Matruglio & anor v Thicknesse-Fittler
[2022] QSC 303
•13 December 2022 (ex tempore)
SUPREME COURT OF QUEENSLAND
CITATION:
Matruglio & anor v Thicknesse-Fittler [2022] QSC 303
PARTIES:
KRISTEN MATRUGLIO
(first applicant)
LAURA MATRUGLIO
(second applicant)
v
ROBERT THICKNESSE-FITTLER(respondent)
FILE NO/S:
BS 5591/22
DIVISION:
Trial Division
PROCEEDING:
Application (originating)
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
13 December 2022 (ex tempore)
DELIVERED AT:
Brisbane
HEARING DATE:
9 June 2022 and 13 December 2022
JUDGE:
Boddice J
ORDER:
THE ORDER OF THE COURT IS THAT:
1. Subject to the formal requirements of the Registrar, a Grant of Letters of Administration on Intestacy of the estate of RICHARD GREGORY MOUCKA be granted to KRISTEN MATRUGLIO and LAURA MATRUGLIO.
2. The Applicant’s costs of the application be paid out of the estate of the Deceased on the indemnity basis.
CATCHWORDS:
SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – INTESTACY AND DISTRIBUTION ON INTESTACY – where the deceased died on 19 July 2020 – where the deceased was survived by three children – where the deceased used a pro forma will kit – where the deceased’s placed his signature on the document, before parts of the documents were complete – whether letters of administration should be granted on the deceased’s intestacy – whether it is appropriate to appoint two of the deceased’s children as executors
Succession Act 1981 (Qld) s 10.
COUNSEL:
A Bratti for the applicant
SOLICITORS:
Armstrong Legal for the applicant
By application filed 12 May 2022, the applicants sought orders that, subject to the formal requirements of the Registrar, the applicants be granted letters of administration of the estate of their father, limited to, effectively, collecting the estate assets, preserving the estate and paying the debts.
The applicants now seek an order that, subject to the formal requirements of the Registrar, the applicants be jointly granted letters of administration, on intestacy, of the estate of the deceased.
The deceased died on 19 July 2020. He left a modest estate in Queensland. The deceased’s death certificate records he was never married. He was survived by his children. They are the applicants and a third child. They would be the persons who would take a share of the deceased’s estate on intestacy.
The deceased, prior to his death, had access to a pro forma will kit. A document was prepared on that pro forma will kit. However, after inquiries were made, it became apparent there were issues as to whether that document had been executed by the deceased, when it was in a completed form.
The document was in the character of a document intended to be the last Will of the deceased. Its form purported to revoke all previous Wills; to appoint nominated people as executors; and to make various gifts of the deceased’s property.
The difficulty in propounding that document as the last Will of the deceased is that there is evidence before the Court, by way of affidavit from one of the witnesses to the document, to the effect that the deceased’s signature was affixed before aspects of the document were completed and, in particular, the provisions which disposed of the deceased’s estate.
There is, therefore, a real doubt as to whether that document could meet the requirements of s 10 of the Succession Act 1981 (Qld). For obvious reasons, the applicants do not propound that document as the last Will of the deceased.
There is no suggestion the deceased otherwise has a valid Will. It is therefore a matter for his estate to pass by way of intestacy.
Having considered the material, I am satisfied there would be no proper basis to propound the document as the last valid Will of the deceased. There being no evidence of any other prior Will, I am satisfied it is appropriate to make orders granting letters of administration on the deceased’s intestacy.
One issue that must be considered is whether it is appropriate to appoint two of the deceased’s three children by grant of letters of administration.
Having regard to the material, I am satisfied it is appropriate to appoint those two applicants. The deceased’s estate is a modest estate. The consequence of the intestacy is that all three children will benefit equally in respect of the matter. In those circumstances, there is no good reason why the applicants ought not to be appointed pursuant to the grant of letters of administration of intestacy.
The applicants seek an order that the costs of the application be paid out of the estate of the deceased, on an indemnity basis. I am satisfied it is appropriate to make an order for costs and to award those costs on an indemnity basis.
The application was required to be brought. A reasonable approach has ultimately been adopted in respect of how to dispose of the application. In those circumstances, the applicants ought to receive their costs of the application, assessed on an indemnity basis, out of the estate of the deceased.
I make orders in the terms of the draft, which I initial and place with the papers.
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