The Public Trustee as Administrator of the Estate of Jeffrey Stephen Alau v The Public Trustee of Queensland as Administrator of the Estate of Ellen Padal Pearson

[2011] WASC 321

THE PUBLIC TRUSTEE AS ADMINISTRATOR OF THE ESTATE OF JEFFREY STEPHEN ALAU -v- THE PUBLIC TRUSTEE OF QUEENSLAND AS ADMINISTRATOR OF THE ESTATE OF ELLEN PADAL PEARSON [2011] WASC 321

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASC 321
Case No:	CIV:1008/2010	Heard:	9 MAY & 18 NOVEMBER 2011
Coram:	SIMMONDS J	Delivered:	18/11/11
No of pages:	14	Judgment Part:	1 of 1
Result:	1.  Deceased was the son of Frank Mosby. 2. Frank Mosby did not admit paternity of deceased within meaning of s 12A of Administration Act 1903 (WA). 3. The Public Trustee be at liberty to distribute deceased's estate on basis that it has not been established that the condition or requirement in Administration Act 1903 (WA) s 12A(2)(b)(i) has been met in respect of the father of the deceased, Frank Mosby.
Category:	B
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Parties:	THE PUBLIC TRUSTEE AS ADMINISTRATOR OF THE ESTATE OF JEFFREY STEPHEN ALAU THE PUBLIC TRUSTEE OF QUEENSLAND AS ADMINISTRATOR OF THE ESTATE OF ELLEN PADAL PEARSON NORMAN WILLIAM MOSBY DANIEL WILLIAM MOSBY DAN MURRAY MOSBY
Catchwords:	Administration of estates Trustees Act 1962 (WA) s 66(5) Application for directions for liberty to distribute undistributed estate Determination of whether named person was father not married to mother of deceased Determination of whether that person had admitted paternity
Legislation:	Administration Act 1903 (WA), s 12A, s 14 Births, Deaths and Marriages Act 1997 (WA), s 57 Evidence Act 1903 (WA), s 79C Trustees Act 1962 (WA), s 66
Case References:	Riches v McInnes [2010] WASC 298 The Public Trustee v Gulvin [2004] WASC 140

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : THE PUBLIC TRUSTEE AS ADMINISTRATOR OF THE ESTATE OF JEFFREY STEPHEN ALAU -v- THE PUBLIC TRUSTEE OF QUEENSLAND AS ADMINISTRATOR OF THE ESTATE OF ELLEN PADAL PEARSON [2011] WASC 321 CORAM : SIMMONDS J HEARD : 9 MAY & 18 NOVEMBER 2011 DELIVERED : 18 NOVEMBER 2011 FILE NO/S : CIV 1008 of 2010 BETWEEN : THE PUBLIC TRUSTEE AS ADMINISTRATOR OF THE ESTATE OF JEFFREY STEPHEN ALAU

Plaintiff

AND

THE PUBLIC TRUSTEE OF QUEENSLAND AS ADMINISTRATOR OF THE ESTATE OF ELLEN PADAL PEARSON
First Defendant

NORMAN WILLIAM MOSBY
DANIEL WILLIAM MOSBY
DAN MURRAY MOSBY
Second Defendants

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Catchwords:

Administration of estates - Trustees Act 1962 (WA) s 66(5) - Application for directions for liberty to distribute undistributed estate - Determination of whether named person was father not married to mother of deceased - Determination of whether that person had admitted paternity

Legislation:

Administration Act 1903 (WA), s 12A, s 14

Births, Deaths and Marriages Act 1997 (WA), s 57
Evidence Act 1903 (WA), s 79C
Trustees Act 1962 (WA), s 66

Result:

1. Deceased was the son of Frank Mosby.
2. Frank Mosby did not admit paternity of deceased within meaning of s 12A of Administration Act 1903 (WA).
3. The Public Trustee be at liberty to distribute deceased's estate on basis that it has not been established that the condition or requirement in Administration Act 1903 (WA) s 12A(2)(b)(i) has been met in respect of the father of the deceased, Frank Mosby.

Category: B

Representation:

Counsel:

Plaintiff : Ms H J Finch
First Defendant : No appearance
Second Defendants : No appearance

Solicitors:

Plaintiff : Public Trustee (WA)
First Defendant : No appearance
Second Defendants : No appearance

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

Riches v McInnes [2010] WASC 298
The Public Trustee v Gulvin [2004] WASC 140


(Page 4)

SIMMONDS J:

[This judgment was delivered orally on 18 November 2011 and has been edited from transcript.]

