Matthew Sims (the deceased) died intestate on 22 May 2024, leaving three children: Molly (17), Thomas (16), and Sebastian (12). Molly and Thomas’s mother, Rebecca Moylan (the plaintiff), was previously in a de facto relationship with the deceased, which ended in 2009. Sebastian’s mother, Fiona Sims (the first defendant), had separated from the deceased in March 2023 and divorced in April 2024. The deceased had neither a spouse nor a de facto partner at his death. They left property in Western Australia of uncertain value.
Under s 14 of the Administration Act 1903 (WA), the estate would be divided equally among the three children, ensuring a fair distribution. The plaintiff, understanding the complexity of the issue, commenced proceedings to settle the estate administration issue as it could not be decided in the non-contentious jurisdiction. The first defendant and the children filed notices to abide by the Court’s decision, demonstrating their trust in the legal process.
The plaintiff filed submissions in August 2025, and the trial proceeded undefended on 26 August 2025. Gething J read the Affidavits from both the plaintiff and the first defendant. At the conclusion of the hearing, the Court indicated that it was appropriate to appoint the plaintiff as Administrator in general terms and made orders accordingly.
Rule 26 of the Non-Contentious Probate Rules 1967 (WA) (NCPR) outlines the procedure for estates where all beneficiaries entitled to administration are minors.
Section 25(1) of the Administration Act 1903 (WA) underscores the rights of those entitled to share in an intestate estate, giving them the first claim to a grant of administration. If the children in this case were adults, they would clearly have priority in administering the estate, emphasising their significant role in the proceedings and their importance in the legal process.
However, since they are minors, the issue arises whether the Court can grant them administration despite requiring administrators to be over 18. The Registrar, who is responsible for overseeing the administration process, believes that minors may exercise their rights through a guardian— most likely a parent—provided the guardian is an adult.
This approach is consistent with the scheme of the Administration Act 1903 (WA). Section 33 permits administration with the Will annexed to be granted to the guardian of an infant executor, showing that guardians can act on behalf of children lacking legal capacity.
In Western Australia, a Guardian ad Litem (GAL) is a court-appointed representative who protects the interests of a child (or sometimes a vulnerable person) in legal proceedings.
Unlike guardians under the Guardianship and Administration Act 1990, who manage personal and financial affairs, a GAL’s role is limited to the duration of a court case. It is focused on advocacy within that process.
Key Features
Child-focused role: In WA, the position primarily concerns children in court cases, ensuring their independent representation.
Court appointment: The Court appoints a GAL to act impartially for the child.
Responsibilities:
- Investigate the case from the child’s perspective.
- Safeguard the child’s legal and emotional welfare.
- Communicate the child’s wishes and views.
- Explain legal processes in an accessible language.
Independence: The GAL acts separately from family members and government agencies to provide unbiased advocacy.
Objective: To secure the best possible outcome for the child and shield them from the adversarial impact of litigation.
Distinction from Other Guardians
Private Guardians: Appointed by the State Administrative Tribunal to make ongoing decisions for adults lacking capacity.
Public Advocate: A government officer protecting the rights of vulnerable adults.
GALs: Appointed only for the duration of a legal case involving a child, without responsibility for ongoing personal or financial matters.
Likewise, the Rules of the Supreme Court 1971 (WA) generally allow a guardian to exercise rights on behalf of a legally incapable party.
Grants to guardians: A grant of Administration durante minore aetate (i.e., during the minority of the beneficiaries) to the infants’ guardians for the infants’ benefit, subject to the Registrar’s conditions.
Choice of guardian: Infants over 14 may choose their own guardian. The Registrar may appoint a suitable and consenting guardian on application for younger children.
Proof of guardianship: A guardian seeking administration must provide evidence of their appointment or election to the Court.
Mixed-age families
Where some children are over 14 and some under, a guardian chosen by the older children may act on behalf of all of them without requiring a separate appointment, simplifying the administration process—a grant durante minore aetate(a legal term meaning a temporary grant of administration). Once the minor child reaches adulthood, the Court will issue a final grant of administration directly to them.
The plaintiff initially intended to apply for letters of administration durante minore aetate under the Non-contentious Probate Rules 1967 (WA). Molly and Thomas (over 14) filed elections under r 26(2), but Sebastian was too young. The difficulty was that the plaintiff was not Sebastian’s guardian, and r 26(2) assumes one guardian acts for all minor beneficiaries. The plaintiff did not apply because the first defendant (Sebastian’s mother) would not consent to the plaintiff’s appointment.
Instead, the plaintiff lodged a caveat in August 2024 claiming the right to administer the estate as guardian of Molly and Thomas. The first defendant later lodged her caveat in October 2024, asserting her right to administer as Sebastian’s parent. These caveats, which are formal notices of a claim to an interest in the estate, expired after six months under r 34(3) of the Non-contentious Probate Rules 1967 (WA).
