Simmone Maree Moscufo as executrix of the will of Guiseppe Moscufo v Moscufo
[2024] WASC 404
•29 OCTOBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SIMMONE MAREE MOSCUFO as executrix of the will of GUISEPPE MOSCUFO -v- MOSCUFO [2024] WASC 404
CORAM: SOLOMON J
HEARD: 29 OCTOBER 2024
DELIVERED : 29 OCTOBER 2024
FILE NO/S: CIV 1510 of 2023
BETWEEN: SIMMONE MAREE MOSCUFO as executrix of the will of GUISEPPE MOSCUFO
Plaintiff
AND
ENZO MOSCUFO
Defendant
Catchwords:
Application to prove a will in solemn form - Application to appoint interim administrator and receiver - Dispute as to powers of interim administrator - Application allowed
Legislation:
Administration Act 1903 (WA) s 35
Result:
Application granted
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr J Burke |
| Defendant | : | Mr G A Lacerenza |
Solicitors:
| Plaintiff | : | Lark Lawyers |
| Defendant | : | G A Lacerenza & Associates |
Case(s) referred to in decision(s):
D'Unienville v Sakalo [No 2] [2013] WASC 469
Fazio v Naso [2016] WASC 385
Greenway v McKay (1911) 12 CLR 310
Henderson v Executor Trustee Australia Ltd [2005] SASC 477
Jones v Toomer [2021] WASC 207
Moffa v Starr [2023] SASC 2
The Public Trustee in and for the State of Western Australia v Seow [2003] WASC 62
Tomkinson v Hersey (1983) 34 SASR 181
Vallelonga v Sorgiovanni [2017] WASC 323
SOLOMON J:
(This judgment was delivered extemporaneously on 29 October 2024 and has been edited from the transcript.)
This is an application by the plaintiff for appointment of an interim administrator and receiver in relation to the estate of Mr Giuseppe Moscufo pursuant to s 35 of the Administration Act 1903 (WA).
Giuseppe Moscufo died on 6 March 2022. As the parties in this action share the same surname and without intending any disrespect, I shall refer to the parties in this action by their first names.
Giuseppe was married to Emilia. Emilia survived Giuseppe but died on 9 January 2024. Giuseppe and Emilia had two sons, Nicolo and the defendant Enzo. Nicolo predeceased Giuseppe. Giuseppe also had grandchildren, the plaintiff Simmone, Daniel and Adam. Simmone, Daniel and Adam are the children of the late Nicolo.
By enduring powers of attorney dated 21 February 2021, Simmone was appointed attorney and guardian of both Giuseppe and Emilia.
Simmone filed an application for a grant of probate in respect of Giuseppe's will which was also dated 21 February 2021 (2021 Will) on 14 December 2022.[1] Enzo has lodged a caveat in the probate registry in respect of that application.[2] By a writ endorsed with a statement of claim dated 17 May 2023, Simmone seeks to prove Giuseppe's 2021 Will in solemn form.
[1] See the Affidavit of Simmone Maree Moscufo sworn on 10 July 2024 (First Simmone Affidavit), SMM-1.
[2] First Simmone Affidavit, SMM-3.
Enzo challenges the validity of the 2021 Will, and claims that Giuseppe's earlier will dated 30 June 1987 was his last valid will (1987 Will).[3] Enzo has lodged a counterclaim seeking to prove the 1987 Will in solemn form.
[3] See the Affidavit of Enzo Moscufo sworn 9 August 2024 (Enzo Affidavit), Annexure A.
Both the 1987 Will and the 2021 Will in effect bequeath Giuseppe's estate to his wife Emilia. The Wills differ in the event that Emilia does not survive Giuseppe, although it appears that difference may only reflect the fact that Nicolo was no longer alive at the time of the 2021 Will and his share was given to his children. As Emilia survived Giuseppe, the 1987 Will and the 2021 Will have the same practical effect ‑ all of Giuseppe's estate will go to Emilia.
