SUPREME COURT OF QUEENSLAND
CITATION:
Buckingham v Buckingham [2020] QSC 230
PARTIES:
JAMES ALBERT BUCKINGHAM
(applicant)
v
JANETTE FAYE BUCKINGHAM (as Executor of the Will of Faye Eona Buckingham, deceased)
(first respondent)
GRAHAM CHARLES BUCKINGHAM (as Executor of the Will of Faye Eona Buckingham, deceased)
(second respondent)
FILE NO/S:
SC No 170 of 2020
DIVISION:
Trial
PROCEEDING:
Application
ORIGINATING COURT: Supreme Court at Cairns
DELIVERED ON:
31 July 2020
DELIVERED AT:
Cairns
HEARING DATES:
24 April 2020; 15 May 2020; 12 June 2020; further written submissions received 16 June 2020
JUDGE:
Henry J
ORDERS:
1. Application for directions (considered as an application for declarations) dismissed.
2. I will hear the parties at 10 am 11 September 2020 as to:
(a) costs; and
(b) the selection of the court appointed administrator and the consequent form of order revoking the grant and issuing letters of administration.
CATCHWORDS:
EQUITY – TRUSTS AND TRUSTEES – APPLICATIONS TO COURT FOR ADVICE AND AUTHORITY – PETITION OR SUMMONS FOR ADVICE – GENERALLY – where an executor applied to the Court for advice about whether or not to embark upon litigation – where no “written statement of facts” has been filed per s 96(1) Trusts Act 1973 (Qld) – where the material before the court is unclear, contradictory and disputed – whether the court should proceed to hear the application for judicial advice – whether s 6 Succession Act 1981 (Qld) provides an alternative source of jurisdiction to hear the application for judicial advice
SUCCESSION – PERSONAL REPRESENTATIVES – PROCEEDINGS BY PERSONAL REPRESENTATIVES –INSTITUTION OR CONTINUATION OF PROCEEDINGS ON BEHALF OF DECEASED – where an executor seeks advice about the prospects of successfully establishing that a residential unit legally owned by a beneficiary, the son of the deceased, is held subject to a resulting trust in favour of the estate – where the action’s apparent overall prospects of success appear reasonable – where the executors had received legal advice that strongly recommended settling with the beneficiary rather than litigating the matter – where the estate’s net worth is about $600, 000 – where the unit is worth approximately $110,000 to $120,000 – where the estate is at risk of potentially losing more than it stands to gain from the litigation – where there has been a failure by the executors to properly explore settlement options – whether it would prudent for executors to commence litigation without first having attempted to settle the matter in the context of factual and legal uncertainty
SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – ALTERATION AND REVOCATION OF GRANTS – GENERALLY – where there are disputes and disharmony between the executors – where the disharmony has led to delays in the administration of the estate – where the executors have displayed a lack of objectivity in relation to the dispute over the unit – whether the grant of probate should be revoked and a professional appointed – whether the making of such orders should be delayed to allow the executors and beneficiaries…
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- AGLC
- Buckingham v Buckingham [2020] QSC 230
- Case
- [2020] QSC 230
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the application should proceed in the absence of the requisite written statement of facts, and whether the court could provide the requested judicial advice in light of the unclear, contradictory, and disputed material. The court also had to consider the executors' lack of objectivity and the potential for disharmony to delay the administration of the estate, and whether the grant of probate should be revoked and a professional appointed as administrator. Furthermore, the court considered the overall prospects of success of the litigation and the risk of the estate losing more than it stood to gain.
The court dismissed the application for directions, which was considered as an application for declarations. It found that the material before the court was insufficient to provide meaningful judicial advice. The court noted the executors' failure to properly explore settlement options and their lack of objectivity in the matter. The court also expressed concerns about the disharmony between the executors and the potential delay in the administration of the estate. The court scheduled a hearing to address the matters of costs and the potential revocation of the grant of probate and appointment of a professional administrator. This decision highlights the importance of proper exploration of settlement options and the need for objectivity and cooperation among executors in the administration of an estate.
Orders
Orders of the court
1. Application for directions (considered as an application for declarations) dismissed.
2. I will hear the parties at 10 am 11 September 2020 as to:
(a) costs; and
(b) the selection of the court appointed administrator and the consequent form of order revoking the grant and issuing letters of administration.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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