Re McNamara - [2021] QSC 148

SUPREME COURT OF QUEENSLAND

CITATION:

Re McNamara [2021] QSC 148

PARTIES:

EMA LOUISE MCNAMARA

(applicant)
v
EMA LOUISE MCNAMARA
As administrator of the estate of DAVID LAWRENCE MCNAMARA, deceased
(respondent)
v
MADELINE BROOKE MCNAMARA, DANIEL DAVID MCNAMARA AND ELLYSSA KATE MCNAMARA by her litigation guardian, SHARON MAY HILL

(intervenors)

FILE NO/S:

SC 200 of 2021

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:
Supreme Court at Cairns

DELIVERED ON:

21 May 2021

DELIVERED AT:

Cairns

HEARING DATE:

21 May 2021

JUDGE:

Henry J

ORDER:

1. The application be dismissed insofar as relief is sought under or in reliance upon s 18 of the Succession Act 1981.

2. Subject to any formal requirements of the registrar, there be a grant of letters of administration on intestacy to the applicant as administrator.

3. The applicant pay the parties’ costs of and incidental to the application to be assessed on the indemnity basis out of the estate of the late David Lawrence McNamara.

CATCHWORDS:

SUCCESSION – CONSTRUCTION AND EFFECT OF TESTEMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – ASCERTAINMENT OF TESTATORS INTENTION – GENERALLY – where the deceased died intestate – where the deceased had prepared a will with a solicitor but he had not executed it – whether the unexecuted will should be considered the will of the deceased by operation of s 18 Succession Act 1981 (Qld)

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF ADMINISTRATION GENERALLY – TO WHOM GRANTED AND WHEN NECESSARY GENERALLY – QUEENSLAND – where the deceased died intestate – where the deceased had prepared a will with a solicitor but he had not executed it – where the unexecuted will nominated the applicant as executor – whether there should be a grant of letters of administration on intestacy to the applicant as administrator

Succession Act 1981 (Qld), s 18

Hatsatouris v Hatsatouris [2001] NSWCA 408, followed
Lindsay v McGrath [2016] 2 Qd R 160, followed

Oreski v Ikac [2008] WASCA 220, cited

COUNSEL:
C J Ryall for the applicant
No appearance for the respondent

M A Jonsson QC for the intervenors

SOLICITORS:
O'Reilly Stevens Lawyers for the applicant
No appearance for the respondent

The Will and All for the intervenors

HENRY J: David McNamara died without a will. A will had been prepared for him by a solicitor, but he had not executed it. The unexecuted will nominated his wife, the applicant, as executor. She now seeks a declaration pursuant to s 18 Succession Act 1981 (Qld) that the unexecuted will is Mr McNamara’s will, and seeks a grant of probate to her. She alternatively seeks an order there be a grant of letters of administration on intestacy to her as administrator. The latter order should be made and the application otherwise dismissed insofar as it seeks to invoke s 18.

Section 18(1) provides the section applies to a document which purports to state the testamentary intentions of a deceased person and has not been executed under part…

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 McNamara

Details

AGLC: Re McNamara [2021] QSC 148
Case: [2021] QSC 148
Decision Date: 21 May 2021

CaseChat Overview and Summary

The case of Re McNamara involved an application for letters of administration in Queensland. The deceased, David Lawrence McNamara, had passed away intestate, having prepared a will with a solicitor but failing to execute it. The applicant, who had prepared the will, sought letters of administration on intestacy. The primary issue was whether the unexecuted will could be considered the will of the deceased under section 18 of the Succession Act 1981 (Qld), and if not, whether letters of administration should still be granted to the applicant.

The court needed to determine whether the unexecuted will should be considered the will of the deceased under section 18 of the Succession Act. This section allows for an unexecuted will to be admitted to probate if it appears to the court to be the deceased’s will and no other valid will is known to exist. The court also had to consider whether, in the absence of an executed will, the applicant was entitled to letters of administration on intestacy.

In deciding the matter, the court held that section 18 of the Succession Act did not apply to the unexecuted will, as it required the will to be valid and complete. The court concluded that the will was not valid as it had not been executed, and therefore, it could not be admitted to probate. However, the court granted letters of administration on intestacy to the applicant, as they were the person who had prepared the will and were suitable to administer the estate. The court dismissed the application for relief under section 18 of the Succession Act but ordered that letters of administration be granted to the applicant, subject to any formal requirements of the registrar.

The court’s final orders were that the application for relief under section 18 of the Succession Act be dismissed. However, letters of administration on intestacy were to be granted to the applicant as administrator, subject to any formal requirements of the registrar. The applicant was also ordered to pay the parties’ costs of and incidental to the application, to be assessed on the indemnity basis out of the estate of the deceased.

Orders

Orders of the court

1. The application be dismissed insofar as relief is sought under or in reliance upon s 18 of the Succession Act 1981.

2. Subject to any formal requirements of the registrar, there be a grant of letters of administration on intestacy to the applicant as administrator.

3. The applicant pay the parties’ costs of and incidental to the application to be assessed on the indemnity basis out of the estate of the late David Lawrence McNamara.

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 McNamara [2021] QSC 148
PARTIES:	EMA LOUISE MCNAMARA (applicant) v EMA LOUISE MCNAMARA As administrator of the estate of DAVID LAWRENCE MCNAMARA, deceased (respondent) v MADELINE BROOKE MCNAMARA, DANIEL DAVID MCNAMARA AND ELLYSSA KATE MCNAMARA by her litigation guardian, SHARON MAY HILL (intervenors)
FILE NO/S:	SC 200 of 2021
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	21 May 2021
DELIVERED AT:	Cairns
HEARING DATE:	21 May 2021
JUDGE:	Henry J
ORDER:	1. The application be dismissed insofar as relief is sought under or in reliance upon s 18 of the *Succession Act* 1981. 2. Subject to any formal requirements of the registrar, there be a grant of letters of administration on intestacy to the applicant as administrator. 3. The applicant pay the parties’ costs of and incidental to the application to be assessed on the indemnity basis out of the estate of the late David Lawrence McNamara.
CATCHWORDS:	SUCCESSION – CONSTRUCTION AND EFFECT OF TESTEMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – ASCERTAINMENT OF TESTATORS INTENTION – GENERALLY – where the deceased died intestate – where the deceased had prepared a will with a solicitor but he had not executed it – whether the unexecuted will should be considered the will of the deceased by operation of s 18 Succession Act 1981 (Qld) SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF ADMINISTRATION GENERALLY – TO WHOM GRANTED AND WHEN NECESSARY GENERALLY – QUEENSLAND – where the deceased died intestate – where the deceased had prepared a will with a solicitor but he had not executed it – where the unexecuted will nominated the applicant as executor – whether there should be a grant of letters of administration on intestacy to the applicant as administrator Succession Act 1981 (Qld), s 18 Hatsatouris v Hatsatouris [2001] NSWCA 408, followed Lindsay v McGrath [2016] 2 Qd R 160, followed Oreski v Ikac [2008] WASCA 220, cited
COUNSEL:	C J Ryall for the applicant No appearance for the respondent M A Jonsson QC for the intervenors
SOLICITORS:	O'Reilly Stevens Lawyers for the applicant No appearance for the respondent The Will and All for the intervenors