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…

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 Thorpe v Thorpe

Details

AGLC: Thorpe v Thorpe [2021] WASC 75
Case: [2021] WASC 75
Decision Date

CaseChat Overview and Summary

The plaintiff, Joshua Thorpe, applied to the Supreme Court of Western Australia for a grant of letters of administration in respect of a will made by his grandmother, Joyce Eileen Thorpe, on 22 August 2001. The will did not name an executor, and the residuary beneficiaries are the plaintiff and the defendant, Trevor Robert Thorpe. The defendant initially opposed the application but subsequently consented to the grant of letters of administration to the plaintiff. The plaintiff also sought costs of and incidental to this action be paid by the defendant on an indemnity basis.

The court was required to decide whether the plaintiff was the appropriate person for the role of administrator of the estate and whether the costs of the action should be paid by the defendant on an indemnity basis or out of the estate. The court found that the will was validly executed and that the plaintiff was an appropriate person for the role of administrator of the estate. The court also determined that the plaintiff's costs of the action, fixed at $22,629.83, should 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.

The court granted the plaintiff's application for a grant of letters of administration with will annexed in respect of the will of Joyce Eileen Thorpe dated 22 August 2001. The court also ordered that 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.

Orders