Suzanne Claire Pontifex as Executor of the Will of John Arthur Street v Kittelty - [2013] WASC 296

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: SUZANNE CLAIRE PONTIFEX As Executor Of The Will Of John Arthur Street -v- KITTELTY [2013] WASC 296

CORAM: EM HEENAN J

HEARD: 22 JULY 2013

DELIVERED : 22 JULY 2013

PUBLISHED : 9 AUGUST 2013

FILE NO/S: CIV 2784 of 2012

BETWEEN: SUZANNE CLAIRE PONTIFEX As Executor Of The Will Of John Arthur Street
Plaintiff
AND
SHANE BURNETT KITTELTY
Defendant

Catchwords:

Caveats - Application for removal - Transfer of Land Act 1893 (WA) - Caveator claiming as executor and sole beneficiary under an alleged will of deceased proprietor - Probate granted to plaintiff of a different will - Application for revocation of grant of probate by caveator - Citation to bring in grant - Significance of obligation to return grant of probate to Court in response to citation - No revocation of grant but application pending - Removal desired to allow completion of contract for sale of land - No offer of undertaking for damages

Legislation:

Transfer of Land Act 1983 (WA)

Result:

Application to remove caveat granted

Category: B

Representation:

Counsel:

Plaintiff: Mr N D Billington
Defendant: In person

Solicitors:

Plaintiff: Jarman McKenna
Defendant: In person

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

In re Levy (dec) [1953] VLR 652
Wheatley v Edgar [2008] WASC 118

EM HEENAN J: This application pursuant to s 138 and s 140 of the Transfer of Land Act 1893 (WA), is for the removal of a caveat in respect of three lots of land in Herdsman Parade, Wembley.
The application is brought by Suzanne Claire Pontifex, the executrix of the will of John Arthur Street, to whom probate was granted by this court in the non-contentious jurisdiction on 10 April 2012. The respondent to the application (named as first defendant) is Shane Burnett Kittelty, and the second defendant is the Registrar of Titles.
The present application is a sequel to a similar application brought before me on 3 December 2012, but in relation to a different piece of land also an asset of the estate of the deceased, John Arthur Street. It is desirable that I make some reference to the order which I made on 3 December 2012. That order was:
1.Substituted service of the process in the application for the removal of the caveat is effective by the means already adapted to attempt personal service, namely two visits by the process server to the address in York, that is of the first defendant; the repeated telephone calls and messages to the email addresses and dispatch by post of various documents.
2.Accept the undertaking by the plaintiff that the nett proceeds of the sale of the Carlisle property, that being the land which was the subject of that application, be held in an interest bearing trust account by the executor and not distributed without further order.
3.The plaintiff has liberty to apply in relation to the mode of investment of that money and its eventual distribution.
4.Upon the plaintiff's undertaking, the caveat lodged by the first defendant over the Carlisle property, or insofar as it applies to the Carlisle property, be removed.
5.Leave be given to renew the application for the removal of caveat in relation to the other three properties in Wembley.
6.Costs are to be regarded as costs in administration and are to be paid out of the estate on an indemnity basis subject to the executor's ability to pass accounts.
Subsequent to that order, the caveat lodged by the first defendant, insofar as it applied to the Carlisle property, has been removed, and a sale of that property to a third party by the plaintiff, Ms Pontifex, in her capacity as executrix of the will of the deceased proprietor, has been completed and the proceeds of the sale received by her.
The nett proceeds of the sale, after proper selling expenses including commissions, have been invested in an interest bearing trust account by the executor and remain subject to the order which I made – that is they are not to be distributed without a further order of the court and there is liberty to apply in that respect.

