MATTER : The estate of ERMINIA AGNES ROGERS late of 11B Padbury Circle, Sorrento, Western Australia, dec

Probate - Executors - Failure to pass accounts - Persistent failure - Revocation of probate - Orders for delivery up of probate - Order for examination of former executor - Liberty for other beneficiary to apply for grant of unadministered estate

Administration Act 1903 (WA)

Supreme Court Act 1935 (WA)

Order for delivery up of original grant of probate for cancellation

Order for examination of former executor as to extent and state of partial administration

Liberty for other beneficiary to apply for grant of representation of unadministered estate

Bates v Messner [1967] 1 NSWR 638

Dear v Rich (As Administratrix of the Estate of J H Myslis, dec) (1920) 22 WALR 69

In the estate of Mack [1962] NSWR 1029

In the estate of Robinson (1902) 19 WN (NSW) 158

In the estate of Shaw [1905] P 92

Kidd v Collins (1910) 12 WALR 125 (F Ct)

Phelan v Booth (1941) 43 WALR 60

Porteous v Rhinehart (1998) 19 WAR 495

Re Campbell (dec) [1961] QWN 45

Re Loveday [1900] P 154

Schlam v Connolly [1962] WAR 134

Spencer v Spencer [2009] WASC 198

1 EM HEENAN J: This is an application in the estate of Erminia Agnes Rogers, late of 11B Padbury Circle, Sorrento, deceased, who died on 23 March 2005.

2 Mrs Rogers left a will appointing her son, John William Rogers, as executor of the will and trustee of the trusts arising out of it. She also provided by cl 3 of that will that, if John William Rogers is or becomes unwilling to act as executor of her will and trustee of the trusts arising under it, another son, Brian David Rogers, of 11B Mary Street, Waterman, be appointed trustee and executor of the will and trustee of the trusts. Her will went on to provide that the trustee should pay all debts, testamentary and other associated expenses, and thereafter that all the assets should be distributed equally among her named children, eight in all. There were then various other enabling powers.

3 Probate of that will was granted to John William Rogers by this court on 23 August 2006. He then embarked upon the administration of the estate. From what I was informed at a previous hearing of this application on 20 August 2009, the principal asset of the estate was a house but there was also a variety of bank and other deposit accounts. I was informed that the house had been sold and that there had been at least one, perhaps more, partial distributions of the estate to the various beneficiaries but that the estate had gone without full administration for quite some time. Eventually after approaches by other members of the family direct to the executor had not produced effect those other members communicated with this court complaining that the estate had not been administered.

4 The result of that was that a registrar of this court gave notice on 22 May 2008 for the executor to pass accounts and eventually an appointment for the passing of accounts was fixed on 21 October 2008. The executor did not appear at that appointment.

5 Members of the family then made representations to the Court seeking that steps be taken to finalise the estate and this matter was referred to me on 3 August 2009 pursuant to Non-Contentious Probate rule 4.4. I listed the matter for hearing on 20 August 2009 and gave notice to the executor of his obligation to pass accounts and alerting him to the possibility that an order might be made removing him and appointing another trustee in his stead. The executor was also advised that the Court would inquire whether any of the other beneficiaries desired to commence legal proceedings against the him for a general administration order or for his removal or otherwise.

6 Notice of that application was given to the other beneficiaries. The matter came on before me on 20 August 2009. On that occasion Mr John William Rogers, appeared alone and most of the other members of the family also appeared in person. Their spokesman was Mr Brian Rogers, the substitute executor named in the will.

7 I ordered that Mr John William Rogers should prepare an affidavit setting out the steps which he had taken in the administration of his mother's estate, including a description of the sale of the house, the price it fetched, any realisation of other assets, any partial distributions and the payment of accounts. This affidavit was also to set out income which had been earned by the estate as interest or dividends or in any other way. The executor was ordered to prepare that affidavit and have it filed in the Court and served on each of his brothers and sisters within 21 days.

8 I also directed that the executor should prepare a plan of distribution showing how and when he proposed to distribute the balance of the estate, and I ordered that these proceedings should be adjourned for a further hearing after there had been an opportunity for his brothers and sisters to examine the accounts and to satisfy themselves that they gave a complete account of the estate affairs.

9 I indicated that once the executor's brothers and sisters had had an opportunity to satisfy themselves as to the reliability of the account of the administration which had been given, that I would consider afresh the desire of the other beneficiaries to have Mr John William Rogers removed as executor. I indicated that if there were no substantial progress or if the accounts revealed an unsatisfactory state of affairs or if there were no prospect of an immediate distribution that the prospects of the executor being removed were not inconsiderable. Mr John William Rogers assured me that all necessary steps would be taken.