Introduction

1 This is an application by originating summons for orders in the administration of the estate of Jeffrey Stephen Alau (the deceased). The plaintiff seeks orders to determine whether the deceased was the son of a Frank Mosby. If the answer to the first question is yes, there is a second question, whether Frank Mosby admitted his parentage of the deceased within Administration Act 1903 (WA) s 12A, which I took to be a reference to s 12A(2)(b)(i) which is set out later in these reasons. Finally, if the answer to the second question is no, there is a request for an order that the Public Trustee be at liberty to distribute the deceased's estate as if his father had predeceased him without further issue.

2 At the hearing it became evident that the application was for an order under the Trustees Act 1962 (WA) s 66(5) which I set out later in these reasons.

3 It will be seen that the application raised a question for me as to the construction of s 66(4) upon which counsel had been unable to find authority. My own research was also unavailing. In the event, as I will explain, it has not proved necessary for me to arrive at any final view as to that question of construction.

4 In these reasons, I first provide background to the present application, before I review the applicable law. Then I apply that law. The final section is my conclusion and orders. As will become apparent, the orders in respect of the third of the three matters listed in the originating summons depart somewhat from the form proffered in the originating summons, following a discussion with counsel before me.

5 I turn then to the background to the application.

Background

6 The only evidence before me at the first hearing of this matter on 9 May 2011 was, leaving aside affidavits of service of the originating summons (ones of some importance as I will indicate), in two affidavits of Shaun William Conlin, one sworn 14 December 2009 (the Conlin affidavit of December 2009) and the other, 5 May 2011 (the Conlin

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affidavit of May 2011). Mr Conlin is Director Trustee Services for the Public Trustee. I take the following from that affidavit material.

7 The deceased, as shown by his birth certificate annexed to the Conlin affidavit of December 2009, was born on 13 June 1940 in Queensland. His mother is shown there as 'Felisha Alau'. There is no entry for his father.

8 I accept that the absence of such an entry shows, or tends to show, that the deceased was illegitimate; that is, born of a mother not married to his father. There is no other evidence before me to indicate that the deceased's mother, Felisha Alau, was then or ever was married to his father, as I find that father to be for the reasons I will indicate.

9 The deceased died sometime between 31 January 1985 and 1 February 1985. He died in Wittenoom in this State, a divorcee without issue. His mother predeceased him in 1945. He died intestate and the plaintiff was appointed administrator of his estate. The sum of $38,191.10 represents the proceeds of his estate held by the plaintiff for distribution. The deceased's death certificate shows his father as 'Frank Mosby' and his mother as 'Phyllisia Alau'.

10 As shown by a birth certificate for Ms Ellen Padal Pearson annexed to the Conlin affidavit of December 2009, Ms Pearson was born 4 April 1932 as 'Ellen Padal' in Queensland. Her mother is shown as 'Felisha'. Ms Pearson, in her statutory declaration annexed to the Conlin affidavit of May 2011, declared, amongst other things, that she was the sister of the deceased and was his only next of kin. She died on 9 September 1998. The first defendant is the personal representative of Ms Pearson's estate.

11 As shown in their respective birth certificates attached to the Conlin affidavit of December 2009, the three second defendants, 'Dan Murray' [Mosby], born 2 December 1941 on Yorke Island in Queensland, 'Norman William Mosby', born 18 October 1946 on Yorke Island in Queensland and 'Daniel William Mosby', born 22 May 1959 on Thursday Island in Queensland, to a father shown as 'Frank Mosby' and a mother shown as 'Susannah [or Susanna] Mosby'.

12 There is a death certificate for Frank Mosby annexed to the Conlin affidavit of December 2009. It shows the date of death as 22 June 1970 in Queensland and the informant as 'Susanna Mosby', wife. It also shows issue living as being the second defendants and Francis McFarlane. It may be noted that the deceased is not shown as issue of Frank Mosby on Frank Mosby's death certificate.

(Page 6)

13 The birth certificate for Mr McFarlane annexed to the Conlin affidavit of December 2009 shows him born on 11 August 1933 and the father as 'Dan Mosby'. There is no entry for the mother.

