Hoult v Denschel - [2024] QSC 318

SUPREME COURT OF QUEENSLAND

CITATION:

Hoult v Denschel [2024] QSC 318

PARTIES:

FREDERICK LEIGH RICHARD HOULT

(applicant)

v
PETER DENSCHEL

(respondent)

FILE NO:

14491 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 December 2024

DELIVERED AT:

Brisbane

HEARING DATE:

19 November 2024; 13 December 2024

JUDGE:

Davis J

ORDERS:

1.   It is declared that the last valid will of Alison Robertson Hoult (“the deceased”) is the will dated 14 January 2019 (“the 2019 Will”).

2.   A grant of letters of administration with the 2019 Will is made to the applicant subject to the formal requirements of the Registrar.

3.   By 4 pm on 24 January 2025:

a.    the respondent is to vacate and deliver up to the applicant possession of the property situated at 1 Caribbean Court, Deception Bay (“the property”);

b.    the respondent is to remove all his possessions from the property;

c.    the respondent is to leave the property in a clean and tidy manner for the applicant;

d.    the respondent is to deliver all keys in his possession to the applicant’s solicitors at GKS Lawyers, Level 2, 19 Creek Street, Redcliffe, Qld, 4020.

4.   The applicant’s costs of this application be paid from the deceased’s estate on the indemnity basis.

5.   The respondent reimburse the deceased’s estate the applicant’s costs of this application in paragraph 4 above.

CATCHWORDS:

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – TO WHOM GRANTED AND WHEN NECESSARY GENERALLY – where the testator made a will in 2019 and a will in 2021 – where the named executors of the 2019 will renounced – where the deceased’s son had priority to letters of administration of the 2019 will – where the 2021 will was purportedly made two weeks before the death of the deceased – where the 2021 will named a friend of the testator as both executor and sole beneficiary – where there was evidence casting doubt upon the validity of the 2021 will – where the testator’s son brought application to have the 2019 will pronounced as the final valid will of the testator – where from the time of death of the testator the executor of the 2021 will took no steps in administration – where the executor of the 2021 will took no steps to propound the 2021 will – where the application to have the 2019 will pronounced was served upon the executor named in the 2021 will – where the executor of the 2021 will did not appear on that application – whether the 2019 will ought to be pronounced as the last valid will of the testator – whether it was necessary to try the question of the validity of the 2021 will

Succession Act 1981 (Qld), s 41
Uniform Civil Procedure Rules 1999 (Qld), r 603

Hoare v Rayburn [2010] WASC 301, cited
Re Grey Smith, Deceased (1978) VR 596, cited
Re Levy Deceased (No 2) [1957]…

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 Hoult v Denschel

Details

AGLC: Hoult v Denschel [2024] QSC 318
Case: [2024] QSC 318
Decision Date: 16 December 2024

CaseChat Overview and Summary

The case of Hoult v Denschel involved a dispute over the succession of Alison Robertson Hoult's estate, with the primary issue being the validity of two wills made by the deceased in 2019 and 2021. The executors of the 2019 will had renounced, and the deceased's son, Frederick Hoult, had priority to letters of administration of that will. The 2021 will, made two weeks before the deceased's death, named a friend of the testator as executor and sole beneficiary. There was evidence casting doubt upon the validity of the 2021 will, prompting Frederick to bring an application to have the 2019 will pronounced as the final valid will of the deceased. The executor of the 2021 will, Mr Denschel, did not take any steps towards administering the estate and did not appear on the application, leading to the court having to determine whether the 2019 will should be pronounced as the last valid will and whether it was necessary to try the question of the validity of the 2021 will.

The court needed to decide whether the 2019 will should be declared as the last valid will of the deceased and whether it was necessary to address the validity of the 2021 will. The 2019 will appeared to be valid on its face, and Frederick had priority to letters of administration for that will. Mr Denschel, the executor named in the 2021 will, had not taken any steps to propound the will and had failed to communicate with Frederick's solicitors. The court had to consider whether it was necessary to examine the validity of the 2021 will, given that Mr Denschel had not acted as executor and had not contested the application.

The court concluded that the 2019 will was valid and should be pronounced as the last valid will of the deceased. Frederick, as the administrator of the estate, should have possession of the property. Mr Denschel was ordered to vacate the property and deliver it to Frederick in a clean and tidy manner. The court also ordered that Mr Denschel pay the costs of the application, as he had asserted he was the executor but had taken no action to prove the 2021 will. The court ruled that the 2019 will was the last valid will of the deceased, and letters of administration with the 2019 will should be granted to Frederick. Mr Denschel was given a deadline to vacate the property and was ordered to reimburse Frederick for the costs of the application.

In summary, the court declared that the 2019 will was the last valid will of the deceased, granted letters of administration with the 2019 will to Frederick, and ordered Mr Denschel to vacate the property by a specified date. The court also ordered Mr Denschel to reimburse Frederick for the costs of the application. The decision effectively dismissed the 2021 will as invalid and prioritised the 2019 will as the final testament of the deceased.