Background

The deceased, John Arthur Street, died at Hollywood Private Hospital, Nedlands, on 2 September 2010. He was, by occupation, an engineer and his age at death was 88 years, having been born on 30 June 1992. He lived at 141 Herdsman Parade, Wembley, for some significant period before his death. According to the death certificate, he was never married and left no children.
Probate of his will dated 9 July 2009 was granted by this court on 1 April 2012, to the present plaintiff, Suzanne Claire Pontifex, one of the executors named in that will, the other executrix having renounced probate. The will of July 2009 was duly executed and witnessed and it provided for distribution of the estate, after payment of debts and testamentary expenses, to one Terrence John May; to the executrix, Suzanne Claire Pontifex; to the co‑executrix named Joanne Marie Moore; and the residue to the Cancer Council of Western Australia. Suzanne Claire Pontifex embarked on the administration of the estate and entered into a contract for the sale of the Carlisle property, which has now been completed.
The application before the court today concerns the three properties of the deceased at Wembley, which front Herdsman Parade. The executrix, Ms Pontifex, has entered into a conditional agreement for the sale of that land to a third party and completion of that sale, subject to compliance with a variety of conditions including the removal of the caveat lodged against dealings on that land by the first defendant, is imminent.
There is evidence that the executrix has contracted to sell the Wembley land to a purchaser for a sale price of $8 million, and that this is a reasonable price having regard to current market conditions. Mr Kittelty does not dispute that this is a reasonable price. He contends that the sale should not proceed and that Ms Pontifex should be restrained from any further dealings with estate property and that she should bring in accounts to be passed before the court to satisfy him of the due administration of the estate so far.
As Mr Kittelty has not been mentioned as a beneficiary in the will admitted to probate, it is necessary to explain the basis of his claim. Mr Kittelty claims that the deceased, John Arthur Street, made a later will, one dated 16 March 2010, duly executed and witnessed, which appointed him, Shane Burnett Kittelty, as sole executor and trustee of this will, and made him the sole beneficiary of all the real and personal estate. This is a large estate, the exact magnitude of which is not apparent on the evidence before me, but which is acknowledged to be worth somewhere in the region of $8 million to $10 million dollars, and perhaps more.
At the time of my order of 3 December 2012 Mr Kittelty had made few, if any, attempts to prove the alleged later will. However, he sought to rely on it to dispute the right of Ms Pontifex to sell the Carlisle property and at that time he had procured the issue of a citation directed to Ms Pontifex to bring in her grant of probate for revocation on grounds which alleged that the 2010 will in his favour was the last valid testament and that it should be proved and he be appointed executor.
On the application in December 2012, dealing with the Carlisle property, Mr Kittelty did not appear, although I was satisfied that notice of the proceedings had come to his attention. It was therefore necessary for the plaintiff, Ms Pontifex, to show that there was sufficient reason to remove the caveat notwithstanding this alleged later will. Accordingly, on that occasion, one of the alleged witnesses to that will, Mr Leslie Edgar Anderson, was called to give evidence by counsel for Ms Pontifex. Mr Anderson was sworn and examined and gave uncontradicted, admittedly unchallenged, evidence that the signature appearing on that will in his name as an apparent witness was not his signature, that he had not witnessed the will and was not aware of such a will ever having been made.
To put it mildly, that evidence casts a shadow over the validity of the will which Mr Kittelty is propounding. I hasten to add that no evidence was adduced by Mr Kittelty on that occasion, the other subscribing witness to the alleged 2010 will was not called and no final decision as to the efficacy or validity of that alleged will was made or was necessary.
Since then, the citation to produce the will has been served upon Ms Pontifex and she has produced her grant of probate in response. It now rests in the probate registry of this court. There are separate proceedings, action CIV 2259 of 2012, presently pending in this court, in which Shane Burnett Kittelty is plaintiff and Suzanne Claire Pontifex is defendant. Those proceedings were commenced by a writ issued on 25 July 2012. They are still going through the case management proceedings but the present status and effect of them can be simply described.
Mr Kittelty is seeking revocation of the grant of probate made in favour of Ms Pontifex on the grounds that there is this valid later will made appointing him as executor and sole beneficiary and dated 16 March 2010. He is also seeking a grant of probate of that will in his favour and consequent relief appointing him to the office of executor with the rights to possess and control all the estate assets.
Ms Pontifex is defending those proceedings, asserting that she has been validly appointed as executor under the existing grant and that there are no grounds for its revocation. She is counterclaiming for orders in the nature of injunctions and declarations that Mr Kittelty has no right to claim the status of executor or any interest in the estate property under the alleged will of April 2010, or at all. As far as I can see, the counterclaim does not extend to a claim for a grant of probate in solemn form of law in her favour of the will ‑ which is the subject of the common form grant – although it may be a wise precaution for that to be done if that action proceeds to trial in order to prevent the possibility of any further challenge to the non‑contentious grant: see In re Levy (dec) [1953] VLR 652.
Returning to the present application for removal of the caveat preventing the sale of the Wembley properties, counsel for the plaintiff relied upon the significance of this sale, the need to administer the estate, the asserted weakness of the claim by Mr Kittelty based on the alleged later will and the possibility that considerable loss and expense may ensue if the sale is delayed, or worse still, falls through. It seems to have been an assumption by Ms Pontifex, or those advising her, that despite the production of the grant of probate of April 2012 to the registry, pursuant to the citation, it will still be possible for her to complete the sale of the Wembley lands under this contract of sale because a certified copy of that grant of probate has been lodged with the Registrar of Titles at Landgate.
