MOYLAN -v- SIMS [2025] WASC 349 (27 August 2025)

1. At the conclusion of the hearing, I advised counsel that I was satisfied that it was appropriate to appoint Rebecca as administrator of the estate of the Deceased in general terms. I made the orders set out at [40]. My reasons for doing so are as follows.

1. The facts set out in the Introduction are drawn from Rebecca's Affidavit, and I find them proven on the balance of probabilities.
2. The Non-contentious Probate Rules 1967 (WA) (NCPR) in r 26 set out a process where all beneficiaries to a deceased estate for which a grant of letters of administration is required are under the age of 18:
   1. Grants on behalf of infants

(1) Grants of administration durante minore aetate may be made to guardians of infants for their use and benefit, subject to such limitations or conditions as the Registrar may order.

(2) Infants above the age of 14 years may elect a guardian; and in other cases the Registrar may, on application made to him on motion, appoint as guardian a fit and proper person who consents to act.

(3) Where a guardian applies for administration, he shall produce evidence of his election or assignment.

(4) In a family where there are infants both above and under the age of 14 years, an elected guardian may act for all the infants without special assignment.

1. The term durante minore aetate means 'during the age of minority'.[2] If the court makes a grant durante minore aetate, it would then make a final grant to the minor when the minor comes of age.[3]
2. It is apparent from Rebecca's Affidavit that she was intending to apply for a grant of letters of administration durante minore aetate in the non-contentious jurisdiction. To this end, both Molly and Thomas prepared elections pursuant to NCPR r 26(2) (which were filed in this action). Sebastian was too young to do so.
3. However, the problem this application faced is that Rebecca is not the guardian of Sebastian. NCPR r 26(2) contemplates the situation in which the guardian is the guardian of all child beneficiaries. It does not appear to contemplate the situation in which some of the child beneficiaries have different guardians. Fiona was not prepared to consent to Rebecca being appointed administrator. So Rebecca never filed this application.
4. On 5 August 2024, Rebecca filed Caveat 136 of 2024 in relation to the estate of the Deceased (Rebecca's Caveat). Rebecca's Caveat was in the following terms:

Take notice that REBECCA LEEANNE MOYLAN of xx, Dianella, in the State of Western Australia, the guardian for MOLLY SIMS MOYLAN and THOMAS MATTHEW SIMS, the lawful children of the Deceased, being beneficiaries of the estate by operation of s14(1) of the Administration Act 1903 (WA), claims an interest in the estate of the Deceased as a having a right to administer the estate on intestacy and does hereby demand that nothing be done therein without notice to her.

1. On 28 October 2024, Fiona filed Caveat 178 of 2024 (Fiona's Caveat). Fiona's Caveat was in the following terms:

Take notice that I, Fiona Jane SIMS of xx, Coogee, in the State of Western Australia, claiming interest in the estate of the Deceased as the parent of Sebastian Lucas SIMS, a lawful child of the Deceased, being a beneficiary of the estate pursuant to section 14(1) of the Administration Act 1903 (WA) and having a right to administer the estate on intestacy by operation of section 25(1) of the Administration Act 1903 (WA) do hereby demand that nothing be done therein without notice to me.

1. I observe that pursuant to NCPR r 34(3), each of Rebecca's Caveat and Fiona's Caveat remained in force only for a period of 6 months from the date on which each was entered. Each has now expired and is of no effect.
2. The present action was commenced by Rebecca by writ filed 6 December 2024. The writ was endorsed with a statement of claim. The defendants were Fiona, Molly, Thomas and Sebastian. The substantive order sought by Rebecca was an order that she be granted Letters of Administration durante minore aetate limited to calling in and administering the estate but not to distributing it until Molly, Thomas and Sebastian turned 18 and apply.
3. Following some routine case management, on 5 May 2025 the court made orders that:

(a) Gregory Moylan, Molly's material grandfather, be appointed her guardian ad litem;

(b) Gregory also be appointed the guardian ad litem of Thomas; and

(c) Helen Curtin, Sebastian's maternal grandmother, be appointed his guardian ad litem.

