Re McLennan

Case [2018] QSC 124

SUPREME COURT OF QUEENSLAND

CITATION:

Re McLennan [2018] QSC 124

PARTIES:

IN THE WILL OF LLOYD JOHN WILSON MCLENNAN (dec’d)

MARGARET ISOBEL SPEED

(applicant)

FILE NO/S:

No 4923 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

1 June 2018

DELIVERED AT:

Brisbane

HEARING DATE:

16 May 2018

JUDGE:

Davis J

ORDER:

1. Pursuant to section 6 of the Succession Act 1981 (Qld), Margaret Isobel Speed and David Lloyd McLennan be removed from the office of executor.

2. Pursuant to section 6 of the Succession Act 1981 (Qld), the Grant of Probate issued to Margaret Isobel Speed and David Lloyd McLennan be revoked.

3.    Michael Karl Klatt be appointed an Administrator with the Will of the estate of Lloyd John Wilson McLennan in place of the executors Margaret Isobel Speed and David Lloyd McLennan.

4.    Letters of Administration with the Will dated 2011 be granted to Michael Karl Klatt, subject to the formal requirements of the Registrar.

5.    Any requirement for advertising the intention of Michael Karl Klatt to obtain a grant of Letters of Administration with the Will be dispensed with.

6.    Michael Karl Klatt as Administrator with the Will receive no personal remuneration, but be entitled to engage his employers from time to time as his solicitors and that their fees be assessed by an independent cost assessor pursuant to the Supreme Court Scale, as varied from time to time, on an indemnity basis, those fees to be assessed at approximately two monthly intervals and on completion of the administration.

7. Pursuant to sections 82 and 90 of the Trusts Act 1973 (Qld), all property of the estate in the name of David Lloyd McLennan and Margaret Isobel Speed as personal representative vest in Michael Karl Klatt as Administrator with the Will.

8. Michael Karl Klatt as Administrator with the Will be registered as the proprietor of any real property of the deceased pursuant to section 114 of the Land Title Act 1994 (Qld).

9.    Liberty be granted to Michael Karl Klatt as Administrator with the Will to apply.

CATCHWORDS:

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – ALTERATION AND REVOCATION OF GRANTS – GENERALLY – where the two executors are the children of the deceased – where the applicant is one of the executors and applies to replace the executors with an administrator – where a beneficiary who is not an executor supports the application – where the application is opposed by the other executor – where there has not been misconduct or unfitness demonstrated – whether the grant of probate should be revoked and an administrator appointed

Succession Act 1981 (Qld) s 6, s 49

Uniform Civil Procedure Rules 1999 (Qld) r 642

Baldwin v Greenland [2007] 1 Qd R 117, followed
Budulica v Budulica [2017] QSC 60, cited
Chesney & Anor v Tognola & Anor [2011] QSC 340, cited
Gowans v Watkins (Unreported, Supreme Court of Victoria, Teague J, 21 February 1996), considered
Mataska v Browne [2013]…

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AGLC
Re McLennan [2018] QSC 124
Case
[2018] QSC 124
Decision Date

CaseChat Overview and Summary

Ms Speed applied to the Supreme Court of Queensland for orders revoking the grant of probate to herself and Mr David McLennan, and appointing Mr Klatt as the administrator of the estate. Mr David McLennan opposed the application, while Mr Peter McLennan supported it. The court was required to determine whether the grant of probate should be revoked and an administrator appointed, considering the suitability of Mr Klatt as an administrator if the executors were removed.

The court examined the provisions of the Succession Act 1981 (Qld) and found that the Will clearly favoured Mr David McLennan over Ms Speed and Mr Peter McLennan. The court also noted that the property "Eurombah East" was transferred to Mr David McLennan in 2013, which meant that his interest in the property did not fall to the estate upon Mr McLennan Senior's death. The court held that it was in the best interests of the estate for the executors to be removed and an administrator to be appointed. The court found that Mr Klatt was a suitable person to administer the estate and should be appointed as the administrator with the will.