I must disabuse the plaintiff, or her advisors, of any such notion. I have pointed out that, in view of the circumstances, there is an obligation upon them to inform the Registrar of Titles and Landgate that the grant of probate has since been returned to this court in obedience to a citation which has led to proceedings being commenced for the revocation of that grant, thus alerting the Registrar of Titles and Landgate to a possible fragility in this grant of probate. I have been assured that that direction will be complied with.
Mr Kittelty seeks to restrain the sale of the Wembley properties and to preserve the caveat based on his asserted interest under this unproved alleged will of April 2010. However, once it was pointed out to him that the course which he seeks to achieve will not only delay the administration of the estate and jeopardise the sale of the Wembley property, but that it may result in a substantial capital loss and other expenses for which he may be personally liable in the event that his action for revocation of the existing grant of probate and for probate of the alleged will of April 2010 were to ultimately fail, he changed his approach. The position in which Mr Kittelty is situated is, for all practical purposes, identical to the position of the person who seeks an interlocutory injunction to preserve an assumed property or right claimed pending the disposition of proceedings to establish that claim. Such a person is required to give an undertaking to the court to be answerable for any damages which may result from the grant of the injunction in the event that his claim fails and in the event that the court considers that he ought pay some or all of those damages.
When asked whether or not he was in a position to offer such an undertaking and had the means to support it, Mr Kittelty made it quite clear that he was not willing to offer any such undertaking and was not in a position to be answerable for such potential damages as might eventuate if he should fail in his attempt to prove the alleged later will and if the Wembley land would then be sold at a price less than payable by this contract.
In those circumstances, I have no doubt that the proper course to follow is to accede to the application by the plaintiff that the caveat lodged by the first defendant in relation to the Wembley property should be discharged leaving it possible for that sale to proceed to completion. The question is, how that should be done in all the circumstances and what ought be done with the proceeds. The first question is a practical one, and that is how can such a sale be completed by the executrix who has been obliged to return her grant of probate to the court pursuant to the citation because of the pending revocation proceedings.
I consider that this can be done by directing that a certified copy of the order which I will now make, together with a copy of these reasons for decision after they have been approved, should be provided by the executrix to the Registrar of Titles and to Landgate. The order will provide that the existing certified copy of the grant of probate may be used to allow the plaintiff to complete the sale of the Wembley properties to demonstrate her authority as executor to whom probate has been granted so that that sale may proceed, but for no other purpose, and that there be liberty to apply to the court if any other transaction requiring proof of the authority the existing executrix is needed.
As for what should be done with the proceeds of the sale, I consider that an order, similar to the order which I made in respect of the Carlisle property on 3 December 2012, should also be made. Accordingly, I will order that the nett proceeds of the sale of the Wembley properties payable to the plaintiff on completion of that transaction - that is the sale price less all proper selling expenses, commissions and associated fees – be paid into an interest bearing trust account in the names of the solicitors for the plaintiff on trust for the plaintiff Suzanne Claire Pontifex in her office as executor of the will of John Arthur Street, deceased, subject to any further order of the court, and that there be liberty to apply for any variation in the mode of investment of that money or any dealings with that money. I also consider that the costs in the present proceedings should be reserved.
From all this, it is apparent that the greatest priority should be given to determine the contentious probate proceedings in the revocation action which has been commenced by Mr Kittelty – that is, CIV 2259 of 2012. I have already averted to the current state of progress in that action, but I have not given the details of all the directions which have been made including orders for the production of expert evidence and the exchange of witness statements bearing, presumably, on the authenticity of the signatures of the deceased and or the witnesses and circumstances as to the execution of the will.
I have already averted to the possibility that the current claim might need to be amended, or that there may be some advantages for this plaintiff in considering an amendment to counterclaim for proof in solemn form of the will for which probate has already been granted ‑ as to the advantages of a grant of proof in solemn form in such circumstances, I refer to my decision in Wheatley v Edgar [2008] WASC 118.
I have also mentioned that in the statement of claim in that action, Mr Kittelty has not alleged all the various matters necessary to be established in an action for the proof of a will, either in non‑contentious form or in solemn form; that is the testamentary capacity of the deceased; the date and circumstances of his death; the existence of property situate within the jurisdiction; the absence of any revocation of the will; and the willingness and suitability of the proposed executor to administer the will according to law, and other requirements as found in the Non‑Contentious Probate Rules. Nor does there appear to be any statement of the assets and liabilities of the estate as contended for by the plaintiff, Mr Kittelty, in those proceedings.
I mention this only to facilitate the prompt resolution of those other proceedings in case any of the parties considers that these observations require implementation.
I do, however, stress that it seems to be of the highest priority that the contentious probate proceedings for revocation should proceed with all due expedition. I have not been asked to take over the management of those proceedings, nor to consolidate them, but I will make an order that the file in this present application; that is the caveat proceedings ‑ CIV 2784/2012 and the file in the revocation proceedings ‑ CIV 2259 of 2012 should each be marked as dealing with common matters and that no order or direction in one should be made by any judicial officer without being aware of the current state of process in the other.