Wood v Melvin - [2023] WASC 291

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   WOOD -v- MELVIN [2023] WASC 291
CORAM:   LEMONIS J
HEARD:   24 JULY 2023
DELIVERED          :   8 AUGUST 2023
FILE NO/S:   CIV 1369 of 2022
BETWEEN:   RAELENE JANICE WOOD
Plaintiff
AND
ASHLEY GORDON MELVIN
First Defendant
LINLEY SUE HOOPER
Second Defendant
PATRICIA ERICA BELL
Third Defendant
JODIE MAREE MELVIN
Fourth Defendant
KEITH MELVIN
Fifth Defendant
JODIE MAREE MELVIN
First Plaintiff by Counterclaim
KEITH MELVIN
Second Plaintiff by Counterclaim
AND
ASHLEY GORDON MELVIN
First Defendant by Counterclaim
LINLEY SUE HOOPER
Second Defendant by Counterclaim
PATRICIA ERICA BELL
Third Defendant by Counterclaim
RAELENE JANICE WOOD
Fourth Defendant by Counterclaim

Catchwords:

Grant of probate in solemn form - All interested parties agree both as to the grant of probate in solemn form and as to who should be appointed administrator of the estate - As a consequence of such agreement, limited evidence was led at trial - Consideration of the applicable principles and whether probate should be granted in solemn or common form

Legislation:

Administration Act 1903 (WA)
Family Provision Act 1972 (WA)
Law Reform (Miscellaneous Provisions) Act 1941 (WA)
Rules of the Supreme Court 1971 (WA)
Wills Act 1970 (WA)

Result:

Grant of probate in solemn form; administrator of estate appointed

Representation:

Original Action

Counsel:

Plaintiff	:	R J Nash
First Defendant	:	D Markovich
Second Defendant	:	T Lethbridge
Third Defendant	:	D Markovich
Fourth Defendant	:	M N Blandford
Fifth Defendant	:	M N Blandford

Solicitors:

Plaintiff	:	Hale Legal
First Defendant	:	Lane Buck & Higgins (Narrogin)
Second Defendant	:	Croftbridge
Third Defendant	:	Lane Buck & Higgins (Narrogin)
Fourth Defendant	:	Granich Partners
Fifth Defendant	:	Granich Partners

Counterclaim

Counsel:

First Plaintiff by Counterclaim	:	M N Blandford
Second Plaintiff by Counterclaim	:	M N Blandford
First Defendant by Counterclaim	:	D Markovich
Second Defendant by Counterclaim	:	T Lethbridge
Third Defendant by Counterclaim	:	D Markovich
Fourth Defendant by Counterclaim	:	R J Nash

Solicitors:

First Plaintiff by Counterclaim	:	Granich Partners
Second Plaintiff by Counterclaim	:	Granich Partners
First Defendant by Counterclaim	:	Lane Buck & Higgins (Narrogin)
Second Defendant by Counterclaim	:	Croftbridge
Third Defendant by Counterclaim	:	Lane Buck & Higgins (Narrogin)
Fourth Defendant by Counterclaim	:	Hale Legal

Cases referred to in decision:

Barry v Butlin [1838] Eng R 1056
Cahill v Rhodes [2010] NSWSC 561
Devine v Richardson [2019] WASC 272
Gornall v Mason (1887) 12 PD 142
In the Will of Steward, deceased [1964] VR 179
Palin v Ponting [1930] P 185
The Public Trustee v Gerritsen [2012] WASC 201
Timbury v Coffee (1941) 66 CLR 277
Tolson v Hender [2009] WASC 319
Wheatley v Edgar [2003] WASC 118

LEMONIS J:

Mrs Marlene Janice Melvin passed away on 23 August 2021. Mrs Melvin was born on 26 November 1933 and was 87 years of age when she passed away. Mrs Melvin left property in Western Australia. These proceedings relate to Mrs Melvin's estate and came before me for trial.
Mrs Melvin…

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 Wood v Melvin

Details

AGLC: Wood v Melvin [2023] WASC 291
Case: [2023] WASC 291
Decision Date

CaseChat Overview and Summary

In the case of Wood v Melvin, the dispute involved the administration of the estate of Marlene Janice Melvin, who passed away leaving a will made in 1980. The primary issue before the court was whether Raelene Wood should be appointed as the administrator of Mrs Melvin's estate under section 36 of the Administration Act 1903 (WA), given that the appointed executors were either deceased or unwilling to take probate. The court had to determine if the conditions for exercising the discretion to appoint an administrator were met and, if so, whether Raelene Wood was a suitable candidate for the role.

