Re the Estate of Andrew Leslie Kent
[2024] WASC 44
•28 FEBRUARY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE THE ESTATE OF ANDREW LESLIE KENT; EX PARTE STRATTON-KENT [2024] WASC 44
CORAM: HILL J
HEARD: 12 JANUARY 2024; WRITTEN SUBMISSIONS 18 & 22 JANUARY 2024
DELIVERED : 28 FEBRUARY 2024
FILE NO/S: PRO 8058 of 2023
MATTER: IN THE MATTER of the Estate of Andrew Leslie Kent late of Mosman Park, Western Australia, deceased
BETWEEN: MARIA VIOLET STRATTON-KENT
Applicant
ALEXANDER KENT AND LAURA KENT
Interested parties
Catchwords:
Wills - Probate - Appeal against order declining to make a grant of letters of administration until other proceedings are heard and determined - Whether applicant only party entitled to grant - Proper construction of the Administration Act 1903 - Whether proceedings commenced by interested parties are proceedings within the terms of s 35 of the Administration Act 1903 - Whether commencement of second proceedings is a reason to decline to make grant of letter of administration
Legislation:
Administration Act 1903 (WA) s 14, s 25, s 35
Non-contentious Probate Rules 1967 (WA) r 4, r 5
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Applicant | : | R Nash |
| Interested parties | : | M Solomon (written submissions signed by EM Heenan SC) |
Solicitors:
| Applicant | : | Kershaw Legal |
| Interested parties | : | Solomon Hollett Lawyers |
Case(s) referred to in decision(s):
Lacey v A-G (Qld) [2011] HCA 10; (2011) 242 CLR 573
Larussa v Carr as administratrix of the estate of Larussa [2024] WASCA 16
Re Estate of Nicholls [2003] WASC 85
Re The Estate of Allan John Young; Ex parte Young [2015] WASC 409
The Public Trustee in and for the State of Western Australia v Seow [2003] WASC 62
Wheatley v Edgar [2003] WASC 118
HILL J:
By notice of appeal filed 3 January 2024, the applicant appeals against the order of the Acting Principal Registrar on 2 January 2024 (Order) that her application for the grant of letters of administration of her late husband's estate be determined after the determination of related proceedings, being CIV 2454 of 2023 (Initial Proceedings).
There is one ground of appeal, namely that the applicant, as the widow of Andrew Kent (Deceased), is the only person entitled in distribution to his estate pursuant to s 14 of the Administration Act 1903 (WA) (Administration Act) and, as a result, is the only person entitled to a grant of administration under s 25 of the Administration Act. The applicant seeks orders for a grant of letters of administration of the Deceased's estate to her.
The appeal was opposed by two of the children of the Deceased (interested parties). The interested parties say there is a conflict in the applicant being granted letters of administration, due to what they say are complexities associated with the Deceased's estate. For this reason, they commenced the Initial Proceedings seeking orders pursuant to s 35 of the Administration Act for an independent party to be appointed as interim administrator and say the Initial Proceedings should be heard and determined prior to any grant of letters of administration being made.
Following the hearing of this matter, the parties were given leave to file additional submissions addressing the proper construction of s 35 of the Administration Act. During this period, the interested parties commenced a second set of proceedings (CIV 1044 of 2024) (Second Proceedings), in which they seek orders for their attorney to be granted letters of administration in solemn form of the Deceased's estate.
For the reasons set out below, I do not accept that the applicant is the only person entitled in distribution to the Deceased's estate nor, as a result, the only person entitled to a grant of letters of administration. The interested parties have now commenced proceedings seeking that their attorney be granted letters of administration. I do not consider that any grant should be made in the non-contentious jurisdiction of the court until the contentious proceedings have been resolved. On this basis, it is my view that the applicant's appeal should be dismissed.
Factual background
The Deceased died on 10 September 2023. Prior to his death, the Deceased resided with the applicant in Mosman Park. At the time of his death, the Deceased did not have a valid will. There is no dispute that the Deceased died intestate.
