MALLETTE -v- OSBORN [2025] WASC 496 (25 November 2025)

The plaintiff is entitled to be granted letters of administration of the Deceased's estate as:

9.1 The net value of the Deceased Estate is $447,372;

9.2 The plaintiff is entitled to the whole of the Deceased's estate pursuant to s.14(1)(item 2) of the Administration Act as the net value of the Deceased's estate does not exceed $472,000;

9.3 The plaintiff has the greatest interest as a beneficiary in the Deceased's Estate; and

9.4 The general rule that the right to administer an estate follows the interest, that is, the person who has the greatest interest as a beneficiary in the estate is normally entitled to the grant.

1. Each of the defendants entered a memorandum of appearance to the probate proceedings on 28 April 2025, and were together represented by Askew & Co Barristers & Solicitors. By the defence filed on 9 May 2025 as amended on 19 June 2025, the defendants pleaded that the first defendant had sought to be appointed as a joint administrator of the estate with the plaintiff after the death of the deceased; that the plaintiff had not disclosed all of the assets of the estate including the assets of the business held by the deceased in his sole name; that the true value of the estate was not known by the plaintiff or alternatively had not been disclosed by the plaintiff; that the plaintiff had been removed as secretary of the business as at 8 September 2022; that the plaintiff had not been able to produce all relevant company financial records or bank statements for the business; that the plaintiff and the deceased were legally separated at the time of the deceased's death; and that around 7 January 2025 the deceased had sought legal advice in relation to his matrimonial property settlement with the plaintiff.
2. On 23 September 2025 with the consent of the parties, the Court made orders as described in [2] of these reasons. The plaintiff entered the action for trial on an unopposed basis on 24 September 2025.

1. At trial counsel read the affidavit of the plaintiff sworn on 21 November 2025, to which she had attached five documents marked MM1 to MM5.[5]
2. Among other things, in her affidavit the plaintiff verified and confirmed that the facts, matters and circumstances pleaded in the statement of claim were true and correct. She attached to her affidavit copies of various documents that had been referenced in her statement of claim, namely the death certificate of the deceased; the marriage certificate of the deceased and the plaintiff registered 7 December 2019; the motion filed on behalf of the plaintiff in the Court's non‑contentious probate jurisdiction on 20 February 2025 together with the affidavit made by the plaintiff in support of the same to which she had attached a statement of the deceased's assets and liabilities; and the notice of requisition issued to the plaintiff by the Court on 24 March 2025 in the non‑contentious probate action (by which she came to be on notice of the caveat).
3. The plaintiff also deposed to a compromise having been reached as between the parties and attached to her affidavit a copy of a document titled 'terms of settlement' dated 8 September 2025, which was signed by all parties to the action. The document recorded as follows:[6]

The parties will consent to directions being made by the Court in the following terms (or terms that substantially reflect the following):

1. By consent, the defendants will seek leave to withdraw their defence pursuant to Order 23 Rule 2 of the Rules of the Supreme Court 1971 (WA) (RSC) and there shall be no order as to costs made against the defendants.
2. The action will be set down for trial on an unopposed basis pursuant to Order 73 Rule 19 of the RSC.
3. The evidence of the plaintiff in support of the application can be adduced by affidavit without the need for the plaintiff to attend in person and such evidence shall include this signed Terms of Settlement.
4. The plaintiff will not seek an order for costs against the defendants and the defendants will bear their own costs of the action.
5. As to the estate of the deceased, the plaintiff deposed that the statement of assets and liabilities which was attached to her affidavit sworn on 20 February 2025 in support of the application for letters of administration of the deceased's estate (in the Court's non‑contentious probate jurisdiction) was true to the best of her knowledge, information and belief. She also deposed that since 20 February 2025:

(a) there had been no change in the estimated value of the assets of the estate ($542,372), that is, the plaintiff had not identified any assets other than those that were already listed and there had been no claim made as against the deceased's BT Life Insurance Policy as it would require a grant of letters of administration; and

(b) there had been an increase in the total debts of the estate over and above the amount that had been estimated (as the deceased's estate has no available money so the plaintiff had paid liabilities of the estate that had arisen since the deceased's death from her own personal resources).