14 On the material before me I understood only the second defendants had notified the plaintiff of any claims. Mr McFarlane had not.

15 I turn then to the applicable law. I will return to some additional evidence, the result of what is contained in the Conlin affidavit of June 2011, subsequently.

Applicable law

16 The Administration Act s 14(1), as it was at the date of the deceased's death, in material part provided for the distribution of the intestate's estate as follows:

Entitlements on intestacy

(1) Subject to this section and section 15, where any person (in this section called the intestate) dies intestate as to all or any of his property, the property as to which he dies intestate (in this section called the intestate property) shall be distributed according to the entitlements set out in the following table (in this section called the Table): -


Table

If the intestate -
8. dies leaving one or more of the following, namely a brother or sister, or a child of a brother or sister, but leaving no husband or wife and no issue or parent	the brothers and sisters of the intestate and the children of deceased brothers and sisters of the intestate shall be entitled in accordance with subsection (3a) to the whole of the intestate property;

17 By virtue of this provision read with s 12A of the Administration Act, which I set out below, any entitlement of the second defendants, or indeed of Mr McFarlane, to participate in the distribution of the deceased's estate depends upon it being determined that Frank Mosby was father of the deceased and satisfied the condition of the requirement in s 12A that I will return to: see Riches v McInnes [2010] WASC 298 [19] - [20], which with the authority that I will return to below appears to be the only authority on the provisions of concern to me in s 12A.

(Page 7)

18 The Trustees Act 1962 (WA) s 66 provides for the court to make orders for the distribution of property held in trust where a trustee does not know whether any person who may be entitled to property is or at any material time was in existence. The term 'trust' includes 'the duties incidental to the office of a personal representative': see the definition of 'trust' in Trustees Act s 6(1). The plaintiff does not know whether the second defendants may be entitled to any part of the deceased's estate in accordance with the Administration Act s 14 as I have set it out. The parts of s 66 material to me appear to be s 66(1), (3), (4) and (5)(a):

(1) Where any property is held by a trustee and the property or any part thereof cannot be distributed because the trustee does not know -

(a) whether any person who is, or may be, entitled thereto is, or at any material date was, in existence; or

(b) whether all or any of the persons who are members of any class that is or may be entitled thereto are, or at any material date were, in existence; or

(c) whether any such person as is mentioned in paragraph (a) or (b) is alive or dead or where he is to be found,

the trustee may publish such advertisements (whether in the State or elsewhere) as are appropriate in the circumstances calling upon every such person and every person claiming through any such person to send in his claim within a time to be specified in the advertisements, being, in any case, not less than 2 months from the date on which the advertisement is published.


…

(3) Where the trustee has received (whether as a result of advertisements or not) a claim that any person is a person to whom any advertisement made under this section relates, or any notice that any person may claim to be such a person, and the trustee is not satisfied that the claim is or would be valid, the trustee may serve upon the claimant or the person of whom the trustee has notice as aforesaid, a notice calling upon him, within a period of 3 months from the date of service of the notice, to take legal proceedings to enforce the claim, if he wishes to pursue it, and to prosecute the proceedings with all due diligence; and advising him that, if he fails to do so, his claim may be disregarded and application may be made to the Court without further notice for an order authorising the distribution of the property.

(4) Nothing in subsection (3) makes it necessary for the trustee to serve a notice therein mentioned on any person; and the Court may make an order under this section, whether or not such a notice has been

(Page 8)

served on any person, if it is satisfied that the information supplied to the trustee by that person or otherwise in the possession of the trustee indicates that the person is not one of the persons specified in the advertisements or is not likely to be one of those persons.

(5) Upon proof by affidavit of the circumstances, and of the inquiries that have been made, and of the results of the inquiries and advertisements, and of the claims of which the trustee has received notice, and of the notices that the trustee has given to claimants under subsection (3), and of the action (if any) that the claimants have taken to enforce their claims, the Court may order that the trustee be at liberty to distribute the property or part thereof, subject to such conditions as the Court may impose -

(a) as if every person and every member of any class of person specified in the order (being all or any of the persons specified in the advertisements) is not in existence or never existed or has died before a date or event specified in the order. (emphasis added)

19 Relying on s 66(1) the plaintiff published an advertisement in a newspaper circulating in the Torres Strait Islands on 6 July 1990 (the advertisement). Publication in a newspaper circulating in the Torres Strait Islands was in my view 'appropriate' within s 66(1) because the location in Queensland shown for the death of the deceased in his birth certificate was a location there, as were the other locations for the second defendants and other material evidence for my purposes. The advertisement read as follows:

ESTATE OF JEFFREY STEPHEN ALAU late of House 17 The Settlement Wittenoon [sic] in the State of Western Australia Trades Assistant deceased intestate who died on the 31st January 1985 or 1st February 1985.

