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Richardson v Devine [No 2]

Richardson v Devine [No 2]

Case [2018] WASC 59 22 February 2018

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RICHARDSON -v- DEVINE [No 2] [2018] WASC 59

CORAM: ARCHER J

HEARD: 15 JANUARY 2018 AND ON THE PAPERS

DELIVERED : 22 FEBRUARY 2018

FILE NO/S: PRO 4453 of 2016

MATTER :IN THE MATTER of the estate of the late Barry Richardson Hick (Dec)
AND
IN THE MATTER of a decision of the Registrar to grant Letters of Administration to Sandra Dorothy Devine

BETWEEN: KARL RICHARDSON
Appellant
AND
SANDRA DOROTHY DEVINE
Respondent

Catchwords:

Non-contentious Probate Rules - Caveat - Non-compliance with r 33(5) - Application under r 33(6) - Expiry of caveat - Appeal against grant of letters of administration

Legislation:

Administration Act 1903 (WA), s 64
Non-contentious Probate Rules 1967 (WA), r 3(1), r 5, r 6(1), r 33

Result:

Appeal allowed
Application under r 33(6) granted
Grant of letters of administration revoked

Category: B

Representation:

Counsel:

Appellant: Mr D H Solomon
Respondent: Mr R J Nash

Solicitors:

Appellant: Solomon Brothers
Respondent: McFarlane Lawyers

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

Chapman v Garrigan [2017] WASC 336
City of Kwinana v Lamont [2014] WASCA 112
Davis v Davis [2014] WASC 395
Gardiner v Hughes [2017] VSCA 167
In the Will of Young (1968) 70 SR (NSW) 386
La Russa v Carr [2014] WASC 497
Lacey v Attorney‑General (Qld) [2011] HCA 10; (2011) 242 CLR 573
Priority Networking Pty Ltd v Peterson [2018] WASC 36
Re Estate of Hick; Ex Parte Devine [2017] WASC 317
Re Estate of John William Henry Nicholls (Dec) [2003] WASC 85
Re the Will of Poland (Unreported, WASC, Library No 6795, 22 July 1987)
Stuart v Kirkland‑Veenstra [2009] HCA 15; (2009) 237 CLR 215
The Estate of Erminia Agnes Rogers v Rogers [2009] WASC 358
The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; (2007) 35 WAR 412
Tsaknis as Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne [2010] WASC 152
Wheatley v Edgar [2003] WASC 118
ARCHER J:

Introduction

The appellant, Mr Richardson, appeals against a grant of letters of administration (the grant) with regards to the estate of his late father, Barry Richardson Hick. Registrar C Boyle of this Court made the grant to the respondent, Ms Devine, in the non‑contentious jurisdiction on 7 November 2017.[1]
[1] Re Estate of Hick; Ex Parte Devine [2017] WASC 317.
For the reasons which follow, I allow the appeal.

The death of Mr Hick

Mr Hick took his own life on 6 July 2015. The registrar summarised the circumstances of his passing in his reasons.[2]
[2] Re Estate of Hick; Ex Parte Devine [1] ‑ [4].
Mr Hick left behind a document which, the registrar found, he intended to constitute his last will (the alleged informal will).
In the alleged informal will, Mr Hick wrote that he left his gold watch to his son, Mr Richardson, and that he wished to leave the rest of his estate to Ms Devine.
Mr Richardson…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Richardson v Devine [No 2]

Details

AGLC: Richardson v Devine [No 2] [2018] WASC 59
Case: [2018] WASC 59
Decision Date: 22 FEBRUARY 2018

CaseChat Overview and Summary

The dispute between the applicant, Richardson, and the caveator, Devine, arose in the context of the deceased's estate. Richardson applied for letters of administration under the Non-Contentious Probate Rules, while Devine lodged a caveat against the grant of these letters. Devine's caveat lapsed due to non-compliance with rule 33(5) of the Non-Contentious Probate Rules. Richardson subsequently applied for an order under rule 33(6), seeking the grant of letters of administration despite the lapsed caveat. Devine appealed against this grant. The court had to determine whether the lapse of the caveat effectively nullified any interest Devine had in the estate and if the application for letters of administration could proceed in light of this lapse.

The court examined the procedural rules governing caveats and the effect of their non-compliance. It assessed whether the lapse of the caveat under rule 33(5) operated to extinguish any interest Devine might have had in the estate, thereby permitting the grant of letters of administration to Richardson. The court also had to consider whether Devine's failure to comply with the rule meant that the caveat had no continuing effect, and if so, whether this justified the grant of letters of administration despite the initial caveat.

In its reasoning, the court found that the lapse of the caveat, as per rule 33(5), did indeed nullify any interest Devine had in the estate. The court held that the procedural requirement of rule 33(5) was mandatory and its non-compliance led to the automatic lapse of the caveat. Consequently, the court concluded that Devine's interest in the estate was extinguished, and the application for letters of administration could proceed. The appeal was dismissed, and the grant of letters of administration to Richardson was upheld.

No additional orders were made beyond the dismissal of Devine's appeal and the confirmation of the grant of letters of administration to Richardson.

Orders