1. By reference, the plaintiff sought to incorporate those matters deposed to in her affidavit sworn on 20 February 2025 and filed in the non‑contentious probate jurisdiction of the Court, which included the following:

(a) the plaintiff is over the age of 18 years;

(b) the deceased was born on 7 January 1970;

(c) the deceased died on 8 January 2025 at 49/40 Coolawanyah Road, Karratha, Western Australia leaving the plaintiff as the deceased's widow;

(d) the plaintiff's belief that the deceased died intestate, and the basis for that belief;

(e) the deceased left property within Western Australia to the estimated gross value of $542,372;

(f) as the deceased's surviving wife, the plaintiff has a right to administer the deceased's estate, and the only other persons with a right prior to or equal with the plaintiff are the deceased's three children, who share a common mother with whom the deceased was in a relationship with prior to meeting the plaintiff;

(g) the names, addresses and ages of those persons entitled in distribution of the deceased's estate;

(h) the deceased had not adopted any child or children; and

(i) if the plaintiff obtained a grant of letters of administration of the deceased's estate then she would administer the estate according to law.

1. By the Administration Act s 6, the Court has jurisdiction to grant probate of the will or administration of the estate of any deceased person leaving property, whether real or personal, in Western Australia. I was satisfied that the Court had the power to grant the orders sought by the plaintiff in the action.
2. While the defendants had opposed the making of a grant in favour of the plaintiff, a compromise was reached as between the parties and the defendants had, with leave, withdrawn their defence.[7] However, the parties to a probate action cannot simply consent to a solemn form grant being made, and the Rules of the Supreme Court O 73 r 19 provides:

Where at any stage of the proceedings in a probate action the parties agree to a compromise, the action may, with leave of the court, be set down for trial.

1. On the evidence before the Court adduced by affidavit at trial, I was satisfied that a grant in favour of the plaintiff ought be made. I weighed the following in the balance.
2. The plaintiff deposed to the basis for her belief that the deceased died intestate on 8 January 2025 in Karratha, Western Australia, leaving a widow (that is, the plaintiff). Among other things, the plaintiff deposed that she had conducted careful searches and enquiries to ascertain whether the deceased left a will and to the best of her knowledge, information and belief, he did not. She further deposed that she had made extensive searches of the deceased's residence, which had also been her residence, belongings including all gathered documentation and correspondence, which were reviewed closely and no reference could be found in relation to a last will or testament or any estate planning professional services from an accountant or a lawyer.[8]
3. The plaintiff deposed that the deceased left property in Western Australia, the gross value of which was $542,372.[9]
4. Where a person dies either wholly or partly intestate, the property as to which he or she dies intestate is distributed according to the entitlements set out in the Administration Act s 14.
5. Pursuant to the Administration Act s 25, the Court may grant administration of the estate of a person dying intestate to the following persons (separately or conjointly) being of the full age of 18 years, that is to say to:

(a) one or more of the persons entitled in distribution to the estate of the intestate;

(b) any other person, whether a creditor or not, if there be no such person entitled as aforesaid resident within the jurisdiction and fit to be so entrusted, or if the person entitled as aforesaid fails, when duly cited, to appear and apply for administration.

1. On the evidence, the plaintiff is both a person who is of age (having attained the age of 18 years) and by s 14(1) of the Administration Act is a person entitled to administration. Relevantly, s 14(1) provides:

(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 their property, the property as to which they die intestate (in this section called the intestate property) shall be distributed according to the entitlements set out in the Table -

If the intestate -

...

(a) where the net value of the intestate property (other than the household chattels) does not exceed the sum of $472 000 (or, if there is a declared sum for item 2 applicable to the intestate, that sum) - the surviving husband or wife shall be entitled to the whole of the intestate property;

(b) where the net value of the intestate property (other than the household chattels) exceeds the sum of $472 000 (or, if there is a declared sum for item 2 applicable to the intestate, that sum) - the surviving husband or wife shall (in addition to the household chattels) be entitled to the sum of $472 000 (or, if there is a declared sum for item 2 applicable to the intestate, that sum), absolutely, together with interest on that sum in accordance with subsection (4) and, of the residue, the surviving husband or wife shall be entitled to one third and the issue shall be entitled in accordance with subsection (2b) to the other two-thirds; ...

