Maynard v The Estate of Maynard - [2015] QSC 144

SUPREME COURT OF QUEENSLAND

CITATION:

Maynard v The Estate of Maynard [2015] QSC 144

PARTIES:

Kylie Jane MAYNARD

(applicant)

v
THE ESTATE OF PETER JAMES ALEXANDER MAYNARD

(respondent)

FILE NO/S:

SC No 3869 of 2015

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

20 May 2015

DELIVERED AT:

Brisbane

HEARING DATE:

20 May 2015

JUDGE:

Atkinson J

ORDERS:

The orders of the court are that:

Kylie Jane Maynard be at liberty to swear to the death of Peter James Alexander Maynard, late of Castaways Beach in the State of Queensland.

A grant of letters of administration upon intestacy be made to Kylie Jane Maynard for the estate of Peter James Alexander Maynard, such grant to be made subject to the formal requirements of the Registrar.

The applicant’s costs of and incidental to the application be paid on an indemnity basis from the estate.

CATCHWORDS:

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – EVIDENCE – PRESUMPTION OF AND LEAVE TO SWEAR DEATH – where the applicant believed her husband to be deceased – where the respondent was the estate of applicant’s husband – where seven years had not expired such as to give rise to the common law presumption of death – where the applicant’s husband had left home to travel for a period – where the applicant’s husband went surfing in difficult seas – where there was evidence to suggest that the applicant’s husband had died whilst surfing – where extensive searches had been conducted in an attempt to locate the applicant’s husband – where no body had been found – where no death certificate had been issued – where the applicant’s husband had not left a will – whether the applicant should be granted leave to swear to the death of her husband – whether a grant of letters of administration upon intestacy should be made in favour of the applicant

Succession Act 1981 (Qld) s 6

Axon v Axon (1937) 59 CLR 395, referred to
In re Purton [1943] QWN 33, cited
Mackay v Mackay (1907) 18 WN (NSW) 266, cited
Re Bennett [2006] QSC 250, cited
Re Mayne (1858) 1 SW & TR 11; (1858) 164 ER 606, cited

Re Parker [1994] QSC 329; (1995) 2 Qd R 617, cited

COUNSEL:

D J Morgan for the applicant

No appearance for the respondent

SOLICITORS:

Cartwright Lawyers for the applicant

ATKINSON J: Section 6 of the Succession Act 1981 (Qld) gives jurisdiction to this Court “to grant … probate … or letters of administration of the estate of any deceased person, [and] to hear and determine all testamentary matters and to hear and determine all matters relating to the estate and the administration of the estate of any deceased person…”.
The jurisdiction in section 6 is very wide, but depends on the Court being satisfied that the person for whom probate or the administration of the estate is sought is, in fact, deceased. This usually requires the presentation…

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 144
Decision Date: 20 May 2015

CaseChat Overview and Summary

The matter before the court was an application by Kylie Jane Maynard to swear to the death of her husband, Peter James Alexander Maynard, and to be granted letters of administration upon intestacy. The dispute arose from the fact that Mr Maynard had gone missing while surfing in difficult seas, and despite extensive searches, no trace of him had been found. The court was tasked with determining whether Mrs Maynard should be granted leave to swear to her husband's death and whether letters of administration should be issued to her.

The legal issues the court had to resolve included whether the seven-year period required for the common law presumption of death had passed, and if not, whether there was sufficient evidence to support the presumption that Mr Maynard had died. Given the circumstances, the court had to weigh the evidence presented and decide whether it was more probable than not that Mr Maynard had perished.

In its reasoning, the court found that while the seven-year period had not elapsed, the evidence suggested that it was more likely than not that Mr Maynard had died. The court considered the lack of a body and the absence of a death certificate but noted the extensive searches conducted and the dangerous nature of the surfing conditions. The court concluded that the applicant had met the burden of proving that it was more probable than not that her husband had died, and granted leave for her to swear to his death. Consequently, the court ordered that letters of administration upon intestacy be issued to Mrs Maynard, subject to the formal requirements of the Registrar.

The orders of the court were that Kylie Jane Maynard be granted leave to swear to the death of Peter James Alexander Maynard. Additionally, a grant of letters of administration upon intestacy was made in favour of Mrs Maynard, to be completed in accordance with the formal requirements set by the Registrar. Furthermore, the applicant's costs of and incidental to the application were to be paid on an indemnity basis from the estate.

Orders

Orders of the court

The orders of the court are that:

1. Kylie Jane Maynard be at liberty to swear to the death of Peter James Alexander Maynard, late of Castaways Beach in the State of Queensland.

2. A grant of letters of administration upon intestacy be made to Kylie Jane Maynard for the estate of Peter James Alexander Maynard, such grant to be made subject to the formal requirements of the Registrar.

3. The applicant’s costs of and incidental to the application be paid on an indemnity basis from the estate.

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:	Maynard v The Estate of Maynard [2015] QSC 144
PARTIES:	Kylie Jane MAYNARD (applicant) v THE ESTATE OF PETER JAMES ALEXANDER MAYNARD (respondent)
FILE NO/S:	SC No 3869 of 2015
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	20 May 2015
DELIVERED AT:	Brisbane
HEARING DATE:	20 May 2015
JUDGE:	Atkinson J
ORDERS:	The orders of the court are that: Kylie Jane Maynard be at liberty to swear to the death of Peter James Alexander Maynard, late of Castaways Beach in the State of Queensland. A grant of letters of administration upon intestacy be made to Kylie Jane Maynard for the estate of Peter James Alexander Maynard, such grant to be made subject to the formal requirements of the Registrar. The applicant’s costs of and incidental to the application be paid on an indemnity basis from the estate.
CATCHWORDS:	SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – EVIDENCE – PRESUMPTION OF AND LEAVE TO SWEAR DEATH – where the applicant believed her husband to be deceased – where the respondent was the estate of applicant’s husband – where seven years had not expired such as to give rise to the common law presumption of death – where the applicant’s husband had left home to travel for a period – where the applicant’s husband went surfing in difficult seas – where there was evidence to suggest that the applicant’s husband had died whilst surfing – where extensive searches had been conducted in an attempt to locate the applicant’s husband – where no body had been found – where no death certificate had been issued – where the applicant’s husband had not left a will – whether the applicant should be granted leave to swear to the death of her husband – whether a grant of letters of administration upon intestacy should be made in favour of the applicant Succession Act 1981 (Qld) s 6 Axon v Axon (1937) 59 CLR 395, referred to In re Purton [1943] QWN 33, cited Mackay v Mackay (1907) 18 WN (NSW) 266, cited Re Bennett [2006] QSC 250, cited Re Mayne (1858) 1 SW & TR 11; (1858) 164 ER 606, cited Re Parker [1994] QSC 329; (1995) 2 Qd R 617, cited
COUNSEL:	D J Morgan for the applicant No appearance for the respondent
SOLICITORS:	Cartwright Lawyers for the applicant