Would the father of JEFFREY STEPHEN ALAU born on 13th June 1940 at Yorke Island in Queensland whose mother was FELISHA ALAU and whose father may have been FRANK MOSBY or any children or grandchildren of the father of JEFFREY STEPHEN ALAU (any of whom may have an interest in his estate which is being administered by the Public Trustee) or any person claiming through any such person please send his claim to the Public Trustee at 565 Hay Street, Perth within two (2) months from the date of publication of this advertisement quoting reference D 88/1807/0 TP2.

20 The only result of the advertisement was responses by the second defendants indicating that they were persons within the words of the advertisement.

(Page 9)

21 There is no evidence before me of any notice having been given to the second defendants, or for that matter to Mr McFarlane, within the Trustees Act s 66(3). Counsel at the hearing before me on 9 May 2011 accepted that, absent such notice, my power to make an order under s 66(5) was enlivened only if I was satisfied in the terms emphasised from s 66(4).

22 Although at the hearing on 9 May 2011 I indicated I was attracted to that construction of s 66(4), on further reflection I am less attracted to it, at least in a case where, as here, actual or potential claimants have received notice of the trustee's application for orders under s 66(5). The second defendants did indeed receive such notice because the originating summons was served on Norman William Mosby in Kelso in Queensland and pursuant to an order for substituted service on Daniel William Mosby and Dan Murray Mosby by advertisement at the commencement of the proceedings published in a Brisbane, Queensland, newspaper. These forms of service are indicated in the affidavits of service I previously referred to. There was no appearance for the second defendants or indeed for the first defendant before me.

23 However, in my view, it is not necessary for me to arrive at a final conclusion as to the construction of s 66(4) in the respect that I have indicated. That is because, as I will explain, on the construction proffered by counsel for the plaintiff I am satisfied in terms of the language I emphasised from s 66(4).

24 On counsel's construction I must first determine who were the persons specified in the advertisement. In my view, they are 'the father of [the deceased] or any children or grandchildren of the father of [the deceased] (any of whom may have an interest in his estate which is being administered by the Public Trustee)'. The phrase quoted in parentheses in my view should be read to qualify the other quoted words in view of the reference in s 66(1)(a), the only limb of s 66(1) which in my view is relevant for my purposes, to 'any person who is, or may be, entitled' (emphasis added). In my view, it would not be sufficient then that a person is shown, in the information supplied to the trustee by the person in respect of whom the trustee has notice, or on information otherwise in the possession of the trustee, to be the father or one of any children or any grandchildren of the father of the deceased, if there is further information necessary to establish the entitlement which the trustee lacks.

25 In my view, there is such further information necessary where the deceased was, as here, not born of married parents. That further

(Page 10)

information is indicated by the Administration Act s 12A. The Administration Act s 12A in material part, as at all material times for my purposes, read as follows:

(1) Where, after the coming into operation of the Administration Act Amendment Act 1971, any person dies intestate as respects all or any of his property, for the purpose of determining who is entitled to participate in the distribution of that part of his estate to which the intestacy applies the relationship between a child and his parents shall be determined irrespective of whether the parents are or have been married to each other, and all other relationships, whether lineal or collateral, shall be determined accordingly.

(2) In any proceedings where a person relies on a matter of fact made relevant by the provisions of subsection (1) -


(a) that fact shall not be taken to be proved unless it is established to the reasonable satisfaction of the Court; and

(b) where the parents are not, or have not been, married to each other, the relationship between a child and his parent, and all other lineal or collateral relationships, shall be recognized only -


(i) if parentage is admitted by or established against the parent in his lifetime.

26 It is, in my view, apparent from the Administration Act s 12A that any person who is or is likely to be a person specified in the advertisement, must be a child or grandchild of a father of the deceased whose 'parentage is admitted by or established against [him] in his lifetime'.