The substantive difference between the 1987 Will and the 2021 Will is that the 1987 Will names Nicolo and Enzo as joint executors, whereas the 2021 Will names Simmone as the sole executrix. It follows that if the plaintiff succeeds, Simmone will be the executrix and if the defendant succeeds, Enzo will be the executor. That, it may blandly be observed, is the issue over which this litigation is being fought.
The principal asset the subject of this proceeding is a property in Woodbridge, Western Australia (Woodbridge Property). In the Rule 9B(1) statement annexed to Simmone's affidavit of 9 December 2022 in support of her application for probate in respect of the 2021 Will, the Woodbridge Property is valued at $800,000. The source of that figure is not disclosed. That statement listed as the only other substantial asset, a refundable deposit totalling $150,000 currently held by Regis Greenmount, the nursing home in which Giuseppe lived in his final days.
By chamber summons dated 11 July 2024, Simmone applied for the appointment of an interim administrator and receiver pursuant to s 35 of the Administration Act and O 73 r 2 of the Rules of the Supreme Court 1971 (WA). The application seeks the appointment of Mr Ian Blatchford, an independent solicitor, as the administrator and receiver of Giuseppe's estate pending the determination of the substantive proceedings. I observe that Mr Blatchford was described by a Master of this court some years ago in the following terms:[4]
… very experienced and has been appointed by this court on many occasions in the past. His charges are reasonable and there is nothing to suggest that he will do anything other than what is necessary to preserve the interests of the estate.
[4] Vallelonga v Sorgiovanni [2017] WASC 323 [14].
Simmone relied on the following material in respect of her application:
(a)Affidavit of Simmone Maree Moscufo sworn on 10 July 2024 (First Simmone Affidavit);
(b)Affidavit of Simmone Maree Moscufo sworn on 16 August 2024 (Second Simmone Affidavit);
(c)Written submissions dated 22 August 2024; and
(d)A minute of proposed orders dated 25 October 2024.
Enzo relied on the following materials:
(a)Affidavit of Enzo Moscufo sworn 9 August 2024 (Enzo Affidavit);
(b)A minute of proposed amendments to the chamber summons dated 7 August 2024;
(c)Written submissions dated 21 August 2024; and
(d)A minute of proposed orders dated 25 October 2024.
From those materials the following emerged. The parties agree to the appointment of an administrator of Giuseppe's personal estate and a receiver of his real estate. They also agree that Mr Blatchford should be appointed. The parties disagree about the terms of the appointment and specifically the scope of powers that should be granted by the court to Mr Blatchford.
In order to understand the nature of the disagreement, it is necessary to review briefly matters that arose from the affidavit material filed in respect of the application.
In her affidavit in support of the application, Simmone produced a formal written valuation report of the Woodbridge Property by a licenced valuer, Jess Ayerst of the firm Acumentis. In contrast to the figure provided in the rule 9B statement, the report valued the Woodbridge Property at $500,000 as at 17 June 2024.
Drawing on the matters in her affidavit, in support of her application to appoint an interim administrator, Simmone directed attention to the following matters:
(a)The Woodbridge Property, which has been vacant for some years, has fallen into disrepair;
(b)The Woodbridge Property is a personal and financial burden on Simmone:
(i)The vacant status of the Woodbridge Property has resulted in higher insurance costs;
(ii)To remain covered by insurance, a person needs to spend a night in the Woodbridge Property every 6 months;
(iii)Maintenance of the Woodbridge Property is time consuming and expensive;
(iv)Other costs associated with the Woodbridge Property (for example, rates), which were being paid by Emilia until she passed, are now falling into arrears as Giuseppe's money is currently being held by Regis Greenmount, and will only be released once they receive copies of the letters of administration or a grant of probate;
(v)Costs of insuring the Woodbridge Property are currently being borne by Simmone;
(c)There is a potential capital gains tax issue should the Woodbridge Property not be sold promptly. If that happens, the estate will incur additional tax that it could have otherwise avoided;
(d)Simmone has safety concerns about the Woodbridge Property:
(i)The dilapidated state of the Woodbridge Property presents a safety concern;
(ii)The Woodbridge Property has been broken into on a number of occasions; and
(iii)The concerns are compounded by the fact that the Woodbridge Property is very close to a high school.