Moylan -v- Sims [2025] WASC 349
The plaintiff commenced Moylan -v- Sims [2025] WASC 349 on 6 December 2024 by way of a writ, endorsed with a statement of claim. Fiona, Molly, Thomas, and Sebastian were named defendants. The plaintiff’s substantive application was for a grant of Letters of Administration durante minore aetate limited to collecting and managing the estate, but not distributing it until Molly, Thomas, and Sebastian each reached 18 years of age and applied.
After standard case management steps, on 5 May 2025, the Court appointed:
- (a) Gregory Moylan, Molly’s maternal grandfather, as her guardian ad litem;
- (b) Gregory Moylan, as guardian ad litem for Thomas; and
- (c) Helen Curtin, Sebastian’s maternal grandmother, as his guardian ad litem.
Subsequently, on 16 May 2025, the first defendant filed a notice of intention to abide, having already entered an appearance. On the same date, Helen, in her capacity as Sebastian’s guardian ad litem, also filed a notice of intention to abide through her solicitors. On 20 May 2025, Gregory, acting as guardian ad litem for Molly and Thomas, filed similar notices through legal representatives. On that day, the Court directed the plaintiff and first defendant to file affidavits of scripts and listed the matter for trial on an undefended basis.
The plaintiff and first defendant swore affidavits confirming that the deceased died intestate. Under section 25(1) of the Administration Act 1903 (WA), the Registrar usually grants administration to adult beneficiaries. If no such person is available, the Court may appoint another suitable person. The Court, guided by the best interests of the estate’s assets and beneficiaries, retains discretion to act, ensuring a just and equitable outcome.
The Court may appoint a guardian ad litem to act on their behalf where all beneficiaries are minors. Hasluck J noted in Reyburn and Anor [2002] WASCA 171, the Administration Act 1903 (WA) permits parents or guardians to administer on behalf of infant beneficiaries, which is consistent with the broader scheme that allows guardians to exercise rights on behalf of minors. The Court bases its preference for appointing a parent on the belief that a parent is likely to act in the best interests of the child. Alternatively, the Court may appoint an independent solicitor or trustee company, though there is a preference to appoint a parent.
An Administration Durante Minore Aetate is a temporary grant made when a minor (under 18) is named executor of a Will or is the sole beneficiary of an intestate estate. The grant authorises a guardian to administer the estate for the minor’s benefit until the minor turns 18 and can obtain a full grant.
Key Features
Limited Grant: Restricted to managing the estate for the minor, subject to conditions imposed by the Court.
Purpose: Ensures proper administration of the estate until the minor reaches majority.
Who Can Apply
- The minor’s legal guardian.
- A testamentary guardian named in the deceased’s will.
- An elected guardian (where the minor is 14 years or older).
- A court-appointed guardian if no suitable person is available.
Application Process
Applications are lodged with the Probate Office of the Supreme Court of Western Australia.
The Court’s decision-making process was thorough and meticulous. Both parents are living, yet the first defendant has chosen not to seek an appointment and is content to abide by the Court’s decision. The children’s guardians ad litem have also taken a neutral stance. Molly and Thomas have formally elected the plaintiff under the NCPR. The Court considered factors analogous to appointing a replacement administrator:
- the beneficiaries’ wishes,
- fairness between them,
- avoiding conflicts of interest, and
- whether the appointment would promote proper administration.
The Court carefully considered these factors, and all pointed towards the plaintiff, ensuring a fair and just decision.
The plaintiff’s qualifications as an accountant, her methodical conduct of the proceedings, and her retention of lawyers demonstrated that she is a fit and proper person to act. The Court’s decision to grant the plaintiff letters of administration to manage the estate, without requiring a surety, reflects the Court’s confidence in her abilities and suitability for the role.
Gething J considered granting administration durante minore aetate or, in general terms. Administration durante minore aetate, a staggered process where each child is successively applied for as they turn 18, would be unnecessarily complex. Instead, granting the plaintiff general administration was preferable, holding each child’s one-third interest on trust, and income could be applied to their maintenance, welfare, or advancement. General administration would continue until the full distribution of the estate, even after the children reached the age of 18, ensuring an orderly administration.
The Court also left open the possibility that once Molly and Thomas had received their shares, the plaintiff might retire and the first defendant could be appointed to administer Sebastian’s remaining share. The Court granted Liberty to any party to apply in relation to the implementation of these orders, or the retirement of the Administrator.
Orders
Orders made on 26 August 2025:
- The plaintiff was appointed Administrator of the deceased estate, with the probate registrar to settle the grant terms.
- Declaration that the plaintiff holds one-third of the estate on trust for each child (Molly, Thomas, Sebastian).
- Power for the plaintiff to apply income or capital for the children’s benefit.
- Liberty to apply regarding the implementation or potential retirement/appointment of another administrator.
- Payment of the plaintiff’s costs from the estate.
- The first defendant is to bear costs personally.
The parties had reached a consent order on costs. The plaintiff’s costs were paid from the estate on a solicitor–client basis, while the first respondent was to bear her own costs.
One Reply to “”