1. On 16 May 2025, Fiona filed a notice of intention to abide, having previously entered an appearance.
2. On 16 May 2025, Helen, as the guardian ad litem of Sebastian, filed a notice of intention to abide through lawyers.
3. On 20 May 2025, Gregory, as the guardian ad litem of each of Molly and Thomas filed a notice of intention to abide through lawyers.
4. On 20 May 2025, the court ordered Rebecca and Fiona to file affidavits of scripts and listed the action for trial on an undefended basis.

1. In Rebecca's Affidavit of Scripts, she deposes that she is not aware of any testamentary disposition or instruments made by the Deceased, nor any documents purporting to be testamentary dispositions or instruments made by the Deceased. Fiona's Affidavit of Scripts is to the same effect. I am satisfied that the Deceased died intestate and that his estate should be administered as such pursuant to the AA.
2. In most cases, by AA s 25(1)(a) the court grants administration of the estate of a person dying intestate to one or more persons who are over the age of 18 and are entitled to distribution in the estate of the intestate. By AA s 25(1)(b), the court may make a grant to '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'. The normal approach to the exercise of the power in AA s 25(1)(a) is to grant letters of administration to the person who has the greatest interest as beneficiary in the intestate estate.[4] Where there are a number of people entitled to an equal share in the estate, and are thus equally entitled to be granted letters of administration, they may all be granted administration conjointly.[5] Where there is a dispute, the court will make the order which best advances the real object of the administration, which is the due and proper administration of the estate.[6] The court 'does not lightly depart' from the rule that the grant be given to the person or persons entitled to the property of the deceased, provided that they are within the jurisdiction and capable of taking the grant.[7] However, the identity of the grantee remains always in the discretion of the court.[8]
3. The position where the only statutory beneficiaries of a deceased estate were under the age of 18 years was the subject of observations by Hasluck J in Reyburn and Anor:[9]

To my mind, s 25(1) of the Administration Act clearly envisages that if there are persons entitled in distribution to the estate of the intestate then such persons will have a prior claim to a grant of administration as opposed to other persons. Section 25(1)(b) allows for an application to be made by "any other person" provided there is not a person entitled in distribution to the estate of the deceased. Accordingly, in the present case, if the two children were over the age of 18 years there could be little doubt that as the persons entitled in distribution they would have a prior claim to being granted administration of the estate.

In the present case, however, the reality is that the two children are under the age of 18 years and therefore a question arises as to whether it is open to the Court to grant administration of the estate to them as the persons entitled in distribution having regard to the requirement in s 25(1) that the grant is to be to persons "being of the full age of 18 years".

The decision of the Registrar contemplates that in this matter, as in other circumstances in which infants are required to exercise legal rights, the infants can exercise their rights through the agency of a guardian which, in this case, is likely to be the mother of the infants. The assumption is that if the guardian is of the full age of 18 years then the requirements of the statute will have been satisfied.

I consider that this is the correct view of the matter. Counsel for the applicants was unable to refer me to any decided cases to the contrary. To my mind, it is significant that s 33 of the Administration Act allows for administration with the will annexed to be granted to the guardian of an infant executor. It is therefore clearly consistent with the scheme of the Act that an estate can be administered by a guardian on behalf of an infant as the person who would otherwise, but for the incapacity resulting from infancy, be entitled to administer the estate. The Rules of the Supreme Court generally allow for rights vested in or available to a party lacking legal capacity to be exercised on the party's behalf by a guardian.

1. In my view, where all statutory beneficiaries are under the age of 18, there is ample power in Supreme Court Act 1935 (WA) s 18, the inherent jurisdiction of the court and AA s 4 and s 6 to grant letters of administration over the estate of a person who dies intestate to a person who is not a statutory beneficiary.[10] For example, the court routinely appoints independent solicitors to this role (even when there are statutory beneficiaries over the age of 18). However, for the reasons articulated by Hasluck J in Reyburn, there is a preference or predisposition to appoint the parent or guardian of a child beneficiary.[11] There remains a discretion. For example, a grant of administration durante minore aetate may be made to a trustee company.[12]
2. Here, there are two parents: Rebecca and Fiona. However, Fiona does not seek appointment and is content to abide the decision of the court. As mentioned, each of the child beneficiaries, through their guardians ad litem, are also content to abide the decision of the court. Molly and Thomas have elected Rebecca for the purposes of NCPR r 26(2).
3. There is some analogy here to the power of the court to appoint a replacement administrator where the grant of probate to the original executors has been revoked and there is a dispute as to the identity of the replacement. In the exercise of this power, the court seeks to identify what is best for the welfare of the beneficiaries and of the estate as a whole.[13] In considering the identity of the replacement:[14]