27 Here there is no evidence that the parentage of Frank Mosby, the only parent on the material in the possession of the trustee relevant for my purposes, was 'established' against him in his lifetime.

28 There is no authority on 'established' which counsel's research or my own has produced. I accept that 'established' means established in legal proceedings and that there is no indication of any such in this case.

29 That would then leave for consideration whether there was an admission of parentage.

30 There are thus two fundamental matters I must address for the purpose of the originating summons as indicated by the first two questions it poses. The first is whether I am satisfied that in terms of s 66(4), the

(Page 11)

words emphasised, information supplied to the trustee by the person or otherwise in the possession of the trustee indicates that the person is not one of the persons specified in the advertisements, or is not likely to be one of those persons because the deceased is not the son of Frank Mosby. Secondly, if I am not so satisfied, the question is whether it has been established to my satisfaction that the parentage of Mr Frank Mosby was not admitted by Mr Frank Mosby during Mr Frank Mosby's lifetime.

31 I turn then to consider those two matters.

Application

32 As to the first, evidence that Frank Mosby was the father of the deceased is that already referred to as in the death certificate of the deceased which, by the Births, Deaths and Marriages Act 1997 (WA) s 57(3) is admissible in legal proceedings as evidence of the facts recorded in the entry.

33 There is also the evidence in a statutory declaration of Elder Kebisu Mosby of 14 September 1990 annexed to the Conlin affidavit of December 2009 and, finally, information provided by the daughter-in-law of Ms Pearson in a telephone conversation on 21 October 1998 and 15 July 1999 with the plaintiff's legal officer referred to in the Conlin affidavit of June 2011.

34 I have already referred to the first of these three.

35 As to the second, Elder Mosby declares he was born on 14 February 1918 and had lived on Yorke Island all his life, being an elder of the Yorke Island community. He declares he knew one of the second defendants, Dan Mosby, and also knew the deceased. He also states he knows Frank Mosby was the father of both Dan Mosby and the deceased, although does not state the basis of that belief. He further states that, as far as the Yorke Island community were concerned, they recognised Frank Mosby as the blood father of both.

36 However, the admissibility of the statement attributed to Elder Mosby was not clear to me. There appears to be no exception to the hearsay rule applicable to permit the admission of that material and the statutory declaration. At the same time, in my view this may not be of significance to the question of s 66(4), which simply refers to 'information'. This, in my preliminary view at least, would not be confined to admissible evidence.

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37 As to the third form of information, that provided by the daughter-in-law of Ms Pearson, she indicates that 'other people in the Torres Strait Islands had said that the deceased's father was Frank Mosby.' However, while I consider this was 'information' for the purposes of s 66(4), it is of a most non-specific kind and I would give it only slight weight, as tending to confirm the information from Elder Mosby.

38 Evidence that Frank Mosby was not the father of the deceased is that the deceased is not shown as the issue of Frank Mosby in Frank Mosby's Queensland death certificate. There is also the information provided by the daughter-in-law of Ms Pearson set out in the Conlin affidavit of June 2011, that Ms Pearson and the deceased were not 'taken in' by Frank Mosby's family after their mother died, but rather by others.

39 There is no other evidence or information as to the father of the deceased, except for a letter from Ms Pearson dated 18 November 1991 to solicitors in Queensland, forwarded to the plaintiff on 30 July 1992, as well as an entry in a record for the deceased at the Department of Community Services, Queensland, also sent to the plaintiff, both annexed to the Conlin affidavit of December 2009. Ms Pearson in the letter states that the second defendant Dan Mosby's relationship to the deceased was 'not recognized in the past, until now', while the Department of Community Services record shows the deceased's mother as 'Felisha Alau' but no entry for the father. It seems that the statement from the Department of Community Services is rendered admissible by the Evidence Act 1903 (WA) s 79C(2)(a), notwithstanding that the maker of the statement is not identifiable from the record. In any event, it seems to me it is 'information' for the purposes of the Trustee Act s 66(4).

40 I am not satisfied the information supplied by persons on whom the plaintiff might have served notice under s 66(3) or otherwise in the possession of the trustee indicated that the deceased is not the son of Frank Mosby. This is on the basis of the death certificate of the deceased and the statutory declaration of Elder Mosby. I accept that the basis for the statement of the informant in the death certificate, who was given as a funeral director in Port Hedland, is not given. However, there is no contrary admissible evidence.

