Kerr v Kerr - [2017] QSC 323

SUPREME COURT OF QUEENSLAND

CITATION:

Kerr v Kerr & Anor [2017] QSC 323

PARTIES:

MICHELLE MARGARET KERR
(Plaintiff/Applicant)

AND

BRUCE ARTHUR KERR
(First Defendant/Respondent)

And

VANESA BRONWYN JOY PAVIOUR
(Second Defendant/Respondent)

FILE NO/S:

S723/2017

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Rockhampton

DELIVERED ON:

20 December 2017

DELIVERED AT:

Rockhampton

HEARING DATE:

8 December 2017

JUDGE:

McMeekin J

ORDER:

Subject to the formal requirements of the Registrar, an Order to Administer the Estate of June Margaret Kerr (deceased) according to her Will dated 31 October 1997 (a copy of which is exhibit MMK-03 to the affidavit of Michelle Margaret Kerr dated 19 October 2017) be granted to the Public Trustee of Queensland;     1.

That the First Defendant pay the costs of the Plaintiff including the costs of this application on the indemnity basis;     2.

That the Plaintiff’s costs of and incidental to the proceedings including the costs of this application be paid out of the estate to the extent that they are not met by the First Defendant;     3.

That the First Defendant pay the costs of the Second Defendant on the standard basis;     4.

That the parties have liberty to apply.     5.

CATCHWORDS:

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GENERALLY – where the deceased died on 15 April 2017 – where on 15 April 2017 the first defendant procured the deceased’s signature on a document which purported to be her last Will –where the effect of the 2017 document is to make a very significant gift to the first defendant’s girlfriend, the second defendant – where the deceased also left a Will dated 31 October 1997 – where the plaintiff’s reason for bringing the litigation was to propound for the 1997 Will and against the 15 April 2017 document – where the relief sought is not now opposed

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – COSTS – WHERE LITIGATION NOT CAUSED BY TESTATOR – REASONABLENESS –– where the plaintiff had good reason to doubt the force and validity of the 15 April document – where the existence of the 15 April document was not revealed until 4 months after the deceased died – where the first defendant has not acted openly and honestly with the plaintiff – where the first plaintiff has acted entirely properly towards first defendant – where it is argued that the second defendant should never have been joined to the proceedings – where the second defendant had a considerable interest in the proceedings – whether it was sufficient to justify the plaintiff including the second defendant in the suit - whether the plaintiff should be protected as to costs by both the first and second defendants

Powers of Attorney Act 1998 (Qld), s 19, s 73
Succession Act 1981 (Qld), s 45
Uniform Civil Procedure Rules 1999 (Qld), r 62, r 603, r 681

In the Goods of the Earl of Levin (1889) LR 15 PD 22, cited
Mitchell v Gard (1863) 3 Sw & Tr 275, considered
Nelson v…

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 Kerr v Kerr

Details

AGLC: Kerr v Kerr [2017] QSC 323
Case: [2017] QSC 323
Decision Date: 20 December 2017

CaseChat Overview and Summary

In the matter of Kerr v Kerr, the deceased, June Margaret Kerr, passed away on 15 April 2017. The dispute arose over the validity of a document dated 15 April 2017, which purported to be the deceased's last Will. The document allegedly made a significant gift to the first defendant's girlfriend, the second defendant. The plaintiff sought to challenge the validity of this document and propound for the deceased's Will dated 31 October 1997. The relief sought was not opposed.

The central legal issues before the court included whether the plaintiff had good reason to doubt the force and validity of the 15 April document and whether the first defendant acted openly and honestly. The court also had to consider whether the second defendant should have been included in the proceedings, given her substantial interest in the estate. The court examined the circumstances under which the 15 April document was executed and whether the first defendant procured it appropriately. Additionally, the court deliberated on the appropriate allocation of costs, considering the plaintiff's reasonable doubts and the first defendant's lack of transparency.

