Mr Ronald Brian Whit was committed to imprisonment for one year after being found to be in contempt of court orders relating to his role as executor of a deceased estate.
The Case
Mr Ronald Whit died on 9 June 2009 (the deceased). His Will appointed person of the same name Ronald Brian Whit as executor of his estate (Mr Whit). It was 8 years before Mr Whit applied for a grant of Probate, which he obtained in June 2017. The application for Probate stated that the deceased estate held assets for net $175,000.
Some 18 months after Mr Whit receive the grant of Probate and had failed in that time to administer the deceased’s estate, Ms Mottley commenced proceedings against him. She applied to have the grant of Probate revoked and for Mr Whit to file estate accounts with the Court.
The Court listed the matter for hearing on 3 February 2020 and Mr Whit was notified of the hearing date by letter to his last known address, by email and SMS message. Mr Whit did not appear and the proceedings were adjourned to 14 February 2020. But again Mr Whit did not appear.
On 17 August 2020, the proceedings where listed again and Justice Rein made Orders in Mr Whit’s absence. He ordered Mr Whit to:
- file an affidavit setting out the assets of the estate and current location of the assets; the monies received by him and paid out by him as executor of the estate; his reasons for failing to distribute the estate; and his current address.
- Pay all monies held by him as executor of the estate into Court.
- Attend the hearing on 16 October 2020 (with or without legal representation).
- For the duration of the proceedings, to notify Ms Mottley’s solicitor of any change to his residential address, email address or phone number.
The Orders included a warning that the above Orders were “mandatory and failure to comply with any of them may have serious consequences for the Defendant including but not limited to a warrant being issued for his arrest to compel attendance at court, fines and imprisonment.”
On 16 October the proceedings were listed for hearing and again Mr Whit did not appear. Justice Rein issued a bench warrant for Mr Whit’s arrest on 18 November 2020, to have Mr Whit detained and brought before the Court for the purposes of these proceedings.
A letter was sent to Mr Whit in February 2021 advising him of the warrant and directing him to surrender himself to the Court. He did not comply.
On 13 December 2021, a year after the warrant was issued, Mr Whit was arrested in a caravan park in Victoria. The arrest was performed by a number of Victorian Police Officers attached to the Fugitive Squad, accompanied by three NSW Sheriff’s officers. He was flown to Sydney in the custody of NSW Sheriff’s Officers.
Mr Whit appeared before Justice Rein who noted that regardless of Ms Mottley’s application or claims, Mr Whit applied for and was appointed as executor of a deceased estate and, as such, had a duty to administer the estate within a reasonable time and to account to the Court for his actions as executor. He had been appointed by the Court to perform a particular function and had failed to do so.
Mr Whit replied through his solicitor in essence that “the proceedings are now very real indeed to him”. He was released on bail and ordered to attend Court the next day.
The next day, on 15 December 2021, Mr Whit was ordered to submit an affidavit to the Court and provide to the court:
- All bank statements and documents for bank accounts held by Mr Whit for the period 1 June 2017 to date, and
- All bank statements and documents for bank accounts held for the benefit of the estate for the period 1 June 2017 to date.
By April 2022 Mr Whit had still not complied with Court Orders, despite several additional directions to do so.
On 13 December 2022, Mr Whit pleaded guilty to charges of contempt in relation to:
- He failed to submit an affidavit required by the Court,
- He failed to produce the estate records to the Court,
- He failed to provide an affidavit explaining non-compliance with the above Court orders.
His penalty hearing was in March 2023. He filed an affidavit on that day stating that “I believe that the scope and contents of my deceased father’s estate are not an entirely simple matter, which could be addressed in a rapidly prepared document today at court.” He proposed to return to Victoria and file the requested information by 23 March within 2 weeks.
This affidavit was the first time Mr Whit stated that he was prepared to engage with the Court processes and his representative argued that this supported suspending his sentence to allow him the opportunity to comply.
The Court noted that “It was common ground that, as a practical matter, it would be difficult, if not impossible, for Mr Whit to (comply with the Orders) from prison.”