(a) the wishes of the beneficiaries are relevant;

(b) the replacement should not be appointed with a view to promoting the interests of some of the beneficiaries in opposition to the interests of other beneficiaries;

(c) the court should be concerned to avoid appointing, as a replacement, a person or party who might have a potential conflict of interest; and

(d) in identifying the appropriate replacement, the court should have regard to whether the appointment would promote or impede the due and proper administration of the estate.

In my view, all these factors support the appointment of Rebecca.

1. Rebecca is an accountant, so has professional skills relevant to the administration of a deceased estate.[15] She has conducted the proceedings in what I would describe as a methodical and considered manner, including to retain lawyers. I have every confidence that she would apply the same methodical and considered manner to the administration of the estate of the Deceased. She would certainly be a 'fit and proper person' for the purposes of NCPR r 26(2).
2. There should be an order directing the probate registrar to issue a grant of letters of administration to Rebecca to administer the estate of the Deceased, with the terms of the grant being settled by the probate registrar.
3. There is no factor suggesting to me that it would be appropriate to require Rebecca to produce a surety as contemplated in AA s 26(1).

1. The issue then becomes the capacity in which Rebecca should hold the estate of the Deceased on behalf of the child beneficiaries. This will not be a practical issue as regards Molly as she will shortly turn 18, as will Thomas in a year or so. However, Sebastian is 6 or so years away from turning 18.
2. One option is a grant of administration durante minore aetate. This grant is made until the beneficiary turns 18 and applies for and obtains a grant in their own right.[16] The grant is for the 'use and benefit' of the infant beneficiaries, that is, would allow the grantee to apply the funds of the estate for their use and benefit from time to time.[17]
3. An order in this form is set out in the minute of proposed orders filed by Rebecca on 21 August 2025:
   1. Administration in solemn form of the estate of Mathew SIMS late of xx, Coogee, Western Australia, who died on 22 May 2024, intestate is hereby granted to Rebecca Leanne Moylan of xx, Dianella, Western Australia the lawful guardian of Molly Majella SIMS and Thomas Mathew SIMS who are persons entitled in distribution.
   2. The grant is limited until Molly Majella SIMS, Thomas Mathew SIMS, or Sebastian Lucas SIMS, having attained the age of 18 years, shall come in and apply for a grant in their own right.

(though the order would need to provide for the grant of letters of administration).

