Leitch v Dore - [2005] QSC 69

SUPREME COURT OF QUEENSLAND

CITATION:

Leitch & Anor v Dore [2005] QSC 069

PARTIES:

JAMES WILSON LEITCH AND DAVID ANDREW LEITCH
(applicant)
v
CHRISTOPHER PATRICK DORE AS PERSONAL REPRESENTATIVE OF THE ESTATE OF WILLIAM HILTON BOYD CHENALL
(respondent)

FILE NO/S:

BS 2343 of 2005

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

8 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

5 April 2005

JUDGE:

White J

ORDER:

Declare that the applicants do not have an interest in the estate of William Hilton Boyd Chenall sufficient to give them standing to bring an application pursuant to r 640 of the Uniform Civil Procedure Rules 1999.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – PROBATE AND LETTERS OF ADMINISTRATION – PRACTICE – QUEENSLAND – PROOF IN SOLEMN FORM – after making of grant in common form – interested person – whether a wish to take under a validly executed will is sufficient interest to constitute standing pursuant to an application under r 640, Uniform Civil Procedure Rules 1999 (Qld)

Uniform Civil Procedure Rules 1999 (Qld), r 640

Hogarth v Johnson [1987] 2 Qd R 383, cited
In re Devoy, Fitzgerald and Pender v Fitzgerald [1943] St R Qd 137, cited
In re Nickson [1916] VR 274, cited
In the Goods of Chamberlain [1867] LR 1 T&D 316, cited
In the Will of William Henry Keepkie Deceased [1960] Qd R 436, cited
Nock v Austin [1918] 25 CLR 518, cited

Poulos v Pellicer In the Estate of Culina [2004] NSWSC 504, not applied

COUNSEL:

Ms R Treston for the applicants
Mr T Quinn for the respondent
Mr S Whitla solicitor for the residuary beneficiary

SOLICITORS:

Dibbs Barker Gosling for the applicants
de Groots for the respondent
McCullough Robertson for the residuary beneficiary

The applicants are beneficiaries under the will of their late uncle who was their mother’s brother. The respondent is the executor of that will, a beneficiary under the will and the deceased’s solicitor. The deceased died on 11 February 2005. The respondent obtained probate in common form on 17 March 2005. The applicants seek an order pursuant to r 640 of the Uniform Civil Procedure Rules that the respondent bring the grant of probate so obtained into the Registry. This has the effect, under the rules, that the personal representative must start a proceeding for a grant in solemn form of law.

Rule 640 provides

“(1) If the court has made a grant in common form of probate or of administration with the will, any person who claims to have a sufficient interest in the administration of the estate may apply to the court for an order for the personal representative to bring the grant into the registry.
(2)However, the court must not make the order unless it is satisfied the applicant has an interest in the administration of the estate, or a reasonable prospect of establishing an interest in the administration of the estate.
(3)If the court orders the personal representative to bring…

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 Leitch v Dore

Details

AGLC: Leitch v Dore [2005] QSC 69
Case: [2005] QSC 69
Decision Date: 8 April 2005

CaseChat Overview and Summary

Leitch v Dore was a matter concerning the interpretation and application of succession law in Queensland. The applicants, Leitch and others, sought to challenge a grant of probate of a will. The deceased, William Hilton Boyd Chenall, had executed a will leaving his estate to his son, Dore. After the grant of probate in common form, the applicants sought to apply for proof in solemn form, arguing that they had an interest in the estate. The applicants contended that their interest in the estate stemmed from a wish to take under the will. Dore opposed the application, arguing that the applicants did not have a sufficient interest to bring such an application.

The court was required to determine whether a mere wish to take under a validly executed will is sufficient to constitute an interest in the estate, which would confer standing to bring an application for proof in solemn form under rule 640 of the Uniform Civil Procedure Rules 1999 (Qld). The court considered the relevant statutory provisions and case law on the meaning of "interest" in the context of succession law. The court also examined the principles of standing and the purpose of the rules governing probate and administration of estates.

The court found that the applicants did not have an interest in the estate of William Hilton Boyd Chenall sufficient to give them standing to bring an application for proof in solemn form. The court held that an interest in the estate must be more than a mere wish to take under a will. Instead, the applicants must have a legal or equitable interest in the estate, such as a beneficiary or heir. The court emphasised that the rules governing probate and administration of estates are intended to provide a clear and efficient process for the distribution of estates, and that standing to bring an application for proof in solemn form is limited to those with a genuine interest in the estate. The court accordingly dismissed the application and declared that the applicants did not have an interest in the estate sufficient to give them standing to bring an application under rule 640 of the Uniform Civil Procedure Rules 1999 (Qld).

Orders

Orders of the court

Declare that the applicants do not have an interest in the estate of William Hilton Boyd Chenall sufficient to give them standing to bring an application pursuant to r 640 of the Uniform Civil Procedure Rules 1999.

Background

Background to the litigation

Full text does not contain this section.

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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CITATION:	Leitch & Anor v Dore [2005] QSC 069
PARTIES:	JAMES WILSON LEITCH AND DAVID ANDREW LEITCH (applicant) v CHRISTOPHER PATRICK DORE AS PERSONAL REPRESENTATIVE OF THE ESTATE OF WILLIAM HILTON BOYD CHENALL (respondent)
FILE NO/S:	BS 2343 of 2005
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	8 April 2005
DELIVERED AT:	Brisbane
HEARING DATE:	5 April 2005
JUDGE:	White J
ORDER:	Declare that the applicants do not have an interest in the estate of William Hilton Boyd Chenall sufficient to give them standing to bring an application pursuant to r 640 of the Uniform Civil Procedure Rules 1999.
CATCHWORDS:	SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – PROBATE AND LETTERS OF ADMINISTRATION – PRACTICE – QUEENSLAND – PROOF IN SOLEMN FORM – after making of grant in common form – interested person – whether a wish to take under a validly executed will is sufficient interest to constitute standing pursuant to an application under r 640, Uniform Civil Procedure Rules 1999 (Qld) Uniform Civil Procedure Rules 1999 (Qld), r 640 Hogarth v Johnson [1987] 2 Qd R 383, cited In re Devoy, Fitzgerald and Pender v Fitzgerald [1943] St R Qd 137, cited In re Nickson [1916] VR 274, cited In the Goods of Chamberlain [1867] LR 1 T&D 316, cited In the Will of William Henry Keepkie Deceased [1960] Qd R 436, cited Nock v Austin [1918] 25 CLR 518, cited Poulos v Pellicer In the Estate of Culina [2004] NSWSC 504, not applied
COUNSEL:	Ms R Treston for the applicants Mr T Quinn for the respondent Mr S Whitla solicitor for the residuary beneficiary
SOLICITORS:	Dibbs Barker Gosling for the applicants de Groots for the respondent McCullough Robertson for the residuary beneficiary