McKeown v Harris; In the Will of - [2018] QSC 87

SUPREME COURT OF QUEENSLAND

CITATION:

McKeown v Harris & Anor; In the Will of Patricia Margaret Rice [2018] QSC 87

PARTIES:

MARY CATHERINE MCKEOWN
(Applicant)

v

TIMOTHY JAMES HARRIS
(First Respondent)

And

JANELLE IRENE HARRIS
(Second Respondent)

FILE NO/S:

S 593/2015

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

12 April 2018

DELIVERED AT:

Supreme Court Brisbane

HEARING DATE:

11 April 2018

JUDGE:

Crow J

ORDER:

Pursuant to s 6 of the Succession Act 1981 (Qld), the Court pronounces for the force and validity of the Will dated 31 May 2004 of Patricia Margaret Rice, deceased, late of Riverlea Nursing Home, River Terrace, Bundaberg in the State of Queensland, in solemn form of law;1.

Pursuant to s 6 of the Succession Act 1981 (Qld), probate of the testatrix’s said Will be granted to the applicant as the executor named therein;2.

The respondents’ costs of the proceeding, capped at $50,000, be assessed and paid out of the estate of the testatrix;3.

The applicant’s costs of the proceeding be paid out of the estate on the indemnity basis;4.

The applicant’s claims be otherwise dismissed;5.

The respondents’ counterclaims be dismissed.6.

CATCHWORDS:

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – PROCEDURE – QUEENSLAND – COMPROMISE PROCEEDINGS – where the parties have reached a compromise on the matters in dispute – where the compromise was placed formally into a deed – whether there can be a grant ordered in solemn form by consent

Succession Act 1981 (Qld), s 18

Dowling v St Vincent De Paul Society Inc [2003] VSC 454, cited
Germanotta v Germanotta & Ors [2012] QSC 116, cited
Giumelli v Giumelli (1999) 196 CLR 101, cited
Hansen v Hansen [2013] WASC 268, cited
Re Levy (deceased) (No 2) [1957] VR 662, cited
Lando v Sutton [2011] QSC 339, cited
Lindsay v McGrath [2016] 2 Qd R 160, cited
Richardson v Lo Pilato (Liquidator); in the Matter of Trojan Hospitality (ACT) Pty Limited (in Liq) [2014] FCA 888, cited Sadleir v Kahler & Ors [2018] QSC 67, cited
West v Smith [2018] WASC 12, cited
Williams v Schwarzback (No 2) [2016] WASC 43, cited
Wood & Anor v Trudinger; in the will of Alan Stewart Trudinger [2017] QSC 245, cited
Vandeleur v Franich [1991] 1 Qd R 481, cited

COUNSEL:

J Otto for the applicant

SOLICITORS:

Payne Butler Lang Solicitors for the applicant
Gleeson Lawyers for the respondents

Background

Patricia Margaret Rice passed away on 28 July 2015 aged 95 years. Ms Rice was never married and had no issue. By her duly executed last Will and testament dated 31 May 2004 (the Will) Ms Rice appointed her brother-in-law Ernest Arthur Hanson and her niece Mary Catherine McKeown (the applicant) as the executors and trustees of her estate.

By her Will, Ms Rice made a number of small bequests before bequeathing the rest and residue of her estate to her niece, the…

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: [2018] QSC 87
Decision Date: 12 April 2018

CaseChat Overview and Summary

McKeown v Harris; In the Will of Patricia Margaret Rice [2023] QSC 59 was a succession matter in which the court was asked to pronounce on the validity of a will and grant probate to one of the parties. Patricia Margaret Rice passed away, leaving behind a will dated 31 May 2004. The dispute arose between the applicant, who was named as the executor in the will, and the respondents, who contested the will’s validity. The case proceeded with the parties reaching a compromise, which was formalised in a deed.

The central legal issue for the court to determine was whether a compromise agreement, formalised in a deed, could be used to order a grant of probate in solemn form by consent. The court needed to assess the enforceability of the compromise agreement and whether the terms of the deed were sufficient to allow for the granting of probate in solemn form.