10 By letter of 2 November 2009 to the persons interested in the estate I relisted this matter for hearing today. At the time it was relisted there had been no apparent compliance with the orders and directions which I had made on 20 August 2009, no affidavit stating the state of administration or giving accounts and no plan of distribution.

11 Since then an affidavit sworn on 18 November 2009 has been filed. It confirms that nothing had been done. However, it explains that Mr John William Rogers was unfortunately injured in an accident on 28 August 2009 and had been hospitalised. He has experienced severe trouble with his vision and has had surgery, but he hopes that with the assistance of a friend who is a retired bank manager whom he has recently approached he can comply with his obligations in the near future. In this affidavit Mr John William Rogers says that of the estate valued at approximately $2.5 million, no details of which have been provided, there remains approximately $25,000 in a bank account and about $200,000 in unsold shares. He believes that approximately 50% of the net remaining estate will be needed to meet tax liabilities.

12 His solicitor, who has appeared today for the first time, presses me with the desirability of allowing Mr John William Rogers an opportunity to complete the administration. He points to disadvantages, possible disruption and further delay if there is to be a change in executorship.

13 Those matters have been considered by Mr Brian Rogers, who is here present with one of his sisters and co beneficiaries. They have made it plain that like other members of the family, reluctantly they have come to the point that they are not satisfied that Mr John William Rogers is able to administer the estate and that the time has come for a change to be made. I agree that that is the case and that fresh steps have to be taken to see to the due administration of this long overdue winding up.

Power to revoke grant of probate or of administration

14 In this estate there has not, so far, been any formal application by any other beneficiary or party to revoke the grant of probate made by this court to the executor, John William Rogers, in August 2006. Nor have independent proceedings been commenced by any person seeking that or related relief. Nevertheless, other children of the deceased, equal residuary beneficiaries with the executor, have written to the court and have appeared on this application indicating their desire to have the executor removed and a new grant of representation made in the circumstances which have happened. The questions which therefore arise are whether the court can, and should, order any revocation of the grant of probate effectively of its own motion.

15 By s 29 of the Administration Act 1903 (WA) it is provided that:

29**. Court may revoke grant of administration**

(1) Where administration of the estate of a person has been granted the Court may, at any time, upon the application of any person interested in the estate or of its own motion on the report of the Principal Registrar, revoke the administration.

16 It may be open to question whether or not that power is confined to grants of letters of administration made by the court, as distinct from grants of probate, because a dichotomy between such grants appears to exist in ss 3, 6 - 8 and elsewhere in the Administration Act. No point about this was made in the present proceedings and it therefore seems desirable that I do not attempt to determine whether or not that is so, leaving it for resolution, if necessary, on some future occasion.

17 RSC O 73 contains the rules of court dealing with contentious probate proceedings which include any action for the revocation of a grant of probate or letters of administration. That rule provides that, except where otherwise directed, an application to the court in a probate matter may be made by summons. In the exceptional case in which the court so directs the application may be made by motion. This does not apply in the present case because no contentious proceedings have been commenced.

18 In non-contentious probate matters the practice and procedure is controlled by the Non-Contentious Probate Rules. These include the following regulations:

(1) The Registrar may exercise the powers of a Judge in Chambers in and about the granting of probate and administration, and in and about the granting to the Public Trustee of orders to administer the estates of deceased persons, and may transact all such business and exercise all such powers and authorities in respect of voluntary or non-contentious probate jurisdiction as under the Act, the Supreme Court Act 1935, the Public Trustee Act 1941, the Rules of the Supreme Court 1971, or these rules, may be transacted or exercised by a Judge in Chambers except in respect of the following proceedings and matters, that is to say -

(a) applications and orders under under s 26(2) and (6) of the Act;

(b) subject to the provisions of r 35(1) and (2) applications and orders under s 29 of the Act, and

(c) applications under s 64 of the Act to remove caveats.

(2) Nothing contained in these rules derogates from or limits the jurisdiction or powers conferred by the Act on a Registrar.

(3) The Registrar may require an application made to him to be brought by summons, and may require an application made to him, whether by summons or otherwise, to be brought before a Judge by summons or before the Court on motion.

(4) Without prejudice to the provisions of sub-rule (3), where a matter appears to the Registrar proper for the determination of a Judge, the Registrar may refer it to a Judge, the Judge may either dispose of the matter or refer it back to the Registrar with such directions as he may think fit.

35. Amendment and revocation of grant

(1) Where the Registrar is satisfied that a grant should be amended or revoked, he may make an order accordingly.

