Budulica v Budulica - [2023] QSC 99

SUPREME COURT OF QUEENSLAND

CITATION:

Budulica v Budulica [2023] QSC 99

PARTIES:

SLAVICA BUDULICA (ALSO KNOWN AS SYLVIA BUDULICA)

(applicant)

v
STANISLAV BUDULICA (ALSO KNOWN AS STAN BUDULICA) AS EXECUTOR OF THE ESTATE OF THE LATE KATICA BUDULICA (ALSO KNOWN AS KAJA BUDULICA AND KATA BUDULICA), DECEASED

(respondent)

FILE NO/S:

5191 of 2023

DIVISION:

Trial

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme

DELIVERED ON:

12 May 2023

DELIVERED AT:

Brisbane

HEARING DATE:

5 May 2023

JUDGE:

Freeburn J

ORDERS:

1. Pursuant to section 6 of the Succession Act 1981, the respondent, Stanislave Budulica is removed as executor of estate of the late Katica Budulica (also known as Kaja Budulica and Kata Budulica), deceased (the estate);

2.   Until further order, a solicitor nominated by the President of the Queensland Law Society (QLS) be appointed as the substitute executor in place of the respondent, that appointment to take place on and from the date the substitute executor accepts that appointment in writing to the President of the QLS, with a copy to be forwarded to the Resolutions Registrar of the Supreme Court (Resolutions Registrar);

3.   Subject to the formal requirements of the Registrar, letters of administration be granted to the substitute executor so appointed;

4.   Upon the acceptance of the appointment:

a.   The substitute executor shall have all the powers of a personal representative under the Succession Act 1981, and the Trusts Act 1974 and at common law;

b.   all the assets comprising the estate shall vest in the substitute executor;

c.   the respondent shall hand over to the substitute executor all of the administration files, financial documents, bank statements and estate papers;

d.   the respondent shall transfer any estate funds or other assets in his possession or control to the substitute executor;

e.   the respondent shall deliver to the substitute executor the original grant of probate so that the substitute executor can forward that original grant, an affidavit attesting to their appointment, and a sealed copy of this order to the Resolution Registrar, so that a memorandum of this order can be endorsed on the grant or permanently annexed to the grant;

5. Pursuant to rule 638(5) of the Uniform Civil Procedure Rules 1999, and subject to further orders of the Court, the Court fixes the remuneration of the substitute executor as the remuneration to be assessed by an independent costs assessor pursuant to the Supreme Court scale, as varied from time to time, on an indemnity basis, the substitute executor’s costs to be assessed at approximately two monthly intervals, and on the completion of the administration;

6.   the parties and the substitute executor, and any person who is proposed to be appointed as substitute creditor, shall have liberty to apply for directions in relation to the administration of the estate on giving reasonable notice;

7.   the parties be heard on costs.

CATCHWORDS:

SUCESSION – PERSONAL REPRESENTATIVES – REMOVAL AND DISCHARGE – where the respondent was appointed the executor and trustee of his mother’s will – where the applicant and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Budulica v Budulica

Details

AGLC: Budulica v Budulica [2023] QSC 99
Case: [2023] QSC 99
Decision Date: 12 May 2023

CaseChat Overview and Summary

The case of Budulica v Budulica involved the applicant, who was estranged from the respondent, seeking the removal of the respondent as executor of the estate of their late mother, Katica Budulica. The application was made under section 6 of the Succession Act 1981, citing delays in the administration of the estate and the respondent's failure to act in the best interests of the estate. The court was required to determine whether the respondent should be removed from his role as executor and if so, what steps should be taken to ensure the efficient administration of the estate moving forward.

The legal issues before the court included the grounds upon which the respondent could be removed as executor, specifically whether the delay in estate administration and the respondent's conduct justified such removal. The court considered the powers of the court under the Succession Act 1981 to remove and discharge personal representatives, and the criteria for appointing a substitute executor. The court also examined the respondent's obligations and responsibilities as executor and the impact of his actions on the estate and the parties involved.

In its reasoning, the court found that the respondent's actions warranted his removal as executor due to significant delays in estate administration and a lack of action in the best interests of the estate. The court determined that a substitute executor should be appointed to ensure the timely and proper administration of the estate. The court ordered the respondent's removal and appointed a substitute executor, specifying their powers, responsibilities, and the process for vesting the estate's assets in the substitute executor. The court also set out provisions for remuneration and costs, and granted liberty to apply for further directions regarding the estate's administration.

