Thorpe v Thorpe
[2021] WASC 75
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: THORPE -v- THORPE [2021] WASC 75
CORAM: KENNETH MARTIN J
HEARD: ON THE PAPERS
DELIVERED : 19 MARCH 2021
FILE NO/S: CIV 1736 of 2020
BETWEEN: JOSHUA THORPE
Plaintiff
AND
TREVOR ROBERT THORPE
Defendant
Catchwords:
Wills - Probate - Uncontested application for grant of letters of administration - No executor named in will - Costs payable out of estate
Legislation:
Wills Act 1970 (WA)
Result:
Application granted
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance |
| Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | HHG Legal Group |
| Defendant | : | In person |
Case(s) referred to in decision(s):
Daniels v Hall (as Administrator of the Estate of Arnold Edward Daniels) [No 2] [2014] WASC 272
The Public Trustee v Nezmeskal [2018] WASC 394
Timbury v Coffee (1941) 66 CLR 277
KENNETH MARTIN J:
Introduction
I am dealing with the application by the plaintiff, Joshua Thorpe, by his writ dated 2 July 2020. The plaintiff seeks a grant of letters of administration in respect of a will made by his grandmother, the late Joyce Eileen Thorpe, on 22 August 2001 (the Will).The plaintiff also initially sought costs of and incidental to this action be paid by the defendant, Trevor Robert Thorpe, on an indemnity basis.
The late Joyce Eileen Thorpe (Mrs Thorpe) died on 12 June 2019. The residuary beneficiaries of the Will are the plaintiff (Mrs Thorpe's grandson) and defendant (Mrs Thorpe's son and the plaintiff's uncle). No executor was appointed by the Will.
The defendant had initially opposed the application. However, the defendant has subsequently indicated to the court that he no longer wishes to oppose a grant of letters of administration to the plaintiff.
A Registrar of this court programmed this matter to a final determination by trial before me. On 8 September 2020, it was ordered the matter be listed for hearing on an undefended basis, but reserving both parties' right to be heard as to costs (order 4). With the parties' consents, I proceed to determine the matter on the papers (order 5).
Background
The Will
Mrs Thorpe was born in April, 1931 and died on 12 June 2019 in Rockingham, Western Australia. On or about 22 August 2001, she had executed a will being the Will in question (annexed to the affidavit of Joshua Thorpe affirmed 21 October 2020, JT-1). There does not appear to be any issue over the validity of the Will as executed.
Under the Will, Mrs Thorpe left her estate to her husband. However, if his death preceded hers (as it did), her estate was then to be given in equal shares to her two sons, Timothy Noel Thorpe (the plaintiff's late father), and the defendant (with a provision to set aside for her estranged daughter, Robyn Lola Coleman). If either son died before Mrs Thorpe, the Will then directed that their portion of the estate be given and held on trust for their children. That is, as matters transpired, concerning her late son Timothy Thorpe, Joshua Thorpe (the plaintiff). Various other items from Mrs Thorpe's estate were distributed via the Will.
Timothy Thorpe died before his mother. Accordingly, the plaintiff and his uncle, the defendant Trevor Thorpe are the joint residuary beneficiaries of Mrs Thorpe's estate, held for them in equal shares.
The estate appeared to be valued at some $188,584.82 (affidavit of Joshua Thorpe affirmed 21 October 2020, JT‑2). As mentioned, Mrs Thorpe's Will did not appoint an executor.
Administration of the Will
In December 2019, the defendant had filed an application in the Probate division of this court seeking a grant of letters of administration to himself in respect of the Will (being PRO 6427 of 2019).
The plaintiff alleges that after Mrs Thorpe's death, the defendant had represented to the plaintiff that he (that is, the defendant Trevor Thorpe) was the executor of the estate. That was said to the plaintiff, it is put, despite the fact that there was no named executor at all in the Will (as is evident). As the plaintiff did not then have access to the Will, or a copy, he says he had relied upon the defendant's representation at the time.
In October 2019, the defendant, through solicitors then acting for him, had requested the plaintiff to sign a Notice of Consent to his application for a grant of letters of administration. The plaintiff exchanged text messages with the defendant, seeking a copy of the Will - before he would agree to sign that Notice of Consent. The defendant then refused to provide the plaintiff with a copy of the Will.