Enzo did not, in substance, contest those matters. However, it was apparent from the affidavit material and the submissions advanced on Enzo's behalf, that he contests the value of $500,000 attributed to the Woodbridge Property in the formal valuation and considers it is worth more. Enzo did not profess any expertise in valuation. It is also apparent that Enzo believes that Giuseppe had or controlled several hundred thousand dollars as at the date of his death and there has not been an account of these monies. It will be recalled that from 21 February 2021, Simmone held an enduring power of attorney for both Giuseppe and Emilia. In her affidavit of 16 August 2024, Simmone said that she was a signatory on Giuseppe and Emilia's bank account from May 2021 and that her involvement with their financial affairs increased significantly from September 2021. Simmone explained that Giuseppe was hospitalised in July 2021 with an episode of acute delirium, and was diagnosed with dementia in about September 2021. Emilia was diagnosed with dementia in about January 2022.
It is apparent that Enzo harbours deep ill feeling toward Simmone and suspicions about her management of Giuseppe and Emilia's financial affairs. There was no attempt to substantiate these suspicions in the material filed in respect of the application before the court. However, the evidence established that Enzo had initiated some form of proceedings in the State Administrative Tribunal in relation to his concerns. It appears these proceedings were ultimately withdrawn but the substance of the application and the circumstances or reasons for their withdrawal were not in evidence.
Legal principles
The learned authors of Tristram and Coote's Probate Practice (32nd ed, 2020) explain at 11.384:
When the estate of a deceased person may be endangered by delay in administering it, the court is not bound to wait for an application by the person entitled to a grant under the rules, but may grant letters of administration ad colligenda bona for the purpose of preserving the property.
In D'Unienville v Sakalo [No 2] [2013] WASC 469, EM Heenan J cited a previous edition of that commentary as authoritative (29th ed, 2001). Heenan J went on to observe that such grants are by way of administration only, and the will is not proved or annexed to the grant. Such a grant is made under the court's general powers and is not expressed to be by virtue of any specific statutory provision.[5]
[5] D'Unienville v Sakalo [No 2] [2013] WASC 469 [70].
Administration ad colligenda bona defuncti is distinct from administration pendente lite, which is the application sought in this matter. That form of interim administration is now embodied in statutory form in s 35 of the Administration Act, which provides as follows:
35. Court may appoint manager and receiver pending litigation
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 the 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 general jurisdiction of the court to make limited grants of administration is well known and arises from the necessity of the case: Greenway v McKay (1911) 12 CLR 310 at 315 per Griffiths CJ.
The history and nature of an application for administration pendente lite was reviewed by the Full Court of the Supreme Court of South Australia in Henderson v Executor Trustee Australia Ltd [2005] SASC 477 (Henderson). The principal judgment was given by Debelle J (with Sulan and Anderson JJ substantially agreeing). The following principles may be distilled from that judgment:
(1)Historically, the practice has been only to grant administration pendente lite in cases where the necessity for the grant is made out.
(2)The appointment of an administrator pendente lite is analogous to the appointment of a receiver. Generally, there is a distinction between a receiver on the one hand, and the receiver and manager on the other. An administrator, like a court appointed receiver, is more in the nature of a caretaker than someone charged with management, which may include a more substantial involvement with the assets of the estate.
(3)Notwithstanding that distinction, when considering the administrator's duty to preserve the assets, it is necessary to consider all the relevant facts which may include not only preservation, but enhancement of the value of the assets of the estate.
