Re Bennie

[2024] QSC 223

SUPREME COURT OF QUEENSLAND

CITATION:

Re Bennie [2024] QSC 223

PARTIES:

IN THE ESTATE OF DIANA ROSALIND BENNIE

(deceased)

JORDAN EDWARD ALLAN BENNIE
(applicant)

FILENO:

6092 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application on the papers

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVEREDON:

16 September 2024

DELIVEREDAT:

Brisbane

HEARINGDATE:

On the papers

JUDGE:

Sullivan J

ORDER:

1.   Subject to the formal requirements of the Registrar, a grant of administration on intestacy of the estate of Diana Rosalind Bennie, late of 2/145 Muir Street, Labrador, Queensland issue to JORDAN EDWARD ALLAN BENNIE.

2.   That the applicant’s costs of the application are to be paid from the estate on the indemnity basis.

CATCHWORDS:

SOLICITORS:

SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - JURISDICTION AND DISCRETION OF COURT - QUEENSLAND GRANTS OF PROBATE AND  LETTERS  OF  ADMINISTRATION  -  where  the

deceased died intestate - where the applicant has applied on the papers for letters of administration of the estate of the deceased

- where the applicant is the nephew of the deceased - where persons having priority to administration ahead of the applicant have renounced - whether the applicant should be granted administration on intestacy

Generations Law for the applicant

The Application

1. This is an application seeking a grant of letters of administration on intestacy in favour of the applicant, Jordan Edward Allan Bennie.

Background

1. Diana Rosalind Bennie (“the Deceased”), died intestate on 18 June 2023, aged 76 years.

2. The Deceased’s next of kin are her brother, John Edward Anthony Bennie (“John Bennie”) and her sister, Myriam Philippine Leonie Whitting (“Myriam Whitting”).

3. John Bennie and Myriam Whitting have both renounced their right to administer the Deceased’s estate.

4. John Bennie and Myriam Whitting are the Deceased’s only siblings (alive or deceased).

5. The Deceased’s father passed away on 2 July 1989, aged 83 years, and the Deceased’s mother passed away on 23 June 2004, aged 93 years.

6. While there is no direct evidence regarding the Deceased’s grandparents, given the ages of the Deceased’s parents when they passed away, it is safe to find that her grandparents are also deceased.

7. The Deceased left no surviving spouse and the applicant is not aware of the deceased ever having had children.

8. The Deceased has no known aunts or uncles (alive or deceased) and therefore no known first cousins.

9. The applicant is John Bennie’s son and the nephew of the Deceased.

10. The applicant filed the application for letters of administration on intestacy on 14 May 2024.

11. The notice of intention to apply for a grant was properly advertised in the Queensland Law Reporter on 15 September 2023.

12. No person has come forward expressing an interest in administering the estate as a result of the advertisement.

Application for letters of administration on intestacy

1. The order of priority of persons who may apply for letters of administration on intestacy is set out in r 610(1) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”).

2. Rule 610(3) of the UCPR, however, preserves the Court’s discretion to grant letters of administration to any person, in priority to any person mentioned in r 610(1).

Re Sellers (dec’d) [2024] QSC 119

1. In the recent case of Re Sellers (dec’d) [2024] QSC 119, the Court granted letters of administration on intestacy in the following circumstances:

   (a)the applicant was the nephew of the Deceased and therefore does not fall within the list of persons having priority in r 610(1)(a)-(i) of the UCPR;

   (b)there was no surviving spouse of the Deceased;

   (c)the persons known to the applicant with priority to apply under r 610(1) of the UCPR had either renounced their right to apply or passed away;

   (d)there was no direct evidence concerning the Deceased’s grandparents however the Deceased’s age made it unlikely they were still alive; and

   (e)there was no direct evidence as to whether the Deceased had any surviving uncles and aunts or first cousins.

2. In granting the application, Davis J stated:¹

   “While the evidence is wanting in relation to some of the categories of priority, the most proximate to the deceased either don’t exist, have died, or have renounced their right to apply for administration. Mr Armstrong’s application for letters of administration has been properly advertised and no one other than Mr Armstrong has shown an interest in administering the estate.”

3. The facts in this case are broadly similar to those in Re Sellers, in that:

   (a)the applicant is the nephew of the Deceased;

   (b)all known persons having a higher priority than the applicant pursuant to r 610(1) of the UCPR either predeceased the Deceased or have renounced their right to apply for a grant;

   (c)the application has been properly advertised; and

   (d)no person other than the applicant has shown an interest in administering the estate.

4. In the circumstances set out above, letters of administration on intestacy will, subject to the formal requirements of the Registrar, be granted to the applicant.

Costs

1. The applicant’s costs of the application are to be paid from the estate on the indemnity basis.

1. Re Sellers (dec’d) [2024] QSC 119 at [16].