The plaintiff next proceeded to contact the defendant's solicitor. He was then informed the Will did not name an executor.
Thereafter, the plaintiff refused to provide consent to any grant to the defendant. He subsequently commenced these proceedings seeking that he be appointed as administrator of the estate.
Evidence before the court
In support of the present application, the plaintiff relies on and reads affidavits of:
(a)(the aforementioned) Joshua Thorpe, affirmed on 21 October 2020, which provided evidence in support of his application, including some background to the proceedings and some asset information concerning Mrs Thorpe's estate;
(b)Joshua Thorpe, also affirmed on 21 October 2020 (the affidavit of scripts). This affidavit provided background evidence regarding the execution of Mrs Thorpe's Will and annexed a copy of the Will;
(c)Joshua Thorpe, affirmed on 27 October 2020, which provided evidence of Mrs Thorpe's death, including her official death certificate; and
(d)Murray Noel Thornhill sworn on 7 September 2020. This affidavit detailed evidence of the plaintiff's request for consent for letters of administration from the defendant.
I have considered all of the above materials in reaching a determination in this action.
Issue in dispute
As previously stated, the plaintiff applies to this court for a grant of letters of administration of the Will. By his defence pleading of 31 August 2020, the defendant had initially opposed the plaintiff's application and submitting then that the plaintiff was not an appropriate person for the role of administrator of Mrs Thorpe's estate.
However, under later written submissions of 30 October 2020, the defendant changed his position. From then, he advised of his consent to the grant to the plaintiff (par 1). Accordingly, the issue of who is the appropriate person for the role of administrator of the estate, is no longer in dispute. Orders to that end should follow.
Although not in dispute, I must nevertheless also render a formal finding as to the validity of the Will. On the evidence before me, I am fully satisfied the Will was executed in compliance with s 8 of the Wills Act 1970 (WA). Further, I accept that a presumption of testamentary capacity would apply in this case (Timbury v Coffee (1941) 66 CLR 277, 283, see also The Public Trustee v Nezmeskal [2018] WASC 394 at [39]).
Therefore, the only residual issue that remains is the determination of costs for this action.
Costs
As expressed in the plaintiff's writ, he seeks his costs of and incidental to this action be paid by the defendant on an indemnity basis.
However, I note that, more typically, the orthodox costs position in matters of this character is for a successful applicant to receive their 'out of pocket' legal costs to be paid out of the estate as the court directs, unless, or to the extent that, the court is satisfied that the executor or proposed administrator has acted unreasonably, or has acted for his or her own benefit rather than for the benefit of the fund - see the Rules of the Supreme Court 1971 (WA) O 66 r 9(2); see also Daniels v Hall (as Administrator of the Estate of Arnold Edward Daniels) [No 2] [2014] WASC 272 at [19] - [22].
Prior to my determination of this matter I had advised the parties, through an email via my Associate, of, in effect, that usual position as to costs orders. They were invited to make further submissions as to costs, should either party seek alternate costs orders.
The plaintiff by his solicitors, advised that he was content to proceed on the usual basis.
By email of 22 February 2021, the defendant advised that after careful consideration he had decided to end what he referred to as a 'drawn out saga', to reduce further costs.
Following receipt of this advice I enquired further via my Associate from the plaintiff's solicitors what the level of the costs that had been incurred actually was. This was done in order for me to evaluate and that I might, given the sad history of the matter, fix the costs to be paid out of the estate - in order to provide certainty for all parties going forward.
On 17 March 2021 the plaintiff's solicitors advised by letter that the plaintiff's costs of the action were $22,629.83 including GST and disbursements. Having regard to the information provided, I assess in the circumstances that such costs are of a reasonable magnitude and so, should be allowed as claimed. As I indicated to the parties, I will make those costs paid out of the estate.
Final orders
As such, I will issue the following orders contemporaneously with the publication of these reasons to the parties by email and over the court's website:
1.The Probate Registry grant letters of administration with will annexed in respect of the Will of Joyce Eileen Thorpe dated 22 August 2001 to the plaintiff.
2.The plaintiff's legal costs incurred in bringing the present application, fixed at $22,629.83, are to be paid out of the estate as an obligation of first ranking priority prior to distributions of the balance of the estate between the residuary beneficiaries.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Research Associate to the Honourable Justice Martin
19 MARCH 2021
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