Re Kenneth William Stewart (deceased)
[2021] QSC 304
•26 November 2021
SUPREME COURT OF QUEENSLAND
CITATION:
Re Kenneth William Stewart (deceased) [2021] QSC 304
PARTIES:
DARYL EDWIN STEWART
(applicant)FILE NO/S:
BS 13049 of 2021
DIVISION:
Trial Division
PROCEEDING:
Application on the papers
ORIGINATING COURT:
Supreme Court of Queensland at Brisbane
DELIVERED ON:
On the papers (26 November 2021)
DELIVERED AT:
Brisbane
HEARING DATE:
On the papers
JUDGE:
Brown J
ORDER:
The order of the Court is that:
1. That the grant of Probate of the Will issued by the Court to Ruby Ellen Meredith be revoked pursuant to rule 642(1)(a)(i) of the Uniform Civil Procedure Rules 1999.
2. That Letters of Administration with the Will of the above deceased dated 9 November 2004 be granted to the applicant Daryl Edwin Stewart as administrator, subject to the formal requirements of the Registrar.
3. That the application be decided without oral hearing pursuant to rule 489 of the Uniform Civil Procedure Rules 1999.
4. That the applicant’s costs of and incidental to this application be paid from the estate of the deceased on an indemnity basis.
CATHWORDS:
SUCCESSION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – ALTERATION AND REVOCATION OF GRANTS – where the executor is no longer capable of acting as executor – where the personal representatives of the executor seek to retire from the administration – where the applicant applies for letters of administration
Uniform Civil Procedure Rules 1999 (Qld) rr 489, 603, 610, 642
SOLICITORS:
RobertsLaw for the applicant
An order is sought on the papers that the Court revoke the grant of probate of the Will of Kenneth William Stewart, issued by the Court to Ruby Meredith (“the Will”), pursuant to r 642(1)(a)(i) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”). A further order is sought that the letters of administration in respect of the Will of Kenneth William Stewart be granted to the applicant, Daryl Stewart.
Ms Meredith was made the subject of administration orders by the Queensland Civil and Administrative Tribunal (“QCAT”) on 19 May 2021. Margaret McAnally and Kevin Meredith were appointed as joint administrators for all financial matters.
Ms Meredith was the Executor appointed pursuant to the terms of the Will of Kenneth Stewart. The Public Trustee was named as the alternate executor.
The administrators of Ms Meredith, Kevin Meredith and Margaret McAnally have deposed to the fact that Ms Meredith is no longer capable of acting in the administration of the Will and has permanently moved into an aged care facility such that she no longer lives in the deceased’s residence at Morayfield. They have consented to the order revoking probate to Ms Meredith and seeking the appointment of Mr Daryl Stewart as administrator. The Public Trustee has also expressly renounced all rights and titles to administration of the Will of the estate of the deceased.
Pursuant to clause 6 of the Will, Ms Meredith was to reside in the deceased’s property at Morayfield together with all household furniture and household effects during her lifetime, and upon termination of that right, the will provides for it to be divided between the deceased’s five children, Daryl, Rod, Roy, Kerry, Sharon Young (now deceased) and the deceased’s friend, Ruby Ellen Meredith, formerly the Executor.
Clause 7 of the Will provides that the residue of the estate is to be divided in equal shares between the deceased’s children.
Prior to making the order in question, I retrieved the file referred to in the affidavit of Mr Daryl Stewart where probate was originally made, namely BS 5872/11, to confirm that probate was granted in respect of the Will of the deceased, and the terms of the Will.
It is plain that the personal representatives of Ms Meredith do not wish to discharge her obligations as executor under the Will, given their consent to the proposed order, nor does the Public Trustee, who is identified as the alternate executor.
Mr Daryl Stewart has equal standing priority of persons to whom the Court may grant letters of administration, to his siblings.[1] All of Mr Daryl Stewart’s siblings, (except for Ms Young who is deceased), have filed affidavits consenting to the terms of the orders sought.
[1]Rule 610(1)(b) Uniform Civil Procedure Rules 1999 (Qld).
In the circumstances, it is appropriate for the Court to revoke the grant of probate under rule 642(1)(b) of the UCPR.
As all of the living children of the deceased have consented to Mr Daryl Stewart being provided with the letters of administration, he has the highest priority and it is appropriate for the Court to grant him letters of administration under r 603 of the UCPR.
Given all relevant parties have consented to the orders sought to be made, other than the Public Trustee who has renounced all rights and titles to administration with the estate of the deceased, it is appropriate to make the present order on the papers under r 489 of the UCPR.
Conclusion
It is appropriate to make the order on the papers without an oral hearing and to make an order consistent with the draft provided, save for paragraph 2 of the order, which is unnecessary given the matter was referred to the Court for determination, rather than to the Registrar. The order is otherwise made in accordance with the draft. The costs order in respect of the applicant’s costs, being paid from the estate, is proper in the circumstances as set out above.
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