Re Langston

[2024] QSC 221

SUPREME COURT OF QUEENSLAND

CITATION:

Re Langston [2024] QSC 221

PARTIES:

IN THE ESTATE OF SCOTT LANGSTON

(deceased)

ASHLEA JORDAN LANGSTON
(applicant)

FILENO:

11365 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 Scott Langston, late of Flat 6 Webster Court, Websters Way, Rayleigh Essex, United Kingdom, issue to ASHLEA JORDAN LANGSTON.

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 wife of the deceased - whether the applicant should be granted administration on intestacy

Resolve Estate Law for the applicant

The Application

1. This is an application on the papers brought by Ashlea Jordan Langston (“Ms Langston”) for letters of administration on intestacy in respect of the estate of Scott Langston (“the Deceased”).

Background

1. The Deceased died in the United Kingdom on 20 September 2022, intestate.

2. The Deceased was married to Ms Langston at the time of his death.

3. The Deceased did not have any children.

4. The Deceased did not leave an estate in Queensland, although he left an estate in Australia made up of superannuation held by the Australian Taxation Office (“the ATO”).

5. The ATO has advised Ms Langston’s solicitors that the superannuation held by the ATO will only be released to an administrator of the Deceased’s estate.

6. Ms Langston resides in Queensland and has engaged solicitors in Queensland to assist her with dealing with the ATO regarding the deceased’s superannuation balance.

Priority for Letters of Administration on Intestacy

1. Pursuant to r 610 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”), Ms Langston has priority for a grant of letters of administration on intestacy. That rule provides:

“610   Priority for letters of administration

(1)   The descending order of priority of persons to whom the court may grant letters of administration on intestacy is as follows—

(a)   the deceased’s surviving spouse;

(b)  the deceased’s children;

(c)   the deceased’s grandchildren or great-grandchildren;

(d)  the deceased’s parent or parents;

(e)   the deceased’s brothers and sisters;

(f)   the children of deceased brothers and sisters of the deceased;

(g)  the deceased’s grandparent or grandparents;

(h)  the deceased’s uncles and aunts;

(i)    the deceased’s first cousins;

(j)    anyone else the court may appoint…”

Letters of Administration when there is no estate in Queensland

1. Pursuant to s 6(2) of the Succession Act 1981 (Qld), the Court may, in its discretion, grant letters of administration of the estate of a deceased person notwithstanding that the deceased person left no estate in Queensland.

2. The circumstances in which it is appropriate to make such an order were discussed in

   Proud v Arkell [2019] NTSC 35. In that case, Grant CJ said:

“Only Queensland, the Australian Capital Territory and the Northern Territory make provision for a grant of probate or administration where there is no property of the estate within the jurisdiction.¹ Under each of those provisions the court must be satisfied that a grant of representation is necessary.² There would not appear to be any authority dealing specifically with the operation of those provisions. The Supreme Court of Queensland had a similar jurisdiction prior to the enactment of the Succession Act 1981 (Qld). The Manual of Queensland Succession Law contains the following statement concerning the scope of that jurisdiction:³

Although a very broad jurisdiction is conferred upon the Supreme Court of Queensland to grant and revoke probate and letters of administration, issues of comity arise where the deceased died domiciled in another State, particularly if he or she left no estate in Queensland. Then the court will refuse to make a grant unless there is a good reason for it do so, such as, for instance, that the estate has a right of action, pursuable in Queensland which may have the effect of generating an asset, in the form of a judgment, within the jurisdiction [Re Hall [1923] QWN 40, Goods of Wilson [1929] St R Qd 59, Re Bowes

[1963] QWN 35, Kerr v Palfrey [1970] VR 825].

The Queensland cases cited in that passage disclose a number of principles. First, where there are no assets within the jurisdiction a grant of probate or administration will only be made on proof of a sufficient reason.⁴ Secondly, sufficient reason may include that the applicant executor or administrator is domiciled in the jurisdiction, and is familiar with the estate of the deceased and his or her affairs so that instructions can more readily be given to solicitors in that jurisdiction.⁵ Thirdly, a grant will not be made where to do so would provide the applicant no benefit or assistance in the administration of the estate, or for the sole purpose of prosecuting claims to property in another jurisdiction.⁶”

1. In this case, there exists sufficient reasons to grant letters of administration on intestacy notwithstanding the deceased did not leave an estate in Queensland. They are as follows:

   (a)Ms Langston is domiciled in Queensland;

   (b)the ATO holds superannuation on behalf of the deceased;

¹Probate and Administration Act 1898 (NSW) s 40; Administration and Probate Act 1958 (Vic) s 6; Administration and Probate Act 1919 (SA), s 5; Administration Act 1903 (WA), s 6; Supreme Court Civil Procedure Act 1935 (Tas) s 5(5), as cited in Mackie, Principles of Australian Succession Law, 3^rd ed, LexisNexis Butterworths, Australia, 2017 at [13.2].

1. Succession Act 1981 (Qld), s 6(2); Administration and Probate Act 1929 (ACT) s 9; Administration and Probate Act (NT) s 14, as cited in Mackie, Principles of Australian Succession Law, 3^rd ed, LexisNexis Butterworths, Australia, 2017 at [13.2].

³Lee, Manual of Queensland Succession Law 3^rd ed, The Law Book Company Ltd, Australia, 1991 at [830].

1. Re Hall [1923] QWN 40. In that case, title to real property could not be transferred in accordance with the provisions of the Will unless probate of the Will was granted in Queensland.

2. Re Bowes [1963] QWN 35.

3. Goods of Wilson [1929] St R Qd 59.

(c)the ATO requires an administrator to be appointed before it will release the superannuation;

(d)the amount of superannuation held by the ATO is approximately $20,000; and

(e)Ms Langston is familiar with the deceased’s affairs.

Formal requirements

1. Rule 598(1) of the UCPR requires an applicant to give notice in the approved form of an intention to apply for “grant”. That notice was given by advertising in the Queensland Law Reporter on 19 July 2024.

2. The notice of intention to apply for a grant has been served on the Public Trustee more than seven days proper to the filing of the application as required by r 598(2) of the UCPR.

Conclusion

1. In the circumstances, it is appropriate to grant Ms Langston letters of administration on intestacy.

Costs

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