Re Kelly - [2022] QSC 117

SUPREME COURT OF QUEENSLAND

CITATION:

Re Kelly [2022] QSC 117

PARTIES:

JOHN ANTHONY GREENHALGH AND THERESE NATASJA KELLY

(applicants)

RE: IN THE WILL OF BERNARD JOHN KELLY (DECEASED)

FILE NO/S:

BS No 3780 of 2022

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

6 April 2022

DELIVERED AT:

Brisbane

HEARING DATE:

6 April 2022

JUDGE:

Williams J

ORDER:

1.    Pursuant to section 6(3) of the Succession Act 1981 (Qld), John Anthony Greenhalgh and Therese Natasja Kelly be granted letters of administration ad colligenda bona of the will of the above deceased dated 18 October 2021, pending a grant of probate of the will or further order of this Court, limited to preserving, operating and negotiating the restructure and sale of the deceased’s corporate and business interests referred to in paragraphs 13 to 17 of the affidavit of John Anthony Greenhalgh filed on 4 April 2022.

2.    The costs of and incidental to this application and order be assessed on an indemnity basis and paid out of the estate of the deceased.

3.    Liberty to apply.

CATCHWORDS:

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – LIMITED, SPECIAL AND CONDITIONAL GRANTS OF PROBATE AND ADMINISTRATION – GRANT OF LETTERS OF ADMINISTRATION AD COLLIGENDA BONA – where there are delays in obtaining the deceased’s death certificate – where there will be delays in obtaining probate of the deceased’s will – where an application is made for orders to enable the business affairs of the deceased to be protected – where there is a dispute in relation to the structure of the business – whether losses could result to the business and to the estate if steps are not promptly taken to deal with the dispute – whether letters of administration ad colligenda bona should be granted

Succession Act 1981 (Qld), s 6

In the matter of the will and estate of Joseph William Korp [2005] VSC 337
Re Cohen [1975] VR 187

Re Tratt [1980] VR 657

COUNSEL:

S M Gerber for the Applicant

SOLICITORS:

Greenhalgh Pickard for the Applicant

The applicants bring this application before the Court seeking orders for a grant of limited administration ad colligenda bona of the deceased’s will dated 18 October 2021, and a further order for costs of and incidental to this application and that the order be assessed on an indemnity basis to be paid out of the estate of the deceased. There is material before the Court that the deceased died on 20 March 2022. There is a delay due to the circumstances of the deceased’s death in obtaining a death certificate. There will also be delays following the receipt of the death certificate to enable probate to be obtained of the deceased’s will dated 18 October 2021. In these circumstances, the application is made for orders to enable the business affairs of the deceased to be protected.
Before the Court is an affidavit of John Greenhalgh outlining the deceased’s…

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 Kelly

Details

AGLC: Re Kelly [2022] QSC 117
Case: [2022] QSC 117
Decision Date: 6 April 2022

CaseChat Overview and Summary

This case involved an application for limited letters of administration ad colligenda bona to be granted to the applicants, John Anthony Greenhalgh and Therese Natasja Kelly, in relation to the estate of the deceased. The application was made due to delays in obtaining the deceased's death certificate and in obtaining probate of the deceased's will. The applicants sought the order to protect the business affairs of the deceased, as there was a dispute regarding the structure of the business and the potential for losses if steps were not promptly taken to address the dispute.

The court was required to determine whether it was appropriate to grant limited letters of administration ad colligenda bona to the applicants, considering the delays in obtaining the death certificate and the need to protect the business interests of the deceased. The applicants argued that the delay in obtaining the death certificate and the potential for losses if the business was not promptly addressed justified the grant of the letters of administration. The court considered the provisions of the Succession Act 1981 (Qld) and the circumstances of the case in reaching its decision.

The court granted the applicants limited letters of administration ad colligenda bona, with the authority to preserve, operate, and negotiate the restructure and sale of the deceased's corporate and business interests. The court found that the delay in obtaining the death certificate and the potential for losses to the business and estate if the dispute was not promptly addressed justified the grant of the letters of administration. The court also ordered that the costs of the application and the order be paid out of the estate of the deceased on an indemnity basis.

In summary, the court granted the applicants limited letters of administration ad colligenda bona to protect the business interests of the deceased, considering the delays in obtaining the death certificate and the potential for losses if the dispute was not promptly addressed. The court found that the circumstances of the case justified the grant of the letters of administration and ordered that the costs of the application and the order be paid out of the estate of the deceased.

Orders

Orders of the court

1. Pursuant to section 6(3) of the Succession Act 1981 (Qld), John Anthony Greenhalgh and Therese Natasja Kelly be granted letters of administration ad colligenda bona of the will of the above deceased dated 18 October 2021, pending a grant of probate of the will or further order of this Court, limited to preserving, operating and negotiating the restructure and sale of the deceased’s corporate and business interests referred to in paragraphs 13 to 17 of the affidavit of John Anthony Greenhalgh filed on 4 April 2022.

2. The costs of and incidental to this application and order be assessed on an indemnity basis and paid out of the estate of the deceased.

3. Liberty to apply.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Re Kelly [2022] QSC 117
PARTIES:	JOHN ANTHONY GREENHALGH AND THERESE NATASJA KELLY (applicants) RE: IN THE WILL OF BERNARD JOHN KELLY (DECEASED)
FILE NO/S:	BS No 3780 of 2022
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	6 April 2022
DELIVERED AT:	Brisbane
HEARING DATE:	6 April 2022
JUDGE:	Williams J
ORDER:	1. Pursuant to section 6(3) of the Succession Act 1981 (Qld), John Anthony Greenhalgh and Therese Natasja Kelly be granted letters of administration ad colligenda bona of the will of the above deceased dated 18 October 2021, pending a grant of probate of the will or further order of this Court, limited to preserving, operating and negotiating the restructure and sale of the deceased’s corporate and business interests referred to in paragraphs 13 to 17 of the affidavit of John Anthony Greenhalgh filed on 4 April 2022. 2. The costs of and incidental to this application and order be assessed on an indemnity basis and paid out of the estate of the deceased. 3. Liberty to apply.
CATCHWORDS:	SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – LIMITED, SPECIAL AND CONDITIONAL GRANTS OF PROBATE AND ADMINISTRATION – GRANT OF LETTERS OF ADMINISTRATION AD COLLIGENDA BONA – where there are delays in obtaining the deceased’s death certificate – where there will be delays in obtaining probate of the deceased’s will – where an application is made for orders to enable the business affairs of the deceased to be protected – where there is a dispute in relation to the structure of the business – whether losses could result to the business and to the estate if steps are not promptly taken to deal with the dispute – whether letters of administration ad colligenda bona should be granted Succession Act 1981 (Qld), s 6 In the matter of the will and estate of Joseph William Korp [2005] VSC 337 Re Cohen [1975] VR 187 Re Tratt [1980] VR 657
COUNSEL:	S M Gerber for the Applicant
SOLICITORS:	Greenhalgh Pickard for the Applicant