1. The plaintiff further deposed to the names, addresses and ages of the persons entitled in distribution to the estate of the intestate, and whether the deceased had adopted any child (he had not).[10]
2. Having withdrawn their defence to the action with leave, the defendants (who as children of the deceased are also persons entitled to distribution) did not seek the grant and did not maintain that the plaintiff was not entitled to the requested grant in solemn form.
3. Finally, the plaintiff deposed that if she was to obtain a grant of letters of administration of the deceased's estate, she will administer the estate according to law.[11]
4. In support of the order promoted by the plaintiff, counsel referred to the decision of Jenkins J in Hart v Hart [2010] WASC 329, and the following observations made by her Honour:[12]

[17] In essence, the right to administration follows interest; that is, the person who has the greatest interest as a beneficiary in the estate is normally entitled to the grant: see Butterworths, Wills Probate and Administration Service, vol 1 (27‑09‑08) [1030.11.05].

...

[19] There is also a general rule when the court is considering whether to grant an administration in the estate that the appointment must be one which advances the real object of administration; that is, due and proper administration of the estate: see In The Goods of Loveday [1900] UKLawRpPro 13; [1900] P 154, 156.

1. It was submitted that in this case, letters of administration of the estate of the deceased ought be granted to the plaintiff as the sole administrator as she holds the greatest interest in the deceased's estate; and there is no challenge by or competing applications by the defendants to be administrators of the estate.
2. I was on the evidence satisfied that the deceased died intestate. Given the plaintiff's evidence as to the gross value of the estate, I was satisfied that by operation of the Administration Act s 14(1), the plaintiff holds the greatest interest as a beneficiary in the estate (albeit I did so without making any finding as to whether the debts described in the statement of assets and liabilities and by the plaintiff in her affidavit are proper debts of the estate). I was also cognisant that there remained no challenge by or competing applications by the defendants to be administrators of the estate.
3. In the circumstances described in these reasons, I was satisfied that a grant of letters of administration of the deceased's estate in favour of the plaintiff ought be made, being an order that was consistent with and would advance the due and proper administration of the estate.

1. For these reasons, I granted the application and made an order directing that a Probate Registrar of this Court settle the grant of letters of administration of Rodney John Wells' estate in favour of the plaintiff as sole administrator in solemn form. I was satisfied that the plaintiff was entitled to her costs of the action to be paid out of the assets of the estate on a party/party basis (not on an indemnity basis was first promoted by the plaintiff). Consistent with the compromise reached as between the parties, there was no order for costs against the defendants and they had agreed to bear their own costs of the action.
2. As to the caveat, it was lodged in March 2025. As six months had elapsed after its entry and no order had been made extending its operation, as at the date of trial the caveat had expired and was of no effect.[13] It was therefore not necessary in the circumstances to make an order removing the caveat pursuant to the Administration Act s 63(1).

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Order 1 of the orders made by Registrar Hosking on 23 September 2025. The defence was filed on 9 May 2025 and an amended defence was filed on 19 June 2025.

[2] Order 2 of the orders made by Registrar Hosking on 23 September 2025.

[3] Statement of claim indorsed on the writ of summons filed on 28 April 2025, pars 7 and 8.

[4] Statement of claim indorsed on the writ of summons filed on 28 April 2025, par 9.

[6] Affidavit of MD Mallette sworn on 21 November 2025, MM5.

[7] Order 1 of the orders made by Registrar Hosking on 23 September 2025.

[8] Affidavit of MD Mallette sworn on 21 November 2025 par 5.3, 9, MM3 (par 8).

[9] Affidavit of MD Mallette sworn on 21 November 2025, MM3 (pars 9 - 10, attachment B).

[10] Affidavit of MD Mallette sworn on 21 November 2025, MM3 (pars 11 - 13).

[11] Affidavit of MD Mallette sworn on 21 November 2025, par 9, MM3 (par 16).

[12] Plaintiff's outline of submissions filed on 21 November 2025, par 11.

[13] Non-Contentious Probate Rules 1967 (WA) r 33(3).