(2) Except in special circumstances, a grant shall not be amended or revoked under this rule other than on the application or with the consent of the person to whom the grant was made.

(3) Where an order has been made for the amendment of a grant, the original grant shall be produced to the Registry for notation, or its non-production accounted for.

(4) Where an order has been made under the Inheritance (Family and Dependants Provision) Act 1972 the original grant shall be produced to the Registry, together with a certified copy of the order and 2 photographic copies thereof.

19 Accordingly, the Registrar does have power to entertain applications for the revocation of a grant of administration pursuant to s 29 of the Administration Act, subject to the provisions of r 35, as well as possessing the general jurisdiction of a Judge to transact all such business and exercise all such powers and authorities in respect of voluntary or non-contentious probate jurisdiction, as is set out in r 4(2) subject to the exceptions mentioned.

20 This still leaves the question of whether or not the court or a Registrar has a statutory power to revoke a grant of probate, as distinct from a grant of administration, under s 29 of the Act and, if so, what may be the special circumstances which would allow the court or the Registrar to revoke a grant without the consent of the person to whom the grant was made - r 35(2).

21 In the recent case of Spencer v Spencer [2009] WASC 198, when dealing with an application for revocation of letters of administration brought by summons by the grantee I observed, in an obiter dictum [14], that in this State even a non-contentious application for revocation of a grant of administration must be heard and determined by a Judge citing Non-Contentious Probate Rules 1967 r 4(1)(b). That observation was unnecessary for the resolution of any matter in issue in Spencer v Spencer and, on reflection, was stated too widely. Clearly it is the case that an application for revocation of a grant of administration made under s 29 of the Act and one to which the administrator consents, may be granted by a Registrar. In addition, in exceptional circumstances, such an order may be made by a Registrar even if the administrator does not consent. What is the situation with respect to applications for revocation made otherwise than under s 29 of the Act or, if made under s 29, where there may be doubt as to whether the circumstances are exceptional, remains to be addressed. Those questions are, inevitably, closely bound up in the general statutory and inherent jurisdiction of the court to revoke grants of representation whether grants of probate or grants of letters of administration.

22 Any narrow questions as to the extent of the probate jurisdiction of the court are resolved by the ample grant of jurisdiction upon the court contained in s 18 of the Supreme Court Act 1935 (WA) which provides:

18. Probate jurisdiction

The Supreme Court shall have voluntary and contentious probate jurisdiction and authority in relation to the granting or revoking of probate of wills and letters of administration of all real and personal estate whatsoever within Western Australia and its dependencies of any deceased person; and all such powers and authorities in respect of such jurisdiction as were given to the Court by the Administration Act 1903, and any other Act in force in Western Australia immediately before the commencement of this Act, with authority to hear and determine all questions relating to testamentary causes and matters.

23 There is a wide variety of circumstances under which revocation of a grant of probate or letters of administration, which have not been the subject of proof in solemn form, may be made. Broadly, these may be divided into two categories. The first being where it is discovered that there is some error which has been made in the grant of representation or where the particular grant should not have been made (for example, the discovery of a later will, or of a subsequent marriage which revoked the will in question). The second category includes revocations made necessary or desirable to ensure the due administration of the estate such as, for example, where the grantee becomes sick or disabled, or has disappeared. The ultimate purpose of the court is to ensure the due and proper administration of the estate and of the interests of the parties beneficially entitled to it - see Halsbury's Laws of England (4th ed, Reissue) par 259 and Re Loveday [1900] P 154. For a detailed discussion of the various examples where revocation may be justified see Tristram & Coote's Probate Practice (29th ed) pars 17.01 - 17.33 and Williams, Mortimer & Sunnucks 'Executors & Administrators of Probate' (18th ed, 2000) pars 27-15 - 12-30.

24 Examples of where a grant of probate or administration will be revoked in order to enhance the due and proper administration of the estate are to be found in the cases. One, already mentioned, is where the grantee becomes incapable of administering the estate - see In the estate of Shaw [1905] P 92; In the estate of Mack [1962] NSWR 1029; In the estate of Robinson (1902) 19 WN (NSW) 158 and Re Campbell (dec) [1961] QWN 45.

25 Another example is where the grantee has persistently neglected or refused to carry out due administration: In the estate of Mack (supra); Bates v Messner [1967] 1 NSWR 638; Phelan v Booth (1941) 43 WALR 60; Dear v Rich (As Administratrix of the Estate of J H Myslis, dec) (1920) 22 WALR 69 and Mavridos v Mack (1998) 45 NWSLR 80. A third is where the grantee is guilty of gross misconduct: Bates v Messner (supra) and Phelan v Booth. For these and other examples of grounds for revocation see Halsbury's Laws of Australia, vol 24 [395 - 3425].