The legal issues centred on the interpretation of section 36 of the Administration Act, specifically the phrase "having appointed an executor who is not willing and competent." The court had to consider whether the circumstances justified exercising the discretionary power to appoint an administrator. The court also had to assess the suitability of Raelene Wood as an administrator, taking into account the interests of other potential beneficiaries and the potential conflicts of interest involved.

The court found that the conditions for exercising the discretion under section 36 of the Administration Act were met since the appointed executor, Ashley, was unwilling to take probate. Furthermore, the court held that Raelene Wood was an appropriate person to be appointed as the administrator, given that she was supported by all parties and had no conflicts of interest. The court concluded that Raelene Wood should be appointed as the administrator of Mrs Melvin's estate.

The court granted the relief sought by the parties, pronouncing the 1980 will as having force and effect as Mrs Melvin's last will and testament. A grant of letters of administration with the 1980 Will annexed was settled in favour of the plaintiff, Raelene Wood. The court also ordered that the parties' costs of the action, including the counterclaim, be paid out of the estate of the deceased to be taxed if not agreed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Section 36 of the Administration Act 1903 (WA) provides:36. Administration with will annexedWhere a person dies leaving a will but without having appointed an executor, or leaving a will and having appointed an executor who is not willing and competent to take probate or is resident out of Western Australia, the Court may appoint an administrator of the estate of the deceased, or of any part thereof, and such administration may be limited as the Court thinks fit. The critical phrase here is 'having appointed an executor who is not willing and competent'. The purpose of the provision is to facilitate the due administration of the relevant estate. That being so, the discretion arises where the named executor is unwilling, or is incompetent, or both. Mrs Melvin appointed three executors under the 1980 will. Firstly Mr Melvin, and then if he died before Mrs Melvin, Robin and Ashley. Mr Melvin and Robin have both passed away. Ashley does not seek the appointment himself and consents to Raelene being the administrator. In this respect, Ashley quite properly recognises the potential conflict of interest that might arise if he were appointed executor given the other proceedings that I have mentioned. That conflict of interest is not one that it could be said Mrs Melvin consented to when she made the 1980 will, because it arises out of proceedings commenced many decades after the 1980 will was made. Given that Ashley is not willing to take probate of the 1980 will, the preconditions to the exercise of the discretion afforded by s 36 of the Administration Act are therefore met. In relation to the exercise of the discretion itself, Raelene's counsel accepts that Jodie and Keith have the next highest interest and ordinarily the grant would be made to one or both of them. However Jodie and Keith do not seek the appointment themselves, also quite properly recognising the potential conflict of interest that might arise given the other proceedings. All parties support Raelene's appointment as administrator and Raelene consents to that appointment. Further, on the material before me, Raelene is clearly an appropriate person to be appointed administrator. In all of these circumstances, I am satisfied that Raelene should be appointed the administrator of Mrs Melvin's estate. I am satisfied that the parties should be granted the relief that they seek. The parties all consent to orders in the following terms:1.That the will of the late Marlene Janice Melvin (Deceased) made on 24 September 1980 (1980 Will) be pronounced as having force and effect in solemn form of law as the Deceased's last will and testament.2.A Probate Registrar of this Court settle a grant in solemn form of letters of administration with the 1980 Will annexed in favour of the plaintiff. 3.The parties' costs of this Action, including the counterclaim, be paid out of the estate of the Deceased to be taxed if not agreed. Those orders are appropriate in light of these reasons. I make orders in those terms.