The court made the following orders: Margaret Isobel Speed and David Lloyd McLennan were removed from the office of executor, the grant of probate issued to them was revoked, Michael Karl Klatt was appointed as the administrator with the will in place of the executors, and letters of administration with the will were granted to Mr Klatt. The court also granted liberty to Mr Klatt to apply for the vesting of property in his name as the administrator with the will and the registration of any real property of the deceased.

Orders

Orders of the court

1. Pursuant to section 6 of the Succession Act 1981 (Qld), Margaret Isobel Speed and David Lloyd McLennan be removed from the office of executor.

2. Pursuant to section 6 of the Succession Act 1981 (Qld), the Grant of Probate issued to Margaret Isobel Speed and David Lloyd McLennan be revoked.

3. Michael Karl Klatt be appointed an Administrator with the Will of the estate of Lloyd John Wilson McLennan in place of the executors Margaret Isobel Speed and David Lloyd McLennan.

4. Letters of Administration with the Will dated 2011 be granted to Michael Karl Klatt, subject to the formal requirements of the Registrar.

5. Any requirement for advertising the intention of Michael Karl Klatt to obtain a grant of Letters of Administration with the Will be dispensed with.

6. Michael Karl Klatt as Administrator with the Will receive no personal remuneration, but be entitled to engage his employers from time to time as his solicitors and that their fees be assessed by an independent cost assessor pursuant to the Supreme Court Scale, as varied from time to time, on an indemnity basis, those fees to be assessed at approximately two monthly intervals and on completion of the administration.

7. Pursuant to sections 82 and 90 of the Trusts Act 1973 (Qld), all property of the estate in the name of David Lloyd McLennan and Margaret Isobel Speed as personal representative vest in Michael Karl Klatt as Administrator with the Will.

8. Michael Karl Klatt as Administrator with the Will be registered as the proprietor of any real property of the deceased pursuant to section 114 of the Land Title Act 1994 (Qld).

9. Liberty be granted to Michael Karl Klatt as Administrator with the Will to apply.

Background

Background to the litigation

Ms Speed seeks orders revoking the grant of probate to her and Mr David McLennan,[1] the appointment of Michael Karl Klatt (Mr Klatt) as administrator of the estate, and consequential orders. Mr David McLennan opposes the application. Mr Peter McLennan supports it. It is common ground that if the result of the application is that the executors ought to be removed, then Mr Klatt is a suitable person to administrator the estate and should be appointed administrator.[1] Pursuant to Succession Act 1981 (Qld) s 6.Background The Will contains various bequests and some operate as alternatives to other bequests depending upon which beneficiaries survived Mr McLennan Senior. Each of Ms Speed, Mr David McLennan and Mr Peter McLennan survived Mr McLennan Senior but Mr McLennan’s wife, Olive Isabel McLennan (Mrs McLennan), predeceased him. The operative bequests then, according to the terms of the Will, are as follows:(i)Mr McLennan Senior’s interests in the property “Eurombah East” and the stock depastured on that property pass to Mr David McLennan.[2](ii)All shares held by Mr McLennan Senior and all dividends paid after his death pass to Ms Speed;[3](iii)Mr McLennan Senior’s interests in a property at Bonner Street, Taroom and the furniture and other contents therein pass to Ms Speed;[4](iv)Any debts owed to Mr McLennan Senior by Mr Peter McLennan or any entity to whom Mr Peter McLennan owes a corresponding debt are forgiven.[5](v)Stock depastured on a property described as “Richon” in Taroom pass to Mr Peter McLennan and Ms Speed in equal shares.[6](vi)The plant and equipment on the property “Eurombah East” pass to Mr David McLennan;[7](vii)The rest and residue passes to Mr David McLennan.[8][2] Clauses 3.2 and 3.6.5 of the Will.[3] Clause 3.4 of the Will.[4] Clause 3.6.1 of the Will.[5] Clause 3.6.2 of the Will.[6] Clause 3.6.3 of the Will.[7] Clause 3.6.4 of the Will.[8] Clause 3.6.6 of the Will. A condition of the bequest to Mr David McLennan of the stock on “Eurombah East” is that Mr David McLennan is to pay Ms Speed $100,000 by instalments over two years. The stock is charged with a debt in that sum owing by Mr David McLennan to Ms Speed. The debt arises upon acceptance by Mr David McLennan of the bequest of the stock.[9][9] Clause 3.6.5 of the Will. It can be seen that the Will favours Mr David McLennan over Mr Peter McLennan and Ms Speed. This is explained in the Will as follows:“4 Declaration regarding Peter John McLennan & Margaret Isobel Speed4.7 I declare that I have made less provision for my son Peter John McLennan and my daughter Margaret Isobel Speed than I have for my son David Lloyd McLennan not through any lack of any affection towards him or her but because I consider that I have made adequate provision for both Peter John McLennan and Margaret Isobel Speed during my lifetime.”[10][10] Emphasis in original. As the Will appoints the two executors jointly, the powers of the executors must be exercised by them jointly.[11][11] Succession Act 1981 (Qld) s 49(4).