The interested parties are the children of the Deceased from a previous marriage, who both live overseas. The Deceased had a third child, whose mother is the applicant, who lives in Western Australia. None of the Deceased's children have consented to the applicant's application.
The updated list of assets and liabilities of the Deceased's estate filed by the applicant discloses that at the date of his death:[1]
(a)the Deceased had moveable property within Western Australia, comprising the personal effects of the Deceased, with an estimated value of $5,000;
(b)the Deceased had moveable property located outside Western Australia (including shares), with an estimated value of $11,681,196.53;
(c)the Deceased had no immovable property in Western Australia but had immoveable property located outside Western Australia with an estimated value of $3,975,000; and
(d)the only debts of the Deceased's estate are located outside Western Australia, being a loan to the National Australia Bank estimated to be $4,190,000, and an uncertain amount owed to the Australian Taxation Office.
[1] Affidavit of Maria Violet Stratton-Kent dated 18 December 2023, 'MVSK-3'.
The interested parties do not accept this is an accurate summary of the assets and liabilities of the Deceased's estate. They contend there are additional moveable assets within Western Australia, including the balance of the superannuation fund of the Deceased, with an estimated balance of almost $2.5 million.[2]
[2] Draft statement pursuant to Non-contentious Probate Rules 1967 (WA) r 9B(1) annexed to letter from Solomon Hollett Lawyers dated 28 November 2023.
Procedural background
On 9 November 2023, the applicant filed a notice of motion for a grant of letters of administration. Notice of the motion was given to the children of the Deceased, including the interested parties.
In support of the application, the applicant filed three affidavits: an affidavit sworn on 9 November 2023 which annexed (among other things) a list of the assets and liabilities of the estate, a second affidavit sworn 16 November 2023, and a third affidavit sworn 18 December 2023 annexing an updated list of the assets and liabilities of the estate.
On 15 December 2023, a directions hearing was listed before the Acting Principal Registrar. The applicant and the interested parties were both represented at the hearing. During the hearing, counsel for the interested parties informed the court that he had instructions to 'bring [a] section 35 application on an urgent basis'.[3] In that context, at the conclusion of the directions hearing, the Acting Principal Registrar ordered that:[4]
On 22 December 2023, Letters of Administration will be granted to the applicant unless ordered otherwise.
[3] ts 9 (15 December 2023).
[4] Orders of Acting Principal Registrar dated 15 December 2023.
On 21 December 2023, the solicitors for the interested parties wrote to the court advising that the Initial Proceedings had been filed that day and requesting that letters of administration not be granted to the applicant while this application was on foot.
On 2 January 2024, the Order (which is the subject of this appeal) was made by the Acting Principal Registrar that the application for Letters of Administration filed on 9 November 2023 be determined after the determination of the Initial Proceedings.
The applicant filed an appeal notice on 3 January 2024, together with a certificate of urgency and a further affidavit sworn 3 January 2024.
The appeal came for hearing on 12 January 2024. At the conclusion of the hearing, I made orders for the interested parties to file and serve submissions in respect of the proper construction of s 35 of the Administration Act, and for the applicant to file and serve submissions in reply.
On 17 January 2024, the solicitors for the interested parties informed the court that the Second Proceedings had been commenced seeking a grant in solemn form of letters of administration, and that a caveat had been filed in this estate.
Given this development, I gave both parties the opportunity to file submissions in relation to the impact of the Second Proceedings on the appeal. Submissions were filed on 18 January 2024 (by the applicant) and 19 January 2024 (by the interested parties).
Parties' submissions
At the hearing, counsel for the applicant submitted that the assets and liabilities of the estate located within Western Australia were substantially less than $472,000. Given the spouse of a deceased person is entitled to the first $472,000 of an intestate estate in priority to any children of the deceased,[5] the applicant submits she is the only person entitled to a grant of letters of administration.
[5] Administration Act 1903 (WA) s 14.
