Re Allan (dec'd)
[2024] QSC 277
•12 November 2024
SUPREME COURT OF QUEENSLAND
CITATION:
Re Allan (dec’d) [2024] QSC 277
PARTIES:
IN THE ESTATE OF JOANNE MAREE ALLAN
(deceased)
MARK JAMES ALLAN
(applicant)
FILE NO:
7248 of 2020
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court of Brisbane
DELIVERED ON:
12 November 2024
DELIVERED AT:
Brisbane
HEARING DATE:
Application on the papers
JUDGE:
Davis J
ORDERS:
1. Subject to the formal requirements of the registrar, Mark James Allan be granted letters of administration in intestacy of the estate of Joanne Maree Allan, deceased.
2. The costs of and incidental to the application be paid out of the estate on an indemnity basis.
CATCHWORDS:
PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF ADMINISTRATION GENERALLY – TO WHOM GRANTED AND WHEN NECESSARY GENERALLY – where the deceased made a will in 1997 – where the deceased made a will in 2003 – where the 2003 will revoked the 1997 will – where the deceased mistakenly believed that the revocation of the 2003 will revived the 1997 will – where the deceased died intestate – where the deceased’s husband applied for letters of administration – whether letters of administration should be granted.
Uniform Civil Procedure Rules 1999 (Qld), r 489, r 610
Succession Act 1981 (Qld), s 6, s 17SOLICITORS:
Wheldon & Associates for the applicant
This is an application by Mark James Allan (Mark) for the grant of letters of administration of the estate of his wife, Joanne Maree Allan (Joanne), who died intestate on 5 November 2009.
Background
Mark and Joanne married on 19 September 1992 in Brisbane. They had two children.
On 17 October 1997, each of Joanne and Mark made wills (the 1997 wills). By the 1997 wills, each of Joanne and Mark left their entire estate to the other. Joanne provided:
“4.Should my said husband predecease me, THEN I APPOINT my said parents and my said husband’s parents to be the Joint guardians of my infant child or children.”
A similar provision was made in Mark’s 1997 will but providing for the contingency of Joanne predeceasing him.
The original of Joanne’s 1997 will cannot be located but a copy is in existence.
On 22 November 2003 each of Joanne and Mark signed new wills (the 2003 wills). The 2003 wills were in the same terms as the 1997 wills except that instead of nominating all four grandparents as guardians of the children it was only Mark’s parents who were nominated. The 1997 wills and the 2003 wills were prepared by solicitors. The 2003 wills were, as at July 2009, held by those solicitors.
In July 2009, some two months before Joanne died of metastatic cancer, she and Mark attended at the offices of the solicitors and recovered the 2003 wills.
Mark swears that he and Joanne then destroyed the 2003 wills with the intention of revoking them and thereby, in their minds, reinstating the 1997 wills.
In 2020, Mark sought letters of administration of a copy of Joanne’s 1997 will. That application came before Martin SJA[1].
[1]On the papers.
In refusing the application but adjourning it to a date to be fixed, his Honour:
(a)inferred that Joanne’s 2003 will would have contained a provision revoking all previous wills;
(b)held that upon execution of the 2003, will Joanne revoked her 1997 will;
(c)found that in July 2009, Joanne revoked her 2003 will by destroying it with the intention of revoking it;
(d)found that as a matter of law, the revocation of the 2003 will did not revive her 1997 will; and
(e)found none of the circumstances prescribed by s 17 of the Succession Act 1981 for revival of an earlier will that has been revoked are present.
Mark now accepts that Joanne died intestate and he seeks letters of administration in intestacy. He seeks to have that application decided on the papers without oral hearing.
Determination without oral hearing
Mark seeks to have the application determined without oral hearing. Rule 489 of the Uniform Civil Procedure Rules 1999 provides for such a procedure:
“489 Proposal for decision without oral hearing
(1) A party making an application, including an application in a proceeding, may propose in the application that it be decided without an oral hearing.
(2)If the applicant proposes the application be decided without an oral hearing, the court must decide the application without an oral hearing unless—
(a) under rule 491, the court considers it inappropriate to do so; or
(b) under rule 494, the respondent requires an oral hearing; or
(c) under rule 495, the applicant abandons the request for a decision without an oral hearing; or
(d) the Chief Justice or Chief Judge suspends the operation of this rule by direction.”
The structure of r 489 is that:
(a) jurisdiction to proceed without an oral hearing is granted;
(b) the jurisdiction is enlivened by a proposal by an applicant; and
(c) the proposal must be accepted in the absence of any of the circumstances prescribed in rr 489(2)(a)-(d).
None of the circumstances identified in rr 489(2)(c) and (d) arise. There is no respondent so r 489(2)(b) is of no relevance. The sole question is whether the court considers it inappropriate to determine the matter without oral hearing.
There are no facts in issue. The evidence of Mark is largely corroborated by Janice Thomas, a senior conveyancing clerk employed by the solicitors who prepared the 1997 and 2003 wills. She undertook a search of the safe custody book of the firm. The entry for the 1997 wills has been crossed out and words “new wills 2003” written next to the entry. There is also an entry for Joanne’s 2003 will. In the column in the book headed “Collected by” appear the words “Wills destroyed … Taken”.
There is no reason why not to deal with the application on the papers.
Priority
Rule 610 of the Uniform Civil Procedure Rules 1999 describes the priorities for persons to whom the court may grant letters of administration in intestacy. The highest priority is “the deceased’s surviving spouse”.[2]
[2]Uniform Civil Procedure Rules 1999, r 610(1)(a).
Mark is Joanne’s surviving spouse and therefore has priority. Whilst the court may grant letters of administration to any person regardless of priority,[3] no party seeking priority to him has applied for a grant.
[3]Succession Act 1981, s 6(3); and Uniform Civil Procedure Rules 1999, r 610(3).
Consideration
I am satisfied:
(a)Joanne is deceased;
(b)she died intestate, having revoked both her 1997 will and her 2003 will and she made no later will;
(c)at the time of her death Mark was her spouse; and
(d)Mark has first priority to a grant of letters of administration and no other party has applied.
Therefore, subject to the requirements of the registrar, letters of administration in intestacy of the estate of Joanne Maree Allan should be granted to Mark James Allan. The estate should bear the costs of the application on an indemnity basis.
Orders
It is ordered that:
1.Subject to the formal requirements of the registrar, Mark James Allan be granted letters of administration in intestacy of the estate of Joanne Maree Allan, deceased.
2.The costs of and incidental to the application be paid out of the estate on an indemnity basis.
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