Re Franks - [2021] QSC 134

SUPREME COURT OF QUEENSLAND

CITATION:

Re Franks [2021] QSC 134

PARTIES:

JENNIFER EILEEN HUNTER

(Applicant)

v
PETER JOHN FRANKS

(Respondent)

FILE NO/S:

BS 3470 of 2021

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 June 2021

DELIVERED AT:

Brisbane

HEARING DATE:

26 May 2021

JUDGE:

Jackson J

ORDER:

1.    The applicant and the respondent are removed as executors of the will of William Harry Franks deceased.

2.    Subject to the formal requirements of the Registrar, a grant of letters of administration with the will dated 29 January 2018 issue to Renee Anne Bennett, as administrator.

3. Pursuant to r 638(5) of the Uniform Civil Procedure Rules 1999 (Qld), the remuneration of the administrator and her firm, Wilson/Ryan/Grose Lawyers is fixed, such remuneration to be assessed by an independent costs assessor pursuant to the Supreme Court Scale as varied from time to time on the indemnity basis with the fees to be assessed at approximatively two monthly intervals and upon the completion of the administration or the appointment.

4.    All property of the deceased vest in the administrator as administrator of the estate and be deemed to have so vested on the date of the deceased’s death.

5. Renee Anne Bennett as administrator be registered as proprietor of any real property of the deceased pursuant to s 114 of the Land Title Act 1994 (Qld).

6.    All documents in the possession or control of the applicant and the respondent relevant to the estate or any issue remaining outstanding in respect of the estate shall be delivered to the administrator within fourteen (14) days of this order.

7.    The administrator is directed and authorised to sell any or all assets in any order as she deems appropriate and necessary to complete the administration of the estate and to pay estate liabilities.

8.    The administrator has liberty to apply for directions concerning the administration of the estate.

9.    The applicant’s costs of the proceeding be paid from the estate on the indemnity basis.

CATCHWORDS:

SUCCESSION – PERSONAL REPRESENTATIVES – DISPUTES BETWEEN PERSONAL REPRESENTATIVES – where William Harry Franks died on 14 July 2020 and apparently left a last will dated 29 January 2018 – where the will appointed two of the testator’s children, being the applicant and the respondent, and the testator’s sister, Patricia Mary Cook, as executors – where Ms Cook renounced her role as executor on 17 February 2021 – where the executors have been unable to agree on the administration of the estate under the will to date – where the solicitors engaged to progress the administration were unable to obtain joint instructions from the executors – where there has been no agreement as to how to fund the expenses of the estate, including the defence of the application brought by a beneficiary for further provision from the estate – whether the executors should be replaced by an independent administrator

Succession Act 1981 (Qld), s 6

Baldwin v Greenland [2007] 1 Qd R 117,…

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.

Continue reading Re Franks

Details

AGLC: Re Franks [2021] QSC 134
Case: [2021] QSC 134
Decision Date: 10 June 2021

CaseChat Overview and Summary

The matter before the court involved the estate of William Harry Franks, who passed away on 14 July 2020. Franks had left a will dated 29 January 2018, appointing two of his children and his sister, Patricia Mary Cook, as executors. Patricia Mary Cook renounced her role on 17 February 2021, but the remaining executors have been unable to agree on the administration of the estate. The court was asked to decide whether the executors should be replaced by an independent administrator due to their inability to agree on the estate's administration.

The primary legal issue before the court was whether the executors should be replaced by an independent administrator because they could not agree on the administration of the estate. The court needed to determine if there were sufficient grounds to remove the executors and appoint an independent administrator to ensure the estate was properly managed and liabilities were paid. The court considered the terms of the will, the renunciation by one of the executors, and the ongoing disputes between the remaining executors.

In reaching its decision, the court found that the executors' inability to agree on the administration of the estate and their failure to provide joint instructions to the solicitors engaged to progress the administration justified the removal of the executors. The court was satisfied that appointing an independent administrator was in the best interest of the estate and its beneficiaries. The court also considered the need for the estate to be funded to cover expenses, including the defence of an application by a beneficiary for further provision from the estate.