The court found that the plaintiff had acted properly in bringing the action to challenge the validity of the 15 April document. The court concluded that the first defendant did not act openly and honestly, and that the plaintiff's concerns about the document's validity were reasonable. The court granted an order to administer the estate according to the deceased's Will dated 31 October 1997. In terms of costs, the court ruled that the first defendant should pay the plaintiff's costs on an indemnity basis and the plaintiff's costs not met by the first defendant should be paid out of the estate. Furthermore, the first defendant was ordered to pay the second defendant's costs on the standard basis. The court also granted the parties liberty to apply for further orders if necessary.

Orders

Orders of the court

Subject to the formal requirements of the Registrar, an Order to Administer the Estate of June Margaret Kerr (deceased) according to her Will dated 31 October 1997 (a copy of which is exhibit MMK-03 to the affidavit of Michelle Margaret Kerr dated 19 October 2017) be granted to the Public Trustee of Queensland; 1.

That the First Defendant pay the costs of the Plaintiff including the costs of this application on the indemnity basis; 2.

That the Plaintiff’s costs of and incidental to the proceedings including the costs of this application be paid out of the estate to the extent that they are not met by the First Defendant; 3.

That the First Defendant pay the costs of the Second Defendant on the standard basis; 4.

That the parties have liberty to apply. 5.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Kerr v Kerr & Anor [2017] QSC 323
PARTIES:	MICHELLE MARGARET KERR (Plaintiff/Applicant) AND BRUCE ARTHUR KERR (First Defendant/Respondent) And VANESA BRONWYN JOY PAVIOUR (Second Defendant/Respondent)
FILE NO/S:	S723/2017
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court Rockhampton
DELIVERED ON:	20 December 2017
DELIVERED AT:	Rockhampton
HEARING DATE:	8 December 2017
JUDGE:	McMeekin J
ORDER:	Subject to the formal requirements of the Registrar, an Order to Administer the Estate of June Margaret Kerr (deceased) according to her Will dated 31 October 1997 (a copy of which is exhibit MMK-03 to the affidavit of Michelle Margaret Kerr dated 19 October 2017) be granted to the Public Trustee of Queensland; 1. That the First Defendant pay the costs of the Plaintiff including the costs of this application on the indemnity basis; 2. That the Plaintiff’s costs of and incidental to the proceedings including the costs of this application be paid out of the estate to the extent that they are not met by the First Defendant; 3. That the First Defendant pay the costs of the Second Defendant on the standard basis; 4. That the parties have liberty to apply. 5.
CATCHWORDS:	SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GENERALLY – where the deceased died on 15 April 2017 – where on 15 April 2017 the first defendant procured the deceased’s signature on a document which purported to be her last Will –where the effect of the 2017 document is to make a very significant gift to the first defendant’s girlfriend, the second defendant – where the deceased also left a Will dated 31 October 1997 – where the plaintiff’s reason for bringing the litigation was to propound for the 1997 Will and against the 15 April 2017 document – where the relief sought is not now opposed SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – COSTS – WHERE LITIGATION NOT CAUSED BY TESTATOR – REASONABLENESS –– where the plaintiff had good reason to doubt the force and validity of the 15 April document – where the existence of the 15 April document was not revealed until 4 months after the deceased died – where the first defendant has not acted openly and honestly with the plaintiff – where the first plaintiff has acted entirely properly towards first defendant – where it is argued that the second defendant should never have been joined to the proceedings – where the second defendant had a considerable interest in the proceedings – whether it was sufficient to justify the plaintiff including the second defendant in the suit - whether the plaintiff should be protected as to costs by both the first and second defendants Powers of Attorney Act 1998 (Qld), s 19, s 73 Succession Act 1981 (Qld), s 45 Uniform Civil Procedure Rules 1999 (Qld), r 62, r 603, r 681 In the Goods of the Earl of Levin (1889) LR 15 PD 22, cited Mitchell v Gard (1863) 3 Sw & Tr 275, considered Nelson v…