(4)There is no prescribed role for an administrator pendente lite. The role will vary according to the circumstances in which the appointment is made and the purpose for the appointment.
(5)The object of a grant of administration pendente lite is to ensure that the estate of the deceased is managed and preserved for the benefit of those found to be entitled thereto. The duty of the administrator pendente lite therefore, is to get in the assets of the estate and manage and preserve them for the benefit of those found to be entitled to those assets.
(6)An administrator, like a trustee, cannot prefer the interests of one beneficiary over another. Where the beneficiaries cannot agree, and a course of conduct proposed by the administrator might adversely affect one or other of the beneficiaries, the court will, as a general rule, give directions which will preserve the status quo.
The principles in Henderson were more recently adopted by Blue J in Moffa v Starr [2023] SASC 2.
Generally speaking, an application for administration pendente lite requires that there be a probate action actually pending.[6] That requirement is of course satisfied here. The application may be made by any person, whether or not a party to the pending action.[7] In Public Trustee v Seow, EM Heenan J referred to authority departing from the requirement for a case of necessity to be made out before making the grant and suggesting the grant ought to be made wherever a Chancery Court would appoint a receiver.[8]
[6] The Public Trustee in and for the State of Western Australia v Seow [2003] WASC 62 (Public Trustee v Seow) [23].
[7] Public Trustee v Seow [23].
[8] Public Trustee v Seow [23].
A vacuum in relation to the legal control of real estate is, generally speaking, a most undesirable state of affairs.[9]
[9] Public Trustee v Seow [29].
Section 35 of the Administration Act preserves the distinction between the appointment of an administrator of personal estate, and a receiver of real estate. Apart from historical interest, nothing turns on that distinction.[10]
[10] Public Trustee v Seow [22].
As a general rule, a party to the dispute ought not be appointed as the administrator.[11] However, in certain circumstances, it may nevertheless be appropriate.[12]
[11] Tomkinson v Hersey (1983) 34 SASR 181, 184.
[12] Fazio v Naso [2016] WASC 385; Jones v Toomer [2021] WASC 207 [19] ‑ [20].
Competing orders sought
The background summarised above serves to explain the difference in the orders sought by the parties. The plaintiff Simmone seeks orders in fairly orthodox terms, including orders that Mr Blatchford have powers to:
(1)sell the Woodbridge property, including all ancillary powers necessary to effect that sale;
(2)get in and deal with the personal property and effects of the deceased, including the refundable accommodation deposit in respect of the deceased, which is presently held by Regis Greenmount; and
(3)consolidate all funds received in respect of the estate and the realisation of the deceased's assets.
In contrast, the defendant's orders include the following express powers to be conferred:
(1)To consult with a town planner and sworn valuer as 'Single Expert Witness' to obtain all relevant information and advice as to enable the said property to be valued and sold so as to utilise the property benefits for its size and zoning so as to return to the Estate the best return on the value of the property to an open market as its only proper use being its intended land use value, and/or such other related use that the appointed Administrator considers as apt and appropriate;
(2)Assessing all of the real and personal property of the deceased as at the date of death and/or to its expenditure, use and distribution and getting in all the personal property and effects of the deceased.
It is apparent from the terms of those orders and the material filed by and on his behalf that Enzo seeks to have the proposed powers crafted expressly so as to address his concerns about the valuation report and his suspicions regarding Simmone's management of Giuseppe's financial affairs.
In oral submissions, counsel for Enzo further explained the concern regarding the orders proposed by Simmone. The concern was that the orders would direct the administrator to sell the Woodbridge Property immediately, whereas it might be more beneficial for the estate to realise the subdivision potential of the Woodbridge Property. In that context, counsel for Enzo pointed to the Woodbridge Property's subdivision potential outlined in the valuation report.[13] In that regard, counsel for Enzo also submitted there ought not be any urgency in the sale of the Woodbridge Property because the $150,000 refundable deposit would provide sufficient funds to meet any ongoing debts of the estate.