The court found that the compromise agreement, as formalised in the deed, was binding and enforceable. It held that the compromise allowed for the grant of probate in solemn form by consent. The court then proceeded to pronounce the validity of the will and granted probate to the applicant, who was named as the executor in the will. The court also addressed the costs associated with the proceeding, ordering that the respondents’ costs be capped at $50,000 and paid from the estate, while the applicant’s costs were to be paid on the indemnity basis. The applicant’s claims and the respondents’ counterclaims were dismissed.

In summary, the court recognised the enforceability of the compromise agreement and granted the requested probate in solemn form by consent, while also addressing the financial implications of the proceeding.

Orders

Orders of the court

Pursuant to s 6 of the Succession Act 1981 (Qld), the Court pronounces for the force and validity of the Will dated 31 May 2004 of Patricia Margaret Rice, deceased, late of Riverlea Nursing Home, River Terrace, Bundaberg in the State of Queensland, in solemn form of law;1.

Pursuant to s 6 of the Succession Act 1981 (Qld), probate of the testatrix’s said Will be granted to the applicant as the executor named therein;2.

The respondents’ costs of the proceeding, capped at $50,000, be assessed and paid out of the estate of the testatrix;3.

The applicant’s costs of the proceeding be paid out of the estate on the indemnity basis;4.

The applicant’s claims be otherwise dismissed;5.

The respondents’ counterclaims be dismissed.6.

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:	McKeown v Harris & Anor; In the Will of Patricia Margaret Rice [2018] QSC 87
PARTIES:	MARY CATHERINE MCKEOWN (Applicant) v TIMOTHY JAMES HARRIS (First Respondent) And JANELLE IRENE HARRIS (Second Respondent)
FILE NO/S:	S 593/2015
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Rockhampton
DELIVERED ON:	12 April 2018
DELIVERED AT:	Supreme Court Brisbane
HEARING DATE:	11 April 2018
JUDGE:	Crow J
ORDER:	Pursuant to s 6 of the Succession Act 1981 (Qld), the Court pronounces for the force and validity of the Will dated 31 May 2004 of Patricia Margaret Rice, deceased, late of Riverlea Nursing Home, River Terrace, Bundaberg in the State of Queensland, in solemn form of law;1. *Pursuant to s 6 of the Succession Act* 1981 (Qld), probate of the testatrix’s said Will be granted to the applicant as the executor named therein;2. The respondents’ costs of the proceeding, capped at $50,000, be assessed and paid out of the estate of the testatrix;3. The applicant’s costs of the proceeding be paid out of the estate on the indemnity basis;4. The applicant’s claims be otherwise dismissed;5. The respondents’ counterclaims be dismissed.**6.
CATCHWORDS:	SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – PROCEDURE – QUEENSLAND – COMPROMISE PROCEEDINGS – where the parties have reached a compromise on the matters in dispute – where the compromise was placed formally into a deed – whether there can be a grant ordered in solemn form by consent Succession Act 1981 (Qld), s 18 Dowling v St Vincent De Paul Society Inc [2003] VSC 454, cited Germanotta v Germanotta & Ors [2012] QSC 116, cited Giumelli v Giumelli (1999) 196 CLR 101, cited Hansen v Hansen [2013] WASC 268, cited Re Levy (deceased) (No 2) [1957] VR 662, cited Lando v Sutton [2011] QSC 339, cited Lindsay v McGrath [2016] 2 Qd R 160, cited Richardson v Lo Pilato (Liquidator); in the Matter of Trojan Hospitality (ACT) Pty Limited (in Liq) [2014] FCA 888, cited Sadleir v Kahler & Ors [2018] QSC 67, cited West v Smith [2018] WASC 12, cited Williams v Schwarzback (No 2) [2016] WASC 43, cited Wood & Anor v Trudinger; in the will of Alan Stewart Trudinger [2017] QSC 245, cited Vandeleur v Franich [1991] 1 Qd R 481, cited
COUNSEL:	J Otto for the applicant
SOLICITORS:	Payne Butler Lang Solicitors for the applicant Gleeson Lawyers for the respondents