R Saunders (dec’d)

[2023] QSC 64

SUPREME COURT OF QUEENSLAND

CITATION:

R Saunders (dec’d) [2023] QSC 64

PARTIES:

IN THE WILL OF ZUZANA SAUNDERS (DECEASED)

COLIN ALFRED WALKER

(applicant)

FILENO/S:

BS No 13429 of 2022

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVEREDON:

29 March 2023

DELIVEREDAT:

Brisbane

HEARINGDATE:

Application on the papers

JUDGE:

Davis J

ORDER:

1. Pursuant to r 489(1) of the Uniform Civil Procedure Rules 1999 (Qld) this application is to proceed without an oral hearing.

2.   This application be heard and determined without being served on any other party.

3.   Subject to the formal requirements of the Registrar, a grant of letters of administration with the will of Zuzana Saunders dated 9 October 2000 be granted to Colin Alfred Walker.

CATCHWORDS:

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – TO WHOM GRANTED AND WHEN NECESSARY GENERALLY – QUEENSLAND – where the

testator made a will – where the will nominated a solicitor as executor – where the default executor was described as a successor to the solicitor’s practice – where the solicitor retired from practice – where the solicitor renounced his right to probate – where the solicitor closed his practice – where there was no successor – where the beneficiaries renounced their right to apply for letters of administration – where the applicant was a friend of the testator – where no one had priority over the applicant – whether letters of administration ought to be granted to the applicant

Uniform Civil Procedure Rules 1999, r 489, s 603

SOLICITORS:

Baxters Solicitors for the applicant

1. The applicant applies for letters of administration of the will of Zuzana Saunders executed 9 October 2000 (the will).

1. Pursuant to r 489(1) of the Uniform Civil Procedure Rules 1999 (UCPR), the applicant seeks to have the application determined on written submissions without oral hearing.

1. Rule 489(2) of the UCPR provides that where an application is made for a decision without an oral hearing, the court must decide the application without oral hearing unless one of the circumstances in r 489(2)(a) or (b) or (c) or (d) is present. They are not and so I will decide the application without oral hearing.

Background

1. Ms Saunders was survived by her father, Milan Kristofovic, her mother, Bernardina Kristofovic and her brother, Milos Kristofovic. She had no spouse, no children and therefore no grandchildren.

1. The will appoints Jeremy James Worcester, a solicitor, as her executor and trustee. The will further provided that should Mr Worcester not survive Ms Saunders or not be available to act as executor, then “I appoint the principal or if more than one the senior partner of any firm that shall succeed him as the executor and trustee of this my will”.

1. The will provides that after payment of all debts and liabilities, Ms Saunders’ estate is left in equal shares to her parents, and if both parents should predecease Ms Saunders, then her estate passes to her brother, Milos.

1. Ms Saunders died on either 1 December 2021 or 2 December 2021. She was survived by both her parents and her brother.

1. Mr Worcester ceased practice as a solicitor on 30 June 2021 and there was no successor to his practice.

1. Mr Worcester renounced his right to probate in writing on 23 September 2022.

1. Rule 603(1) of the UCPR prescribes the priority in which persons may seek letters of administration. It provides:

“603 Priority for letters of administration with the will

(1)The descending order of priority of persons to whom the court may grant letters of administration with the will is as follows—

(a)a trustee of the residuary estate;

(b)a life tenant of any part of the residuary estate;

(c)a remainderman of any part of the residuary estate;

(d)another residuary beneficiary;

(e)a person otherwise entitled to all or part of the residuary estate, by full or partial intestacy;

(f)a specific or pecuniary legatee;

(g)a creditor or person who has acquired the entire beneficial interest under the will;

(h)any one else the court may appoint. …”

1. As already observed, Ms Saunders’ parents and brother are beneficiaries and therefore have priority. Each renounced a right to letters of administration of the will in writing on 27 September 2022.

1. The applicant met Ms Saunders in about December 2003 and commenced a romantic relationship which the applicant describes as “on again and off again”.

1. During their relationship, the applicant and Ms Saunders cohabitated for periods of several months on a number of occasions.

1. The applicant knows the property at Unit 10/45 Ventura Road, Mermaid Beach, which is owned by Ms Saunders. The applicant lives close to the Ventura Road property and has been collecting the mail.

1. The applicant has learnt that the property is subject to a mortgage. He is also aware that the property is in arrears of rates and body corporate levies and the property needs cleaning, repairs and maintenance.

1. The applicant made application for probate and complied with all advertising requirements but was requisitioned by the Registrar:

   “In reference to the abovementioned matter, I am unable to make the grant to COLIN ALFRED WALKER.

   It is not clear in any of the evidence filed as to what priority under 603 of the UCPR the applicant is entitled to apply as. This needs to be deposed to by the way of affidavit with any necessary evidence to allow a Registrar to make a grant. If the applicant are applying under 603(H) as this will need to be heard before a Judge.”

Should letters of administration be given to the applicant?

1. No person has priority over the applicant. The named executor, Mr Worcester, has renounced. There is no successor to his practice so there is no executor who can be identified from the terms of the will. The beneficiaries, being Ms Saunders’ parents and brother, have renounced a right to letters of administration. There is no other person who falls within the description of any of subparagraphs 603(1)(a)-(g) of the UCPR.

1. By r 603(1)(h), the court may grant letters of administration to anyone who is appropriate.

1. The three persons who have an interest in the estate, being Ms Saunders’ parents and brother, are all aware of the applicant’s application and support it.

1. The applicant is aware of the financial affairs of Ms Saunders and understands his obligations as administrator.

1. It is important that the will is administered promptly as the major asset, being the Ventura Road unit, is deteriorating.

1. In all the circumstances, it is appropriate to grant letters of administration to the applicant.

1. It is appropriate to dispose with service of the application. The beneficiaries are aware of the application. All appropriate advertising has been done.

1. The orders are:

   1.Pursuant to r 489(1) of the Uniform Civil Procedure Rules 1999 (Qld) this application is to proceed without an oral hearing.

   2.This application be heard and determined without being served on any other party.

   3.Subject to the formal requirements of the Registrar, a grant of letters of administration with the will of Zuzana Saunders dated 9 October 2000 be granted to Colin Alfred Walker.