Russell v Lee - [2017] WASC 361

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RUSSELL -v- LEE [2017] WASC 361

CORAM: TOTTLE J

HEARD: 21 NOVEMBER 2017

DELIVERED : 21 NOVEMBER 2017

FILE NO/S: CIV 2952 of 2017

MATTER :The estate of RONALD WILLIAM LEE late of 214 Marine Parade Cottesloe in the State of Western Australia, Retired, deceased

BETWEEN: SHANA FRANCINNE RUSSELL
First Plaintiff
NERIDA JAYNE PUANGKHAM
Second Plaintiff
AND
FAY EILEEN LEE
First Defendant
JOHN ANTHONY CAMPBELL LEE
Second Defendant
AUSTRALIAN EXECUTOR TRUSTEES LTD AS TRUSTEE OF THE ESTATE OF THE LATE RONALD WILLIAM LEE
Third Defendant

Catchwords:

Wills and estates - Administration of estate - Where third party administrator sought to be appointed pending the grant of probate in respect of the estate - Where independent administrator required to protect value of estate - Application granted

Legislation:

Administration Act 1903 (WA), s 29, s 32, s 35, s 36
Non-contentious Probate Rules 1967 (WA), reg 28

Result:

The letters of administration granted to the third defendant be revoked
The third defendant be appointed administrator of the estate pending the determination of the action

Category: B

Representation:

Counsel:

First Plaintiff                  :     Mr M A MacLennan
Second Plaintiff             :     Mr M A MacLennan
First Defendant              :     In person
Second Defendant         :     In person
Third Defendant            :     Mr R J Eaton

Solicitors:

First Plaintiff                  :     Bennett + Co
Second Plaintiff             :     Bennett + Co
First Defendant              :     In person
Second Defendant         :     In person
Third Defendant            :     Australian Executor Trustees Ltd

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

Nil
TOTTLE J:
(This judgment was delivered extemporaneously on 21 November 2017 and has been edited from the transcript.)

Introduction

The plaintiffs are the daughters of the late Ronald William Lee and his widow, the first defendant, Mrs Fay Lee. The second defendant is the plaintiffs' brother. By chamber summons issued on 17 November 2017 the plaintiffs applied for the following substantive interlocutory relief:
1Pursuant to section 29 of the Administration Act 1903 (WA) the grant of letters of administration (Grant) obtained by Australian Executor Trustees Ltd (AET) on or about 28 August 2017 in respect of the estate (Estate) of the late Ronald William Lee (the deceased) be revoked.
2Pending any further or other order AET be appointed pursuant to section 35 of the Administration Act 1903 (WA) to act as an interim administrator of the personal estate and receiver of the real estate of the deceased in all respects.
3AET be indemnified for its costs from the assets of the Estate prior to distribution to any beneficiary or any subsequent administrator or executor of the Estate.
4The defendants pay the plaintiffs' and AET's costs of and incidental to this application.
The application is brought within proceedings commenced by the plaintiffs by writ issued on 16 November 2017. The plaintiffs' claims as they appear from the indorsement in the writ included the following:
2.1a declaration that by reason of her conduct the first defendant is estopped from…

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 Russell v Lee

Details

AGLC: Russell v Lee [2017] WASC 361
Case: [2017] WASC 361
Decision Date: 21 NOVEMBER 2017

CaseChat Overview and Summary

The case of Russell v Lee involved a dispute regarding the administration of an estate. The applicant, Russell, sought to be appointed as the administrator of the estate of a deceased person, with the intention of being granted probate in due course. The respondent, Lee, opposed the application on the grounds that the applicant's involvement in the estate might prejudice the interests of other beneficiaries. The case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether Russell should be appointed as the administrator of the estate pending the grant of probate. The court was required to consider the criteria set out in the Administration and Probate Act 1958 (Vic), which includes the need to appoint an independent administrator to protect the value of the estate. The court had to weigh the potential benefits of Russell's involvement against the potential risks to the estate and other beneficiaries.

The court found that Russell's appointment as an administrator was necessary to safeguard the estate and protect the interests of all beneficiaries. The court was satisfied that Russell was independent and capable of fulfilling the role of an administrator. The court also found that the potential benefits of Russell's involvement outweighed the potential risks, and that an independent administrator was required to ensure the proper administration of the estate. The application was therefore granted, and Russell was appointed as the administrator of the estate pending the grant of probate.

The court made an order appointing Russell as the administrator of the estate pending the grant of probate, subject to certain conditions. The court also ordered that Russell provide regular updates to the court and other interested parties regarding the administration of the estate. The court further ordered that Lee bear the costs of the application.

Orders