Orders

Orders of the court

1. Pursuant to section 6 of the Succession Act 1981, the respondent, Stanislave Budulica is removed as executor of estate of the late Katica Budulica (also known as Kaja Budulica and Kata Budulica), deceased (the estate);

2. Until further order, a solicitor nominated by the President of the Queensland Law Society (QLS) be appointed as the substitute executor in place of the respondent, that appointment to take place on and from the date the substitute executor accepts that appointment in writing to the President of the QLS, with a copy to be forwarded to the Resolutions Registrar of the Supreme Court (Resolutions Registrar);

3. Subject to the formal requirements of the Registrar, letters of administration be granted to the substitute executor so appointed;

4. Upon the acceptance of the appointment:

a. The substitute executor shall have all the powers of a personal representative under the Succession Act 1981, and the Trusts Act 1974 and at common law;

b. all the assets comprising the estate shall vest in the substitute executor;

c. the respondent shall hand over to the substitute executor all of the administration files, financial documents, bank statements and estate papers;

d. the respondent shall transfer any estate funds or other assets in his possession or control to the substitute executor;

e. the respondent shall deliver to the substitute executor the original grant of probate so that the substitute executor can forward that original grant, an affidavit attesting to their appointment, and a sealed copy of this order to the Resolution Registrar, so that a memorandum of this order can be endorsed on the grant or permanently annexed to the grant;

5. Pursuant to rule 638(5) of the Uniform Civil Procedure Rules 1999, and subject to further orders of the Court, the Court fixes the remuneration of the substitute executor as the remuneration to be assessed by an independent costs assessor pursuant to the Supreme Court scale, as varied from time to time, on an indemnity basis, the substitute executor’s costs to be assessed at approximately two monthly intervals, and on the completion of the administration;

6. the parties and the substitute executor, and any person who is proposed to be appointed as substitute creditor, shall have liberty to apply for directions in relation to the administration of the estate on giving reasonable notice;

7. the parties be heard on costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Budulica v Budulica [2023] QSC 99
PARTIES:	SLAVICA BUDULICA (ALSO KNOWN AS SYLVIA BUDULICA) (applicant) v STANISLAV BUDULICA (ALSO KNOWN AS STAN BUDULICA) AS EXECUTOR OF THE ESTATE OF THE LATE KATICA BUDULICA (ALSO KNOWN AS KAJA BUDULICA AND KATA BUDULICA), DECEASED (respondent)
FILE NO/S:	5191 of 2023
DIVISION:	Trial
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme
DELIVERED ON:	12 May 2023
DELIVERED AT:	Brisbane
HEARING DATE:	5 May 2023
JUDGE:	Freeburn J
ORDERS:	1. Pursuant to section 6 of the **Succession Act 1981, the respondent, Stanislave Budulica is removed as executor of estate of the late Katica Budulica (also known as Kaja Budulica and Kata Budulica), deceased (the estate); 2. Until further order, a solicitor nominated by the President of the Queensland Law Society (QLS) be appointed as the substitute executor in place of the respondent, that appointment to take place on and from the date the substitute executor accepts that appointment in writing to the President of the QLS, with a copy to be forwarded to the Resolutions Registrar of the Supreme Court (Resolutions Registrar); 3. Subject to the formal requirements of the Registrar, letters of administration be granted to the substitute executor so appointed; 4. Upon the acceptance of the appointment: a. The substitute executor shall have all the powers of a personal representative under the Succession Act 1981, and the Trusts Act 1974 and at common law; b. all the assets comprising the estate shall vest in the substitute executor; c. the respondent shall hand over to the substitute executor all of the administration files, financial documents, bank statements and estate papers; d. the respondent shall transfer any estate funds or other assets in his possession or control to the substitute executor; e. the respondent shall deliver to the substitute executor the original grant of probate so that the substitute executor can forward that original grant, an affidavit attesting to their appointment, and a sealed copy of this order to the Resolution Registrar, so that a memorandum of this order can be endorsed on the grant or permanently annexed to the grant; 5. Pursuant to rule 638(5) of the Uniform Civil Procedure Rules 1999, and subject to further orders of the Court, the Court fixes the remuneration of the substitute executor as the remuneration to be assessed by an independent costs assessor pursuant to the Supreme Court scale, as varied from time to time, on an indemnity basis, the substitute executor’s costs to be assessed at approximately two monthly intervals, and on the completion of the administration; 6. the parties and the substitute executor, and any person who is proposed to be appointed as substitute creditor, shall have liberty to apply for directions in relation to the administration of the estate on giving reasonable notice; 7. the parties be heard on costs.**
CATCHWORDS:	SUCESSION – PERSONAL REPRESENTATIVES – REMOVAL AND DISCHARGE – where the respondent was appointed the executor and trustee of his mother’s will – where the applicant and…