41 I reach this conclusion, notwithstanding that a view has been expressed The Public Trustee v Gulvin [2004] WASC 140 [10], a decision of Master Sanderson, that s 12A(2) imposes a high standard of proof in matters of paternity and no basis, as I have indicated, for the funeral director's information was given.

(Page 13)

42 I consider that the Master's view refers to the requirement in the Administration Act s 12A(2)(b)(i) which is in addition to s 12A(2)(a). It appears that (b)(i) was his focus: see Gulvin [19]. The lack of a basis for the view of the informant would indeed make the statement of little value to matters in s 12A(2)(b)(i): see Gulvin [7].

43 On the basis of the admissible evidence I consider indeed that I have sufficient material before me to establish that Frank Mosby was the father of the deceased. I am of that view on the basis of the deceased's death certificate.

44 However, I consider that I have no admissible evidence or 'information' that Frank Mosby admitted his parentage of the deceased and, indeed, I have from the information obtained by the trustee within s 66(4), in my view, indications to the contrary; that is to say, that Frank Mosby did not admit his parentage of the deceased during his lifetime. The only information or admissible evidence in this regard is, it seems to me, that which appears in Mr Frank Mosby's death certificate by way of the failure to refer to the deceased as issue of Mr Frank Mosby, evidence of some but in my view relatively slight significance on Gulvin; as well as the matter in the letter of Ms Pearson of 18 November 1991, indicating that 'Mr Mosby was not involved in our family upbringing'. I would understand the reference to Mr Mosby in that letter as being to Frank Mosby.

45 As well, there is the evidence from the daughter-in-law of Ms Pearson indicating that Ms Pearson and the deceased were not '"taken in" by Frank Mosby's family after their mother died.' Their mother died, as I indicated, during the lifetime of Frank Mosby. The admissibility of the information provided by the daughter-in-law of Ellen Padal Pearson is, however, a matter it seems to me of some considerable difficulty. It appears to me fairly clearly to be hearsay. While it is 'information' for the purpose of s 66(4) the admissibility issue is as I have described it. In any event, the weight that should be given to that evidence is relatively slight as it is not clear from the statement where or how the daughter-in-law derived that information.

46 I leave aside the matter referred to in Elder Mosby's statement and the other statement attributed to the daughter-in-law of Ms Pearson having to do with what other people in the Torres Strait Islands had said about the father of the deceased. In both cases it seems to me that there is nothing of any significant weight that can be drawn so far as an admission by Frank Mosby is concerned.

(Page 14)

47 On the material that I have referred to, it seems to me, first, that in terms of s 66(4), on the information supplied to the trustee or otherwise in the possession of the trustee, there is the indication of the kind referred to in s 66(4) that Mr Frank Mosby, while the deceased's father, had not admitted during his lifetime his parentage of the deceased for the purposes of s 12A(2)(b)(i).

48 Further, confining my attention to the admissible evidence, slight as it is, it seems to me that I should come to the conclusion that Frank Mosby, while the father of the deceased, did not admit during his lifetime to that fact. I so conclude on the basis of the deceased's and Frank Mosby's death certificates, reminding myself again of the requirement from Gulvin that a high standard of proof in matters of paternity is called for. That high standard of proof as to an admission of paternity has not been met and it is by reference to Frank Mosby's death certificate that I come to that conclusion, noting that there is no matter of substantial significance against that conclusion, in my view.

Conclusions and orders

49 It follows from these reasons that, first, my power, on counsel's construction of Trustees Acts 66(4) to make an order under s 66(5) is enlivened. Further, I consider that, in terms of s 66(5), upon the material referred to in that section, there has not been established any entitlement of the second defendants, or of Mr McFarlane, through Frank Mosby to participate in the distribution of the estate of the deceased.

50 I therefore make the following orders:

1. the deceased was the son of Frank Mosby;

2. Frank Mosby did not admit his paternity of the deceased within the meaning of s 12A of the Administration Act 10-3 (WA);

3. the Public Trustee be at liberty to distribute the deceased's estate on the basis that it has not been established that the condition or requirement in Administration Act 1903 (WA) s 12A(2)(b)(i) has been met in respect of the father of the deceased, Frank Mosby.