JJJ v the Administrator of the Estate of EEE (Deceased)

[2013] QDC 234

[2013] QDC 234

DISTRICT COURT OF QUEENSLAND

CIVIL JURISDICTION

JUDGE ROBIN QC

No. 2498 of 2013

JJJ  Applicant

and

THE ADMINISTRATOR OF THE ESTATE
OF EEE (DECEASED)  Respondent

BRISBANE

10.58 AM, MONDAY, 22 JULY 2013

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r116

Succession Act 1981 s41 - Trusts Act 1973 s5, s44, s96 - Use of s96 of the Trusts Act to seek directions to a trustee obviating the need for other proceedings for construction of a will and for better provisions from the testatrix’s estate

HIS HONOUR:   The applicant and the deceased had defacto relationship of long standing.  She died suddenly on the 2^nd of January 2011 intestate.  She was the registered owner of a property at Clontarf where she lived with the applicant.  Her title is, for today’s purposes, sufficiently established by production of exhibit 3, a current title search.  Mr Hutchinson produced that while the matter was stood down to satisfy the court’s concern at making an order which, in part, requires a transfer of that property into the name of the applicant.  The death and the identity of the deceased’s offspring who, in the ordinary course, would take on intestacy, are sufficiently established by the production now by Mr Hutchinson of a copy of the death certificate.  We can be confident that an original of that document was exhibit 3 in the application made to the Supreme Court by Mr Johnson for letters of administration in respect of the deceased’s estate.  It’s file 3887 2010 and exhibit 1 is the file summary downloaded from the Queensland Court’s website by my associate. 

The application before this court, filed on the 30^th of September 2011, was the familiar one under section 41 of the Succession Act 1981. This was made on the last, or close to the last, day allowed by the Act for such an application. It named as respondent “the administrator of the estate of (the deceased)”. At the time there was no administrator. The deceased’s two daughters declined to take on that role or make an application of the kind that the applicant himself in due course did make successfully to the Supreme Court for a grant. That situation placed him in the invidious situation of being on both sides of the record, rendering it appropriate that a more suitable party, or more suitable parties, be identified to respond to the Succession Act application.

The two daughters, with the advantage of independent legal advice, have indicated their consent to the orders which Mr Hutchinson asks be made today.  It’s worth clarifying that the source of their advice, an Australian legal practitioner associated with the Victorian Firm “Hutchinson Legal”, has no connection whatever with Mr Hutchinson who’s appeared for the applicant today, nor is there any connection with the firm.  Rule 69 is pointed to as the Court’s warrant for those parts of the order which substitute the two daughters as respondent in the application.  Rule 69(1) provides that at any stage of a proceeding the Court may order that “(b) any of the following persons be included as the party – (i) a person whose presence before the Court is necessary to enable the Court to adjudicate effectually and completely on all matters in dispute in the proceeding; (ii)  a person whose presence before the Court would be desirable, just and convenient to enable the Court to adjudicate effectively and completely on all matters in dispute connected with the proceeding.”

There are affidavits from each of the daughters (perhaps inappropriately headed with the name of the Supreme Court proceeding, but accepted for filing by the Registrar of this Court) which show the consent of each of the daughters to be appointed and indeed to the balance of the order which is made today.  It declares that the provisions of sections 35 to 37 of the Act do not make adequate provision for the applicant from the estate and that, with a view to remedying that, the estate be distributed in a specified manner which allots to each of the daughters an amount of money and otherwise makes the applicant the beneficiary of the estate. The outcome is one the court should sanction.  Orders as per initial draft.
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