Orders

Orders of the court

1. It is declared that the last valid will of Alison Robertson Hoult (“the deceased”) is the will dated 14 January 2019 (“the 2019 Will”).

2. A grant of letters of administration with the 2019 Will is made to the applicant subject to the formal requirements of the Registrar.

3. By 4 pm on 24 January 2025:

a. the respondent is to vacate and deliver up to the applicant possession of the property situated at 1 Caribbean Court, Deception Bay (“the property”);

b. the respondent is to remove all his possessions from the property;

c. the respondent is to leave the property in a clean and tidy manner for the applicant;

d. the respondent is to deliver all keys in his possession to the applicant’s solicitors at GKS Lawyers, Level 2, 19 Creek Street, Redcliffe, Qld, 4020.

4. The applicant’s costs of this application be paid from the deceased’s estate on the indemnity basis.

5. The respondent reimburse the deceased’s estate the applicant’s costs of this application in paragraph 4 above.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The 2019 Will appears valid on its face. I can see no reason why I would not follow the body of authority that I have identified. In the absence of any higher authority I should follow it.Conclusions Letters of administration of the 2019 Will ought to be granted to Frederick. The force and validity of the 2019 Will ought to be pronounced which effectively pronounces against the force and validity of the 2021 Will. Frederick, being the administrator of Alison’s estate, should have possession of the house. It is fair to give Mr Denschel a month to vacate. Mr Denschel should pay the costs of the application. He asserted that he was the executor of the estate.[12] Then he took no action to prove the 2021 Will. This application was only necessary because he did not communicate with Frederick’s solicitors. He could have told them that he did not seek to prove the 2021 Will. [12]See the death certificate. Orders1.It is declared that the last valid will of Alison Robertson Hoult (“the deceased”) is the will dated 14 January 2019 (“the 2019 Will”).2.A grant of letters of administration with the 2019 Will is made to the applicant subject to the formal requirements of the Registrar.3.By 4 pm on 24 January 2025:a. the respondent is to vacate and deliver up to the applicant possession of the property situated at 1 Caribbean Court, Deception Bay (“the property”);b. the respondent is to remove all his possessions from the property;c. the respondent is to leave the property in a clean and tidy manner for the applicant;d. the respondent is to deliver all keys in his possession to the applicant’s solicitors at GKS Lawyers, Level 2, 19 Creek Street, Redcliffe, Qld, 4020.4.The applicant’s costs of this application be paid from the deceased’s estate on the indemnity basis.5.The respondent reimburse the deceased’s estate the applicant’s costs of this application in paragraph 4 above.

Ratio Decidendi

Legal Principle Established

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CITATION:	Hoult v Denschel [2024] QSC 318
PARTIES:	FREDERICK LEIGH RICHARD HOULT (applicant) v PETER DENSCHEL (respondent)
FILE NO:	14491 of 2024
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	16 December 2024
DELIVERED AT:	Brisbane
HEARING DATE:	19 November 2024; 13 December 2024
JUDGE:	Davis J
ORDERS:	1. It is declared that the last valid will of Alison Robertson Hoult (“the deceased”) is the will dated 14 January 2019 (“the 2019 Will”). 2. A grant of letters of administration with the 2019 Will is made to the applicant subject to the formal requirements of the Registrar. 3. By 4 pm on 24 January 2025: a. the respondent is to vacate and deliver up to the applicant possession of the property situated at 1 Caribbean Court, Deception Bay (“the property”); b. the respondent is to remove all his possessions from the property; c. the respondent is to leave the property in a clean and tidy manner for the applicant; d. the respondent is to deliver all keys in his possession to the applicant’s solicitors at GKS Lawyers, Level 2, 19 Creek Street, Redcliffe, Qld, 4020. 4. The applicant’s costs of this application be paid from the deceased’s estate on the indemnity basis. 5. The respondent reimburse the deceased’s estate the applicant’s costs of this application in paragraph 4 above.
CATCHWORDS:	SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – TO WHOM GRANTED AND WHEN NECESSARY GENERALLY – where the testator made a will in 2019 and a will in 2021 – where the named executors of the 2019 will renounced – where the deceased’s son had priority to letters of administration of the 2019 will – where the 2021 will was purportedly made two weeks before the death of the deceased – where the 2021 will named a friend of the testator as both executor and sole beneficiary – where there was evidence casting doubt upon the validity of the 2021 will – where the testator’s son brought application to have the 2019 will pronounced as the final valid will of the testator – where from the time of death of the testator the executor of the 2021 will took no steps in administration – where the executor of the 2021 will took no steps to propound the 2021 will – where the application to have the 2019 will pronounced was served upon the executor named in the 2021 will – where the executor of the 2021 will did not appear on that application – whether the 2019 will ought to be pronounced as the last valid will of the testator – whether it was necessary to try the question of the validity of the 2021 will Succession Act 1981 (Qld), s 41 Uniform Civil Procedure Rules 1999 (Qld), r 603 Hoare v Rayburn [2010] WASC 301, cited Re Grey Smith, Deceased (1978) VR 596, cited Re Levy Deceased (No 2) [1957]…