1. In the case of a grant of administration durante minore aetate, Molly could then apply for a grant in her own right upon turning 18. She would then be responsible for administering the estate until Thomas turned 18. He could then also apply to be joined as administrator. The two of them would then administer the estate until Sebastian turned 18, when he also could apply to be joined. This is unnecessarily complex.
2. An alternative is to give Rebecca a grant of letters of administration in general terms. Whether she received a grant durante minore aetate or a grant in general terms, Rebecca would hold the interest of each child in the estate of the Deceased on trust (as tenants in common).[18] There could be a declaration confirming this. Broadly consistent with what I have said at [32] and the powers in AA s 17, she could be given the power to, at her discretion, apply the income, or part of the capital, for the maintenance, welfare and advancement of, or otherwise for the benefit of, any of the three beneficiaries.[19]
3. A grant in general terms would mean that the administration, and thus trusts, would not be limited until each child attains the age of 18. Rather, a grant in general terms would allow Rebecca's appointment to continue beyond her children reaching 18 years old. It may well be that the assets of the estate will not be realised before Molly turns 18, or even before Thomas turns 18. The administration would continue until all the assets of the estate have been realised. The adult beneficiaries could then be paid out their proportion, axiomatically bringing their trust to an end. In this way, a grant in general terms would allow Rebecca to go about the orderly realisation of the assets of the estate, which is for the benefit of all beneficiaries.
4. In my view, in the particular circumstances of this case, a grant of administration durante minore aetate is not appropriate. Rather, there should be a grant of letters of administration to Rebecca in general terms. There should be liberty to apply in relation to the implementation of the orders made to allow any party to seek directions in the event of an issue arising. In this way, the court can maintain a degree more oversight of the administration than is usually the case.
5. Once the assets of the estate have been realised, liabilities paid, the amount due to each beneficiary known and Molly and Thomas have been paid out, there may be some merit in Rebecca retiring as administrator and Fiona being appointed as administrator of the balance of the estate which would be held for Sebastian. There should be liberty to apply in that regard.
6. Turning to the issue of costs, each of the notices of intention to abide was 'other than as to costs'. On the day of trial, a consent order was filed dealing with costs. I made costs orders in terms of the consent order.
7. For these reasons, at the conclusion of the hearing on 26 August 2025, I made the following orders:
   1. The probate registrar be directed to issue a grant of letters of administration over the estate of Matthew Mark Sims late of xx, Coogee, in the State of Western Australia who died on 22 May 2924 (Deceased) to Rebecca Leeanne Moylan of xx, Dianella in the State of Western Australia (Administrator), with the terms of the grant to be settled by the probate registrar.
   2. The court declares that the Administrator holds one third of the estate of the Deceased upon trust for each of the Molly Majella Sims, Thomas Matthew Sims and Sebastian Lucas Sims.
   3. The Administrator is empowered at her discretion to apply the income, or part of the capital, for the maintenance, welfare and advancement of, or otherwise for the benefit of, any beneficiary.
   4. There be liberty to any party to apply in relation to the implementation of these orders, or the retirement of the Administrator.
   5. The costs of the plaintiff in this action and of CAV/178/2024 be paid from the estate of the deceased on a solicitor-client basis as a testamentary expense taxed unless otherwise agreed.
   6. The costs of the first defendant in this action and of CAV/178/2024 be borne by the first defendant without indemnity or exoneration from the estate of the deceased.

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

[1] See Administration Act 1903 (WA) (AA) s 15.

[2] Ackerly v Felton [2012] NSWSC 1468 [54] (Young AJ) (Ackerly); Wills, Probate and Administration Service Western Australia [52.015.190] (LexisNexis).

[4] Britt v The State of Western Australia [2022] WASCA 75 [67] (Mitchell JA, with whom Murphy and Beech JJA agreed); Hart v Hart [2010] WASC 329 [17] (Jenkins J) (Hart); Fairburn v Healey [2009] WASC 114 [7], [30] (Hasluck J) (Fairburn).

[5] AA s 25(1).

[6] Hart [19] - [24]; Fairburn [7].

[7] In the Estate of Slattery [1909] NSWStRp 76; (1909) 9 SR (NSW) 577, 578 (Street J).

[8] Sawbridge v Hill (1871) LR 2 P & D 219, 220 - 221 (Lord Penzance) (also 24 LT 320; 19 WR 705).

[9] Reyburn and Anor [2002] WASCA 171 [27] - [30] (Reyburn).

[10] Nicholl v Mattingly [2025] WASC 297 [23] (Gething J) (Nicholl); McFarlane v Jeffery Crondon Smith as Administrator of Estate of Dorothy Joyce McFarlane [2023] WASC 336 [67] - [70] (Strk J); Re Banning; Ex Parte Banning [2018] WASC 313 [33] (Vaughan J) (Banning); Smith v Partridge [2018] WASC 128 [25] - [26] (Pritchard J) (Smith); Rogers v Rogers [2009] WASC 358 [22] - [23] (EM Heenan J) (Rogers); Fairburn [5], [28].

[11] See also: Re Leopold; Application by Gasbarro and Roache [2022] VSC 579 [26] (McMillan J).

[12] In re Johnson [1930] VLR 60, 62 (Lowe J) (Johnson).

[13] Nicholl [27]; Banning [34], [37]; Smith [26] - [27], [38]; Rogers [23].

[14] Nicholl [28]; Walter v Hasslinger [2022] VSC 460 [31] (Kaye JA); Hancock v Rinehart [2015] NSWSC 646; (2015) 106 ACSR 207 [120] - [124] (Brereton J).

[17] NCPR r 26(1); See for example: Re Kibble [1935] QWN 111.

[18] AA s 13(1), (1a).

[19] Borrowing also from the language in RSC O 70 r 12(2).