The court ordered that the applicant and the respondent be removed as executors and that a grant of letters of administration with the will dated 29 January 2018 issue to Renee Anne Bennett, as administrator. The court fixed the remuneration of the administrator and her firm, Wilson/Ryan/Grose Lawyers, and directed that all property of the deceased vest in the administrator. The administrator was also authorized to sell any assets to complete the administration of the estate and pay liabilities. The court ordered that all documents in the possession or control of the applicant and the respondent relevant to the estate be delivered to the administrator within fourteen days of the order.

Orders

Orders of the court

1. The applicant and the respondent are removed as executors of the will of William Harry Franks deceased.

2. Subject to the formal requirements of the Registrar, a grant of letters of administration with the will dated 29 January 2018 issue to Renee Anne Bennett, as administrator.

3. Pursuant to r 638(5) of the Uniform Civil Procedure Rules 1999 (Qld), the remuneration of the administrator and her firm, Wilson/Ryan/Grose Lawyers is fixed, such remuneration to be assessed by an independent costs assessor pursuant to the Supreme Court Scale as varied from time to time on the indemnity basis with the fees to be assessed at approximatively two monthly intervals and upon the completion of the administration or the appointment.

4. All property of the deceased vest in the administrator as administrator of the estate and be deemed to have so vested on the date of the deceased’s death.

5. Renee Anne Bennett as administrator be registered as proprietor of any real property of the deceased pursuant to s 114 of the Land Title Act 1994 (Qld).

6. All documents in the possession or control of the applicant and the respondent relevant to the estate or any issue remaining outstanding in respect of the estate shall be delivered to the administrator within fourteen (14) days of this order.

7. The administrator is directed and authorised to sell any or all assets in any order as she deems appropriate and necessary to complete the administration of the estate and to pay estate liabilities.

8. The administrator has liberty to apply for directions concerning the administration of the estate.

9. The applicant’s costs of the proceeding be paid from the estate on the indemnity basis.

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:	Re Franks [2021] QSC 134
PARTIES:	JENNIFER EILEEN HUNTER (Applicant) v PETER JOHN FRANKS (Respondent)
FILE NO/S:	BS 3470 of 2021
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	10 June 2021
DELIVERED AT:	Brisbane
HEARING DATE:	26 May 2021
JUDGE:	Jackson J
ORDER:	1. The applicant and the respondent are removed as executors of the will of William Harry Franks deceased. 2. Subject to the formal requirements of the Registrar, a grant of letters of administration with the will dated 29 January 2018 issue to Renee Anne Bennett, as administrator. 3. Pursuant to r 638(5) of the *Uniform Civil Procedure Rules* 1999 (Qld), the remuneration of the administrator and her firm, Wilson/Ryan/Grose Lawyers is fixed, such remuneration to be assessed by an independent costs assessor pursuant to the Supreme Court Scale as varied from time to time on the indemnity basis with the fees to be assessed at approximatively two monthly intervals and upon the completion of the administration or the appointment. 4. All property of the deceased vest in the administrator as administrator of the estate and be deemed to have so vested on the date of the deceased’s death. 5. Renee Anne Bennett as administrator be registered as proprietor of any real property of the deceased pursuant to s 114 of the *Land Title Act* 1994 (Qld). 6. All documents in the possession or control of the applicant and the respondent relevant to the estate or any issue remaining outstanding in respect of the estate shall be delivered to the administrator within fourteen (14) days of this order. 7. The administrator is directed and authorised to sell any or all assets in any order as she deems appropriate and necessary to complete the administration of the estate and to pay estate liabilities. 8. The administrator has liberty to apply for directions concerning the administration of the estate. 9. The applicant’s costs of the proceeding be paid from the estate on the indemnity basis.
CATCHWORDS:	SUCCESSION – PERSONAL REPRESENTATIVES – DISPUTES BETWEEN PERSONAL REPRESENTATIVES – where William Harry Franks died on 14 July 2020 and apparently left a last will dated 29 January 2018 – where the will appointed two of the testator’s children, being the applicant and the respondent, and the testator’s sister, Patricia Mary Cook, as executors – where Ms Cook renounced her role as executor on 17 February 2021 – where the executors have been unable to agree on the administration of the estate under the will to date – where the solicitors engaged to progress the administration were unable to obtain joint instructions from the executors – where there has been no agreement as to how to fund the expenses of the estate, including the defence of the application brought by a beneficiary for further provision from the estate – whether the executors should be replaced by an independent administrator Succession Act 1981 (Qld), s 6 Baldwin v Greenland [2007] 1 Qd R 117,…