The applicant contended the grant of letters of administration to the applicant should not have been delayed because of the commencement of the Initial Proceedings. This was because, in her submission, the court did not have power to grant the orders sought in the Initial Proceedings. The applicant contended that before a court could appoint a manager or receiver under s 35 of the Administration Act, it was a necessary precondition that there be a pending probate action.[6] Counsel submitted that no probate action existed at the date of the Order and accordingly, the Order should not have been made.
[6] The Public Trustee in and for the State of Western Australia v Seow [2003] WASC 62 [23].
The applicant submitted that the commencement of the Second Proceedings did not assist the interested parties. The applicant emphasised that the order of the Acting Principal Registrar on 15 December 2023 for there to be a grant of letters of administration to the applicant. That order is not the subject of an appeal. In these circumstances, the applicant says that the Second Proceedings commenced by the interested parties are an abuse of process. This is because if the orders sought were made in the Second Proceedings, there would be inconsistent orders for the grant of letters of administration: one to the applicant and the other to the representative of the interested parties.
The interested parties do not accept that the Deceased's estate is less than $472,000, or that the applicant is the only person entitled to letters of administration. They deny that the Second Proceedings are an abuse of process. This is because even if a grant of letters of administration in common form had been granted to the applicant, this is revocable[7] and can be the subject of proceedings to revoke the grant. They submit that the Second Proceedings, which seek a grant of letters of administration in solemn form, invokes the court's contentious probate jurisdiction and raises for determination the issue as to whom a grant should be made. For these reasons, the interested parties say that the court cannot rely on its powers under the Non‑contentious Probate Rules 1967 (WA) (Non‑contentious Probate Rules) to grant letters of administration to the applicant, as the matter is now the subject of a 'probate action' under O 73 of the Rules of the Supreme Court 1971 (WA) (Rules) and is now contentious.
[7] Wheatley v Edgar [2003] WASC 118 [18].
Nature of appeal
Rule 5 of the Non-contentious Probate Rules deals with appeals to a judge from a decision of a registrar. It provides that:
(1)A person aggrieved by an order, decision or requirement of the Registrar may appeal therefrom to a Judge in Chambers.
(2)An appeal shall be by notice in writing to attend before the Judge and shall be filed in the Registry within 5 days after the order, decision or requirement complained of, or within such further time as may be allowed by a Judge or the Registrar.
(3)A notice of appeal shall be served on every person, other than the appellant, who appeared or was represented before the Registrar.
(4)Where a notice of appeal is required to be served, there shall be at least 2 clear days between service of the notice and the day of hearing.
An appeal to a judge pursuant to r 5(1) of the Non‑contentious Probate Rules is an appeal de novo.[8] The judge hears the matter afresh and may overturn the Registrar's decision regardless of error.[9]
[8] Re The Estate of Allan John Young; Ex parte Young [2015] WASC 409 [39].
[9] Lacey v A-G (Qld) [2011] HCA 10; (2011) 242 CLR 573 [57].
In considering this appeal, I have considered afresh all of the matters which are relevant to the decision as to whether a grant of letters of administration to the applicant should be made now, or delayed until after resolution of either or both of the Initial Proceedings and Second Proceedings.
Legal principles
Section 14 of the Administration Act deals with the entitlements in distribution where a person dies intestate. Relevantly, where a person dies leaving a wife and children, the Table in s 14 provides:
(a)[W]here the net value of the intestate property (other than the household chattels) does not exceed the sum of $472 000 (or, if there is a declared sum for item 2 applicable to the intestate, that sum) — the surviving husband or wife shall be entitled to the whole of the intestate property;
(b)where the net value of the intestate property (other than the household chattels) exceeds the sum of $472 000 (or, if there is a declared sum for item 2 applicable to the intestate, that sum) — the surviving husband or wife shall (in addition to the household chattels) be entitled to the sum of $472 000 (or, if there is a declared sum for item 2 applicable to the intestate, that sum), absolutely, together with interest on that sum in accordance with subsection (4) and, of the residue, the surviving husband or wife shall be entitled to one third and the issue shall be entitled in accordance with subsection (2b) to the other two thirds.