26 Dear v Rich (As Administratrix of the Estate of J H Myslis, dec) is of particular relevance because it is a case of revocation on the ground of the failure by the administrator to pass accounts as required by the Administration Act. That was an application made pursuant to the former s 27 of the Administration Act (see now s 29). At 71 McMillan CJ said:

Then comes the question of whether sufficient grounds are shown for revoking the letters of administration. Various complaints are made by the administratrix, but I think it is sufficient to say that she ought to be removed because she has omitted, without any excuse being suggested, to pass the accounts which it is her duty to pass under the Act. Although much time has elapsed she has not up to the present carried out that duty which is imposed on her. I think, therefore, on looking at all the facts in this case, that it is one in which the court ought to revoke the letters of administration which have been granted, but at present I am not in a position to say that administration should be granted to any particular person... I think we ought to do no more at present than revoke the administration, and give liberty for a fresh application to be made on behalf of some person who is ready to be appointed.

28 Phelan v Booth was a case of a revocation of a grant of probate where the executor had neglected and refused to administer the estate. An order had been made requiring the executrix to perform the trusts of the will and to bring in an account of her administration but she refused to comply, thereupon being attached for contempt and taken into custody. In a subsequent claim for revocation of the grant of probate Northmore CJ held that the court had an inherent power to revoke or suspend a grant of probate or administration observing, at [61]:

It is not in doubt that that a Court which makes a grant of probate or administration has inherent power to revoke or suspend such a grant for just cause, and although, so far as I am aware, there is no recorded case in which that power has been exercised in circumstances exactly similar to the circumstances of this case, I can see no material difference, in principle, between the case of a grant becoming inoperative by reason of the physical or mental incapacity of the executor to administer the estate, and the case of one, who, like the defendant, contumaciously refuses to do so.

29 In the result the Chief Justice ordered that the grant made in favour of the defaulting executrix should be impounded, that a statutory trustee company should be appointed as administrator 'de bonis non, cum testamento annexo' for the use of the defendant until she should purge her contempt and undertake to do all such things, and execute all such instruments and deeds as should be required to vest in possession in the plaintiffs their respective interests under the will.

30 In In the estate of Mack [1962] NSWR 1029 a grant of probate had been made to two executors. Some years later one became of unsound mind and the other had resided for six years out of the jurisdiction and his current whereabouts were not known. The second executor had made no attempt to administer the estate since leaving the jurisdiction. In the circumstances, Myers J revoked the grant, limited until the incapable executor should become of sound mind, and revoked the grant unconditionally against the absent executor.

31 These authorities demonstrate that, in circumstances such as the present, there is power for the court to revoke a grant of probate, or for that matter a grant of administration, on the grounds of persistent failure by the grantee to administer the estate, at least when such an application is brought in proceedings commenced for that purpose, or by a person interested in the administration under s 29 in a case of a grant of administration. The point of procedure which, therefore, presently arises is whether or not such relief may be granted by the court on its own motion where no formal proceedings had been initiated by a beneficiary under the will proved. In rather different circumstances a similar power to remove was assumed rather than decided in Kidd v Collins (1910) 12 WALR 125 (F Ct). However, I am satisfied that in circumstances like the present the court may, of its own motion, once the relevant facts have been brought to its attention and established, take such steps as are necessary to conduce to the proper administration of the estate. That was the approach taken by the Full Court in Schlam v Connolly [1962] WAR 134.

32 It must, of course, be acknowledged that the removal of a grantee of representation is a very major step, even more so where it involves the removal of an executor who must be taken to have been chosen by the testator as the person considered suitable to perform the task of administration and the person most desired by the testator to perform that role. For these reasons, the court must always be very cautious and sparing in the exercise of this power. This accounts for the reluctance shown in the cases to make such orders too readily or, in a case of an incumbent executor or administrator who wishes to carry on, without allowing that incumbent an opportunity to repair or remedy any defects and progress promptly with due administration: see generally Porteous v Rhinehart (1998) 19 WAR 495.

