 25 October 2017.
The plaintiffs in that action also sought orders, including that the grant of letters of administration of the Estate of Joseph William Stewart be revoked and cancelled. Curthoys J did not make the further orders sought, stating that there was no evidence before him as to Ian Stewart's conduct of that administration.[1]
[1] Stewart v Stewart [2019] WASC 432 [30].
On 30 December 2019, Peter McVeigh Stewart was granted letters of administration of the estate of Ruth Peters Stewart.
On 20 February 2020, the solicitors for Peter Stewart wrote to Ian Stewart, requesting information, including a copy of the accounts of the Estate of Joseph William Stewart, and an updated statement of assets and liabilities. They gave notice that if they did not receive a satisfactory response, they would request the court to require Ian Stewart to pass the accounts of the Estate.
On 6 March 2020, the solicitors for Peter Stewart wrote to the court requesting that the court require Ian Stewart to comply with r 37 of the Non-Contentious Probate Rules 1967 (WA).
The court issued notices on 31 March 2020 and 11 June 2020, requiring Ian Stewart to pass the accounts of the Estate. He has not complied.
The questions which arise, on the report of the Principal Registrar, are whether the court can, and should, now order revocation of the grant of probate of its own motion.
The procedure for passing accounts
By s 43 of the Administration Act, an administrator is under a duty to:
(a)collect and get in the real and personal estate of the deceased and administer it according to law;
(b)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;
(c)when required to do so by the court, deliver up the grant of probate or administration to the court.
In Re Ellis; Ellis v Ellis, Heenan J said:
… The executors or personal representatives of deceased estates are just one species of parties who have an obligation to account and in their case to interested beneficiaries for the administration and distribution of the estate. Conceptually, there are no differences in the principles applying to the obligation of personal representatives to account nor to the availability of various procedures or remedies requiring them to account or the nature of the orders or directions which may be made as to the manner of conducting the account. However, in view of the clear obligation of personal representatives of a deceased estate to account, provisions are available for an account to be taken without proceedings or the need to establish the duty to account or the entitlement of the claimant to payment of whatever may be found due on the account ...
An account of this nature, or this procedure of 'passing accounts', is available on demand or order by a registrar and is not preceded by an originating process or order of a judge as to the nature, extent or manner of conducting the account, although an account of that nature with accompanying orders and directions could occur if the general jurisdiction of the court for such a remedy were to be invoked.[2]
[2] Re Ellis; Ellis v Ellis [2015] WASC 77 [88] - [89].
Revoking the administration
By s 29(1) of the Administration Act:
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.
It can be a sufficient ground to remove an administrator that 'she has omitted, without any excuse being suggested, to pass the accounts which it is her duty to pass under the Act'.[3]
[3] Dear v Rich (As Administratrix of the Estate of J H Myslis, dec) (1920) 22 WALR 69, McMillan CJ, 71.
In Estate of Rogers v Rogers, Heenan J said:
There is a wide variety of circumstances under which revocation of a grant of probate or letters of administration, which have not been the subject of proof in solemn form, may be made. Broadly, these may be divided into two categories. The first being where it is discovered that there is some error which has been made in the grant of representation or where the particular grant should not have been made (for example, the discovery of a later will, or of a subsequent marriage which revoked the will in question). The second category includes revocations made necessary or desirable to ensure the due administration of the estate such as, for example, where the grantee becomes sick or disabled, or has disappeared. The ultimate purpose of the court is to ensure the due and proper administration of the estate and of the interests of the parties beneficially entitled to it.[4]
[4] Estate of Rogers v Rogers [2009] WASC 358 [237] (Citations omitted).
Heenan J noted that the court must be cautious and sparing in the exercise of the power under s 29, without allowing the incumbent administrator the opportunity to repair or remedy any defect and progress promptly with the due administration.[5] His Honour continued:
In this State the common response, when complaints are made to the court about delays or failures by a personal representative to proceed with due administration, has been to give notice to the executor or administrator to pass accounts under s 44(1) of the Administration Act. In many, if not most, of such cases that is sufficient to spur a dilatory personal representative to act but in a number of cases the notice is ignored. The next step in the process, at least as shown by past practice, has been to institute proceedings against the personal representative under s 44 with a view to obtaining an order for him or her to file accounts under s 44(2)… While it is certainly possible for that procedure to be pursued, I consider that in many cases it would be more efficient, and involve better chances of prompt administration, if, on the failure to pass accounts, an application such as this were to be made even if this is as the result of the referral to a Judge by a Registrar under r 4(4) of the Non-Contentious Probate Rules.[6]
[5] Estate of Rogers v Rogers[32].
[6] Estate of Rogers v Rogers [33].
Notice has now been given twice to Ian Stewart and there has been neither compliance nor other response.
The Estate is apparently of modest value. In my opinion, in this case the preferable way to ensure the due and proper administration of the Estate, and of the interests of the parties beneficially entitled to it, is to revoke the administration.
The court will make the following orders:
1.Peter McVeigh Stewart (in his capacity as administrator of the estate of Ruth Peters Stewart) have leave to appear.
2.The grant of letters of administration of the Estate of Joseph William Stewart made by the Supreme Court of Western Australia on 27 December 2017 to Ian Alexander Stewart be revoked and cancelled.
3.Ian Alexander Stewart shall, within 10 days of service of these orders, deliver to the Central Office of the Supreme Court of Western Australia the grant of letters of administration dated 27 December 2017.
4.Upon the application of any party, Ian Alexander Stewart shall appear before a Registrar of the Supreme Court of Western Australia at a date to be fixed for examination on oath or affirmation by or at the instance of Peter McVeigh Stewart (in his capacity as administrator of the Estate of Ruth Peters Stewart) to answer questions about the nature and extent of his administration and the location of unadministered assets or documents.
5.Ian Alexander Stewart pay the costs of Peter McVeigh Stewart (in his capacity as administrator of the Estate of Ruth Peters Stewart) of the hearing of 9 October 2020.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Honourable Justice Allanson23 OCTOBER 2020
3
2