…
(2)For the purposes of the Table —
(a)household chattels means articles of personal or household use or adornment;
(b)the net value of the intestate property is the net value of that property at the date of the death of the intestate.
The court has power, under s 25 of the Administration Act, to grant administration of an intestate estate to any person being 18 years of age and entitled in distribution to the estate of the intestate, or to any other person 'if there be no such person entitled as aforesaid resident within the jurisdiction and fit to be so entrusted'.[10] Where a person entitled to letters of administration is out of the jurisdiction but has a person within the jurisdiction who has been appointed under power of attorney to act on their behalf, s 34 of the Administration Act enables administration to be granted to the attorney on behalf of that person on such terms and conditions as the court thinks fit.
[10] Administration Act 1903 (WA) s 25(1).
Pursuant to s 35 of the Administration Act:
The Court may, pending any proceedings touching the validity of any will, or for obtaining, recalling, or revoking any probate or administration, appoint an administrator of the personal estate and a receiver of the real estate of any deceased person, at such remuneration and with such full or limited powers as the Court may think fit.
The Non-contentious Probate Rules delegates the power exercisable by a judge in chambers in respect of the voluntary or non‑contentious probate jurisdiction to a registrar of this court.[11] The jurisdiction does not extend to contentious probate matters.
[11] Non-contentious Probate Rules 1967 (WA) r 4.
Nothing in the Administration Act, the Interpretation Act 1984 (WA) or the Non-contentious Probate Rules defines what is meant by 'non-contentious' or 'contentious' probate proceedings. In Re Estate of Nicholls,[12] Barker J concluded that the court's 'voluntary or non‑contentious probate jurisdiction' can only be defined negatively. His Honour stated that 'the best that can be said is that a probate matter is "non-contentious" if it is not "contentious"'.[13] His Honour went on to express the view that a matter will be considered 'contentious' if it is or will be the subject of a 'probate action' as defined in O 73 of the Rules, or is not within the jurisdiction of a registrar under r 4 of the Non‑contentious Probate Rules.[14]
[12] Re Estate of Nicholls [2003] WASC 85.
[13] Re Estate of Nicholls [19].
[14] Re Estate of Nicholls [19].
Disposition
I accept that at the time of his death, the Deceased was domiciled in Western Australia and had property of at least $5,000 in personal effects in Western Australia. As a result, I accept and find this court has jurisdiction to make orders for the grant of letters of administration to a person who is entitled in distribution to the Deceased's estate.
The primary issue between the parties is whether, in considering who is entitled to a grant of letters of administration, the court considers the net value of the entirety of the Deceased's estate or only those assets located within Western Australia. This turns on the proper construction of s 14 of the Administration Act.
The principles of statutory construction are well known. As recently restated by Buss P and Vaughan JA in Larussa v Carr as administratrix of the estate of Larussa:[15]
The task of statutory construction involves attribution of meaning to statutory text. It begins and ends with the statutory text as a whole. The text must be considered in its context (referring to 'context' in its widest sense) and having proper regard to the purpose of the provision. The purpose of legislation must be derived objectively from the statutory text and not from any assumption about the desired reach or operation of the provision. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.
[15] Larussa v Carr as administratrix of the estate of Larussa [2024] WASCA 16 [59].
The text of par 2(a) and (b) of the Table in s 14 of the Administration Act refers to the 'net value of the intestate property'.The text does not limit the net value of the property to assets located in Western Australia. There is nothing in the text of the Table that would support a conclusion that any such limitation should be imposed.
This construction is supported by its context. The text of these paragraphs of the Table can be contrasted with the text of s 6 of the Administration Act which confers power on the court to grant administration of a deceased's estate. Section 6 provides that:
The Court shall have jurisdiction to grant probate of the will or administration of the estate of any deceased person leaving property, whether real or personal, in Western Australia.
