King v Wogandt: Re Beutel (deceased) - [2015] QSC 98

SUPREME COURT OF QUEENSLAND

CITATION:

King v Wogandt: Re Beutel (deceased) [2015] QSC 98

PARTIES:

JEANETTE THERESE KING
(applicant)

v

JUNE ANNETTE WOGANDT as executor of the estate of Charles William Leslie Beutel
(respondent)

FILE NO/S:

BS390/14

DIVISION:

Trial

PROCEEDING:

Application filed 14 December 2014

DELIVERED ON:

30 April 2015

DELIVERED AT:

Brisbane

HEARING DATE:

16 January 2015

JUDGE:

Jackson J

ORDERS:

The order of the Court is that:

1.   The respondent is removed as executor of the estate.

2.   The grant of probate to the respondent dated 15 September 2010 is revoked.

3.   Robert Phillip Howard Gunningham is appointed administrator and trustee of the estate and is granted letters of administration with the will dated 20 August 1998 attached.

4.   The respondent pay the applicant’s costs of the application.

CATCHWORDS:

SUCCESSION – PERSONAL REPRESENTATIVES – TITLE AND ESTATE – REMOVAL AND DISCHARGE – GENERALLY – where an application by the respondent to rectify the testator’s last will was dismissed – where an order was made that the respondent sell the estate’s interest in land and administer the estate according to law at the time the application was dismissed – where the respondent failed to comply with the order – where the applicant applied for removal of the respondent as executor and trustee of the estate – whether the respondent should be removed as executor of the estate

Succession Act 1981 (Qld), s 6

Baldwin v Greenland [2007] 1 Qd R 117; [2006] QCA 293, cited
Colston v McMullen [2012] QCA 109, cited
Colston v McMullen [2010] QSC 292, cited
In the Will of Fernando Masci [2014] QSC 281, cited
Jee v Jee [2012] QSC 210, considered

King v Wogandt: Re Beutel (deceased) [2014] QSC 175, cited
Letterstedt v Broers (1884) 9 App Cas 371; [1884] UKPC 18, followed
Miller v Cameron (1936) 54 CLR 572; [1936] HCA 13, followed

Schumacher v Emmerson [2013] QSC 205, considered

Williams v Williams [2005] 1 Qd R 105; [2004] QSC 269, applied

COUNSEL:

M Lawrence for the applicant
The respondent in person

SOLICITORS:

Graceville Lawyers for the applicant
No solicitors for the respondent

Jackson J: The applicant seeks an order that the respondent be removed as executor and trustee of the estate of Charles William Leslie Beutel (“the testator”). The applicant seeks further orders that the grant of probate to the respondent be revoked and that Robert Phillip Howard Gunningham be appointed personal representative and trustee of the estate, together with consequential orders and costs.

In King v Wogandt: Re Beutel (deceased)[1] (“the first judgment”) I dismissed an application made by the respondent to rectify the testator’s last will, dated 20 August 1998, and made a declaration that the applicant is the beneficiary identified in cl 3(a) of the will. At the same time, I made other orders, including an order that the respondent sell the estate’s interest in land described as the Dundathu property so as to collect 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.

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Details

Case: [2015] QSC 98
Decision Date: 30 April 2015

CaseChat Overview and Summary

In the case of King v Wogandt: Re Beutel (deceased), the dispute involved the management and administration of the estate of the deceased, Beutel. The deceased's estate was contested by the respondent, Wogandt, who was initially appointed as the executor. The applicant, King, sought the removal of Wogandt as executor and trustee due to alleged mismanagement and non-compliance with court orders. The matter was brought before the Supreme Court of New South Wales.

The central legal issue before the court was whether Wogandt should be removed from his position as executor of Beutel's estate. This involved assessing Wogandt's compliance with court orders, particularly regarding the sale of estate property and the administration of the estate according to the law. The court had to determine if Wogandt's actions warranted his removal based on his failure to adhere to the court's previous directives.

The court found that Wogandt had not complied with the order to sell the estate's interest in land and administer the estate as per the law. The respondent's failure to follow these directives indicated a lack of fitness to continue in his role as executor. Given the circumstances, the court concluded that Wogandt's removal was necessary to ensure the proper administration of the estate. Consequently, the court revoked the grant of probate to Wogandt and appointed Robert Phillip Howard Gunningham as the new administrator and trustee of the estate. The court also ordered Wogandt to pay the applicant's costs associated with the application.

The final orders of the court were as follows: the respondent, Wogandt, was removed as executor of the estate; the grant of probate issued to Wogandt on 15 September 2010 was revoked; Robert Phillip Howard Gunningham was appointed as the new administrator and trustee of the estate and granted letters of administration with the will dated 20 August 1998 attached; and Wogandt was ordered to pay the applicant's costs of the application.

Orders

Orders of the court

The order of the Court is that:

1. The respondent is removed as executor of the estate.

2. The grant of probate to the respondent dated 15 September 2010 is revoked.

3. Robert Phillip Howard Gunningham is appointed administrator and trustee of the estate and is granted letters of administration with the will dated 20 August 1998 attached.

4. The respondent pay the applicant’s costs of the application.

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:	King v Wogandt: Re Beutel (deceased) [2015] QSC 98
PARTIES:	JEANETTE THERESE KING (applicant) v JUNE ANNETTE WOGANDT as executor of the estate of Charles William Leslie Beutel (respondent)
FILE NO/S:	BS390/14
DIVISION:	Trial
PROCEEDING:	Application filed 14 December 2014
DELIVERED ON:	30 April 2015
DELIVERED AT:	Brisbane
HEARING DATE:	16 January 2015
JUDGE:	Jackson J
ORDERS:	The order of the Court is that: 1. The respondent is removed as executor of the estate. 2. The grant of probate to the respondent dated 15 September 2010 is revoked. 3. Robert Phillip Howard Gunningham is appointed administrator and trustee of the estate and is granted letters of administration with the will dated 20 August 1998 attached. 4. The respondent pay the applicant’s costs of the application.
CATCHWORDS:	SUCCESSION – PERSONAL REPRESENTATIVES – TITLE AND ESTATE – REMOVAL AND DISCHARGE – GENERALLY – where an application by the respondent to rectify the testator’s last will was dismissed – where an order was made that the respondent sell the estate’s interest in land and administer the estate according to law at the time the application was dismissed – where the respondent failed to comply with the order – where the applicant applied for removal of the respondent as executor and trustee of the estate – whether the respondent should be removed as executor of the estate Succession Act 1981 (Qld), s 6 Baldwin v Greenland [2007] 1 Qd R 117; [2006] QCA 293, cited Colston v McMullen [2012] QCA 109, cited Colston v McMullen [2010] QSC 292, cited In the Will of Fernando Masci [2014] QSC 281, cited Jee v Jee [2012] QSC 210, considered King v Wogandt: Re Beutel (deceased) [2014] QSC 175, cited Letterstedt v Broers (1884) 9 App Cas 371; [1884] UKPC 18, followed Miller v Cameron (1936) 54 CLR 572; [1936] HCA 13, followed Schumacher v Emmerson [2013] QSC 205, considered Williams v Williams [2005] 1 Qd R 105; [2004] QSC 269, applied
COUNSEL:	M Lawrence for the applicant The respondent in person
SOLICITORS:	Graceville Lawyers for the applicant No solicitors for the respondent