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

It can be seen that the Will favours Mr David McLennan over Mr Peter McLennan and Ms Speed. This is explained in the Will as follows:“4 Declaration regarding Peter John McLennan & Margaret Isobel Speed4.7 I declare that I have made less provision for my son Peter John McLennan and my daughter Margaret Isobel Speed than I have for my son David Lloyd McLennan not through any lack of any affection towards him or her but because I consider that I have made adequate provision for both Peter John McLennan and Margaret Isobel Speed during my lifetime.”[10][10] Emphasis in original. As the Will appoints the two executors jointly, the powers of the executors must be exercised by them jointly.[11][11] Succession Act 1981 (Qld) s 49(4). Although it was the obvious intention of Mr McLennan Senior expressed in the Will that “Eurombah East” should pass to Mr David McLennan upon Mr McLennan Senior’s death, interests in that property were transferred to Mr David McLennan by transfers in 2011 and 2013. By transfer dated 10 October 2011 Mrs McLennan transferred a one-quarter interest in “Eurombah East” to Mr David McLennan. That left Mr McLennan Senior and Mr David McLennan as tenants in common. Later, in March 2013, “Eurombah East” was transferred by Mr McLennan Senior and Mr David McLennan to themselves as joint tenants. The effect of this was that Mr McLennan Senior and Mr David McLennan then held equal joint interests in the property and, importantly, the doctrine of survivorship would operate in favour of Mr David McLennan upon the death of Mr McLennan Senior. Upon Mr McLennan Senior’s death his interest in “Eurombah East” did not fall to his estate but passed to Mr David McLennan independently of the Will. The inter vivos transfer of the property to Mr McLennan Senior and Mr David McLennan as joint tenants in 2013 might be seen to be of little moment. The effect of the transfer was that upon Mr McLennan Senior’s death the property automatically passed to Mr David McLennan. That was clearly the intention of Mr McLennan Senior by the terms of the Will in any event. However, in June 2017, Mr Peter McLennan made application for family provision.[12] Ms Speed has joined in that application and seeks provision herself. But for the transfer of the property in 2013, Mr McLennan Senior’s interest in the property (as it then stood) would have fallen to the estate and would be available to make provision to Ms Speed and Mr David McLennan. [12] Pursuant to Part 4 of the Succession Act 1981 (Qld). In December 2016, Dr Vasuthan Sellathurai, a general practitioner with Taroom Medical Pty Ltd, which practice had treated Mr McLennan Senior, wrote to Creevey Russell, lawyers then acting on behalf of the two executors in these terms:“I refer to your letter making an enquiry regarding Mr McLennan[13] consulting a doctor at this practice to discuss his capacity prior to signing his will.Mr McLennan did not consult a doctor at this practice regarding his capacity.A search of his medical history reveals that he was assessed and diagnosed with dementia in August 2013 by a doctor who is no longer at this practice.”[14][13] Clearly a reference to Mr McLennan Senior.[14] Affidavit of Margaret Isobel Speed filed 9 April 2018, CFI 9, exhibit C (Ms Speed’s affidavit).