That is, in considering whether the court has jurisdiction to grant probate or letters of administration, the court must consider whether the deceased had any property in Western Australia. Once the court has jurisdiction, the grant will extend to all of the deceased's property except immoveable property. This is consistent with the position in Australia that the entitlements to the moveables of a deceased's estate is governed by the law of domicile at the time of the deceased's death.[16]
[16] Davies M, Bell A, Le Gay Brereton P and Douglas M, Nygh's Conflict of Laws in Australia (LexisNexis Butterworths, 10th ed, 2020) [38.4].
For the following reasons, I do not accept the applicant's submission that she is the only person entitled to administration of the Deceased's estate.
First, on the evidence before the court, the net value of the Deceased's estate is significantly in excess of $472,000. Given this conclusion, it is unnecessary for me to express any view as to whether the Deceased's superannuation fund does or does not form part of the Deceased's estate.
Second, the applicant's submission is inconsistent with the initial affidavit evidence of the applicant which stated that there were four people who had a right to administration of the Deceased's estate, namely the applicant and the Deceased's three children.[17] In my view, the initial view expressed by the applicant is correct.
[17] Affidavit of Maria Violet Stratton-Kent dated 9 November 2023 [10].
Third, given the estimated net value of the Deceased's estate, I accept that both the applicant, as well as an attorney of the interested persons, can seek a grant of letters of administration of the Deceased's estate under s 25 and s 34 of the Administration Act.
Given this conclusion, the applicant's sole ground of appeal, namely that she 'is the only person entitled in distribution of his estate' and the 'only person entitled to a grant of administration under s 25 of the Administration Act', cannot be upheld.
Much of the argument at the hearing and in the applicant' submissions filed 18 January 2024 concerned whether the court had jurisdiction to make orders in the Initial Proceedings. This turned on whether, at that time, there were any proceedings 'for obtaining, recalling, or revoking any probate or administration'.[18] Given the conclusion that I have ultimately reached, it is unnecessary for me to deal with these submissions. The applicant has filed an application for summary judgment in the Initial Proceedings which is listed for hearing before me on 12 March 2024. In these circumstances, I do not consider it appropriate to express a preliminary view or conclusion on this issue. I will address those submissions in my reasons on that application.
[18] Administration Act 1903 (WA) s 35.
Since the hearing of the appeal, the interested parties have filed the Second Proceedings in which they seek orders for their attorney to be granted letters of administration.
Given this development, I consider that, for the following reasons, it would not be appropriate for the court to allow the appeal and grant letters of the administration to the applicant prior to the Second Proceedings being heard and determined.
First, at present, there is now a contest between the applicant and the interested parties as to who should be granted letters of administration. By filing the Second Proceedings, the interested parties have commenced a probate action in the contentious probate jurisdiction of the court. Until those proceedings have been determined, I do not consider that any orders should be made by the court in its non-contentious jurisdiction.
Second, I am not satisfied that:
(a)it is unarguable that the court can make any orders in the Second Proceedings; or
(b)on the evidence before me, it is clear that the Second Proceedings are an abuse of process (on the basis that the orders could lead to contradictory orders being made) and that it is inevitable that these proceedings will be stayed or dismissed.
These questions are matters that should be raised and determined in the Second Proceedings, after full argument.
Third, and in any event, I accept the submission of the interested parties that there is a lack of utility in making the orders sought by the applicant. If the appeal is allowed and a grant in common form is made to the applicant, the grant is revocable.[19] I infer, based on the actions of the interested parties to date, that either separate proceedings would be commenced or the Second Proceedings amended to seek orders to revoke the grant. In my view, it is inconsistent with modern case management principles (as reflected in O 1 r 4A and r 4B of the Rules) to require these matters to occur.
[19] Wheatley v Edgar [18].
Conclusion
For these reasons, it is my view that the proposed grant of letters of administration to the applicant should not be considered until after the determination of the Second Proceedings. Given this conclusion, I will hear from the parties as to the appropriate orders to give effect to this conclusion, including as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KC
Associate to the Honourable Justice Hill
28 FEBRUARY 2024
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