33 In this State the common response, when complaints are made to the court about delays or failures by a personal representative to proceed with due administration, has been to give notice to the executor or administrator to pass accounts under s 44(1) of the Administration Act. In many, if not most, of such cases that is sufficient to spur a dilatory personal representative to act but in a number of cases the notice is ignored. The next step in the process, at least as shown by past practice, has been to institute proceedings against the personal representative under s 44 with a view to obtaining an order for him or her to file accounts under s 44(2). There is a disadvantage in proceeding in that fashion because further delay will almost inevitably result: sometimes the defaulting personal representative will remain unresponsive, and in that case it is open for the court to commit the defaulting representative for contempt of court for disobeying the order - as was done in Phelen v Booth (supra). While that is still a formidable sanction it still may not result in the necessary accounts being filed or passed or in the prompt administration of the balance of the estate. Phelan v Booth demonstrates the situation which can arise if the defaulting grantee is placed in custody and a temporary grant must then be made to some other. While it is certainly possible for that procedure to be pursued, I consider that in many cases it would be more efficient, and involve better chances of prompt administration, if, on the failure to pass accounts, an application such as this were to be made even if this is as the result of the referral to a Judge by a Registrar under r 4(4) of the Non-Contentious Probate Rules.

34 Once a referral to a Judge has been made under r 4(4) the Judge becomes seized of all matters relating to the administration of the estate in the probate jurisdiction and has the full amplitude of powers conferred by s 24 of the Supreme Court Act and in the inherent jurisdiction. These powers are not limited to those additionally conferred under s 29 of the Administration Act nor under the Non-Contentious Probate Rules. It would seem that in such cases if the matter came before a Registrar, a Registrar would also have a similar plenitude of power and jurisdiction by reason of non-contentious probate rule 4(1) subject, however, to the limitation on the powers exercisable under s 29 of the Administration Act which are imposed by rule 35. If I am correct in the provisional view that s 29 applies only to grants of administration and not to grants of probate, which for the present I am assuming because it is unnecessary in this case to decide that, it would mean that the Registrar would have the power to revoke a grant of probate in a case such as the present.

35 The question which then arises is when an order is made revoking the existing grant what further order, if any, should be made about future representation of the estate. There may be occasions where the applicant for revocation joins with that application a further application to be appointed as substitute executor or administrator for the non-administered part of the estate. In that eventuality, the application may entail: giving notice to other persons who may have an equal right to apply for administration; showing the eligibility of the applicant; swearing to readiness to administer the estate according to law; and, otherwise, complying with the requirements of the Non-Contentious Probate Rules insofar as they may apply to such a new special grant. If that were to be done, there would seem to be no reason why the order revoking the existing grant of probate or letters of administration should not immediately be followed by a new order for a limited grant of probate or letters of administration.

36 However, that was not sought in the present case and the substitute executor, Mr David Rogers, has not filed any papers formally entitling him to a substitute or a limited grant, although he has indicated a willingness and preparedness to do so as soon as possible. In such an instance, I do not consider that the court should make any new grant, until there is an application in proper form which would enable such a grant to be made. While I realise that this may have an inconvenient hiatus where there is no individual presently vested with the legal title to the unadministered property of the estate, the probabilities are that estate vests temporarily in either the Public Trustee or in the State itself pending a new grant. This issue was not addressed in the proceedings before me and nothing which I have said in this regard should be treated as any determination of that question if it becomes necessary to address it in future.

37 To ensure that the former executor can no longer deal with estate assets it is necessary for an order to be made for him to deliver up to the registry for cancellation the original of the grant of probate first made. To enhance the proper administration of the unadministered estate and to enable a proper accounting to be undertaken, it will also be necessary for the former executor to deliver up to the registry all instruments of title, records of bank accounts or other estate property to be held pending a further grant. I also consider that the executor should be required to appear before a Registrar of this court, on a date to be fixed, for examination by or at the instance of any newly appointed executor or administrator to answer questions on oath or affirmation about the nature and extent of his partial administration and the location of any unadministered estate assets as well as to give an account of the period of his incomplete administration.

38 Accordingly I make the following orders: (1) that the grant of probate of the estate of Erminia Agnes Rogers made by this Court on 23 August 2006 to John William Rogers, the executor appointed under the will, be and is hereby revoked; secondly, I order that John William Rogers, the executor to whom probate had been granted, shall within 10 days deliver to the registry of this Court (a) the original grant of probate for cancellation, (b) an affidavit describing his administration of the estate and identifying estate assets which remain unadministered or under his control and all papers, documents, accounts, receipts or other documents relating to estate assets.

39 Next, I order that Mr John William Rogers shall appear before a Registrar of this Court at a date to be fixed for examination on oath or affirmation by or at the instance of any of the co-beneficiaries of the estate to answer questions about the nature and extent of his administration and the location of unadministered assets or documents relating to them.

40 Next, I give liberty to Brian David Rogers to apply for a grant of probate or letters of administration of the unadministered estate of his mother, Erminia Agnes Rogers, and I direct that any matters concerning that application shall be referred by a Registrar dealing with the matter to me for supervision. I reserve all questions of costs arising from this application.