[13] First Simmone Affidavit, SMM-4, page 25.
Counsel for Simmone submitted that the orders proposed by Simmone would not constrain the administrator in the manner suggested by Enzo's counsel. In respect of the administrator's function of reviewing debts or funds owed to the estate, counsel for Simmone confirmed that she had already agreed in writing to respond to and cooperate with any legitimate enquiries of the administrator.
Consideration
Having considered the evidence summarised above and the legal principles, I accept that it is not merely desirable but necessary that an administrator of the personal estate and receiver of Giuseppe's real estate be appointed under s 35 of the Administration Act. Mr Blatchford is an appropriate person to be appointed.
As an experienced practitioner in this area who has been appointed many times before, Mr Blatchford will be well aware of his duties. In my view, it is neither necessary nor appropriate for the court to prescribe or constrain Mr Blatchford in the performance of those duties. Accordingly, I do not accept that it is appropriate to prescribe the functions to be undertaken by Mr Blatchford in the manner urged by Enzo. I note that counsel for Enzo did not in oral submissions take any further the thinly veiled suspicions regarding the management of Giuseppe's and Emilia's funds by Simmone. In any event, given the unsubstantiated nature of those matters, and indeed the absence of any evidence in relation to them in this application, I do not consider it appropriate to seek to accommodate those alleged concerns in the orders.
In the circumstances, I shall make orders in the terms proposed by Simmone with the following amendments:
(a)I will delete the words 'limited to' in the chapeau to paragraph 2; and
(b)I shall make the first reporting date in paragraph 3 to be at the point of 6 months after Mr Blatchford's appointment, and thereafter every 12 months.
In relation to costs, I consider that the application was properly advanced and appropriate. In the circumstances, the plaintiff should have her costs of the application paid on an indemnity basis by the estate. The defendant's opposition to the application was almost entirely unsuccessful. In the circumstances, the defendant should bear his own costs of the application.
I will make the following orders:
(1)Mr Ian Torrington Blatchford be appointed as administrator of the personal estate and a receiver of the real estate of the estate of the late Giuseppe Moscufo pursuant to s 35 of the Administration Act 1903 (WA), pending final disposition of this proceeding.
(2)The administrator shall have powers:
(a)To sell the deceased's real property located at 28 Ford Street, Woodbridge, Western Australia (Property), including all ancillary powers necessary to effect that sale;
(b)To get in and deal with the personal property and effects of the deceased, including to get in the refundable accommodation deposit in respect of the deceased, which is presently held by Regis Greenmount of 22 Coongan Avenue, Greenmount, Western Australia;
(c)To consolidate all funds received in respect of the estate and the realisation of the deceased's assets;
(d)To use the estate's funds to discharge the just debts and liabilities of the estate, which shall include, without limitation:
(i)all costs and expenses associated with the sale of the Property;
(ii)the just debts and liabilities incurred by the parties on behalf of the estate;
(iii)the administrator's reasonable fees and disbursements in respect of his appointment, subject to the administrator providing copies of his invoices to the parties at least 10 days prior to the proposed date of payment;
(iv)the plaintiff's costs of this application as ordered below;
(e)To deposit such proportion of the estate's funds as the administrator deems appropriate in an interest-bearing account.
(3)The administrator shall upon the 6-month anniversary and thereafter every 12-month anniversary of his appointment, and within 21 days of the cessation of his appointment, provide to the parties an inventory of the estate of the deceased, together with his accounts, which are to be filed by the plaintiff upon receipt.
(4)The plaintiff's costs of this application (including the cost of the valuation of the Property dated 17 June 2024) be paid as soon as practicable by the estate on an indemnity basis as a testamentary expense.
(5)The defendant bear his own costs of this application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
YM
Associate to the Honourable Justice Solomon
29 OCTOBER 2024
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