Hempseed v Ward

Case [2013] QSC 348

SUPREME COURT OF QUEENSLAND

CITATION:

Hempseed v Ward & Anor [2013] QSC 348

PARTIES:

EARL KEVIN HEMPSEED as executor of the will of the Late Kevin Patrick O’Brien  

(Plaintiff)

v

GLENDA MARGARET WARD

(First Defendant)

AND

JOYCE NARELLE WIESENDANGER

(Second Defendant)

FILE NO/S:

S507/12

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Rockhampton

DELIVERED ON:

18 December 2013

DELIVERED AT:

Rockhampton

HEARING DATE:

12 December 2013

JUDGE:

McMeekin J

ORDERS:
  1. The Public Trustee be appointed as Administrator pendente lite
  2. The Administrator is directed as follows:

(1)     The Administrator collect and get in the proceeds of:

(i) all accounts of the deceased held with any financial institution including, but not limited to, the three accounts held with the Rock Building Society; and

(ii) all policies of superannuation due to the deceased including, but not limited to, the policy with the Queensland Local Government Superannuation scheme.

That the Administrator cause all monies received on behalf of the estate of the deceased to be deposited in a trust account and, save for those monies authorised to be expended by these orders, invested in an interest-bearing account until judgement or earlier order in these proceedings.(2)        

That the Administrator be authorised to pay all monies owing from time to time by the deceased, or by the estate of the deceased, to the Rockhampton Regional Council, the Australian Taxation Office and Suncorp Insurance.(3)        

If no objection in writing be received from the defendants, by themselves or their solicitors, within 14 days hereof the administrator be authorised:(4)        

to reimburse Errol Kevin Hempseed the sum of $11,112.54 in respect of insurance premiums and improvements to the property of 12 McLeod Street Emu Park;(i)         

to incur reasonable expenses to replace the hot water system at 12 McLeod Street in Emu Park;(ii)        

to pay the sum of $33,000 to Robert Harris Rivett solicitors on account of professional costs and out-of-pocket expenses in connection with the administration of the estate of the deceased and these proceedings;(iii)       

that the Administrator not expend any estate monies other than those authorised by these orders without the consent in writing of the solicitors for the plaintiff and the solicitors for the defendants or further order of the Court;(5)        

that until judgement or earlier order in these proceedings the Administrator file and serve upon the plaintiff and the defendants a quarterly administration account within 30 days of the end of each quarter, the first such account being due on or before 31 January 2014.(6)        

  1. Robert Harris Rivett Solicitors be restrained, and an injunction issued restraining the firm, from continuing to act for the Plaintiff.
  2. Costs of the parties on each application are reserved.
  3. The parties and the Administrator have liberty to apply.
  4. The Solicitor for the defendants is directed to bring in short minutes of Order reflecting these reasons.

CATCHWORDS:

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – LIMITED, SPECIAL AND CONDITIONAL GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION…

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AGLC
Hempseed v Ward [2013] QSC 348
Case
[2013] QSC 348
Decision Date

CaseChat Overview and Summary

The case of Hempseed v Ward concerns a dispute over the administration of the estate of a deceased person. The plaintiff, Hempseed, is the executor of the second last will of the deceased, but is being challenged by the defendants who allege that the deceased lacked testamentary capacity when they made their final will, of which Hempseed is also the executor. Additionally, the defendants argue that Hempseed exercised undue influence over the deceased. The case involves three wills, with the final will being the subject of contention. The court was required to decide whether the Public Trustee should be appointed as the administrator of the estate during the litigation and whether further directions should be given to control the actions of the administrator.

The court considered the issues of testamentary capacity and undue influence and concluded that there was sufficient evidence to warrant the appointment of the Public Trustee as the administrator pendente lite. The court was concerned about the potential conflict of interest given Hempseed's position as executor of the final will and the allegations against him. The court also considered the need for independent administration of the estate to protect the interests of all parties involved. The court issued detailed directions for the Public Trustee, including the collection and investment of estate assets, the payment of certain debts and expenses, and the filing of quarterly administration accounts. The court also restrained Hempseed's solicitors from continuing to act for him due to their potential role as material witnesses in the proceedings.

The final orders of the court included the appointment of the Public Trustee as the administrator pendente lite and the issuance of detailed directions for the administration of the estate. The court also restrained Hempseed's solicitors from continuing to act for him and reserved costs on each application. The parties and the administrator were granted liberty to apply for further orders as necessary. The defendants' solicitor was directed to bring in short minutes of the order reflecting the court's reasons.

The court's decision highlights the importance of independent administration of estates in cases where there are disputes over wills and the potential for conflicts of interest. The detailed directions issued by the court demonstrate a careful consideration of the needs of the estate and the interests of all parties involved. The restraint of Hempseed's solicitors serves as a reminder of the need to maintain the independence and impartiality of legal proceedings.

Orders

Orders of the court

1. The Public Trustee be appointed as Administrator pendente lite

2. The Administrator is directed as follows:

(1) The Administrator collect and get in the proceeds of:

(i) all accounts of the deceased held with any financial institution including, but not limited to, the three accounts held with the Rock Building Society; and

(ii) all policies of superannuation due to the deceased including, but not limited to, the policy with the Queensland Local Government Superannuation scheme.

That the Administrator cause all monies received on behalf of the estate of the deceased to be deposited in a trust account and, save for those monies authorised to be expended by these orders, invested in an interest-bearing account until judgement or earlier order in these proceedings.(2)

That the Administrator be authorised to pay all monies owing from time to time by the deceased, or by the estate of the deceased, to the Rockhampton Regional Council, the Australian Taxation Office and Suncorp Insurance.(3)

If no objection in writing be received from the defendants, by themselves or their solicitors, within 14 days hereof the administrator be authorised:(4)

to reimburse Errol Kevin Hempseed the sum of $11,112.54 in respect of insurance premiums and improvements to the property of 12 McLeod Street Emu Park;(i)

to incur reasonable expenses to replace the hot water system at 12 McLeod Street in Emu Park;(ii)

to pay the sum of $33,000 to Robert Harris Rivett solicitors on account of professional costs and out-of-pocket expenses in connection with the administration of the estate of the deceased and these proceedings;(iii)

that the Administrator not expend any estate monies other than those authorised by these orders without the consent in writing of the solicitors for the plaintiff and the solicitors for the defendants or further order of the Court;(5)

that until judgement or earlier order in these proceedings the Administrator file and serve upon the plaintiff and the defendants a quarterly administration account within 30 days of the end of each quarter, the first such account being due on or before 31 January 2014.(6)

1. Robert Harris Rivett Solicitors be restrained, and an injunction issued restraining the firm, from continuing to act for the Plaintiff.

2. Costs of the parties on each application are reserved.

3. The parties and the Administrator have liberty to apply.

4. The Solicitor for the defendants is directed to bring in short minutes of Order reflecting these reasons.

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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