Re Riethmuller (deceased)
[2025] QSC 6
•17 January 2025
SUPREME COURT OF QUEENSLAND
CITATION:
Re Riethmuller (deceased) [2025] QSC 6
PARTIES:
IN THE WILL OF SIMON EDWARD RIETHMULLER (deceased)
NEVILLE JOHN POCOCK
(applicant)
FILE NO:
BS 12181 of 2024
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
17 January 2025
DELIVERED AT:
Brisbane
HEARING DATE:
Application on the papers
JUDGE:
Hindman J
ORDERS:
1. The application be granted without an oral hearing.
2. Neville John Pocock be appointed as the Administrator of the estate of Simon Edward Riethmuller (deceased).
3. Subject to the formal requirements of the Registrar, letters of administration with the will of the deceased be granted to Neville John Pocock.
4. Pursuant to ss. 82 and 90 of the Trusts Act 1973, all property of the deceased shall vest in Neville John Pocock as administrator of the estate and be deedm to have so vested on the date of the deceased’s death.
5. The costs of the application be paid out of the estate on the indemnity basis.
6. Neville John Pocock has liberty to apply.
CATCHWORDS:
SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – where the deceased made a valid will – where letters of administration are required in circumstances of no available named executor – whether letters of administration should be granted of the will
Uniform Civil Procedure Rules 1999 (Qld), rr 489, 603
Succession Act 1981 (Qld), s 6
Trusts Act 1973 (Qld), ss 82 and 90
SOLICITORS:
Groom & Lavers Lawyers, for the applicant
Neville John Pocock, the former attorney for Simon Edward Riethmuller, deceased, under an enduring power of attorney and the cousin of the deceased (the applicant) applies for letters of administration of the will of the deceased, the original of which has been produced.
The applicant seeks to have the application determined on the papers without oral hearing.
Background
The deceased was born in Toowoomba and died in Toowoomba at 55 years of age on 11 June 2024. He was unmarried and had no children. Both of his parents predeceased him.[1] He had no siblings.
[1][6(a) and (b)], affidavit of Pocock.
On 24 August 2001, the deceased made a will.
He made the executor and trustee of his will his father, and then if not his father his mother, and then if not his mother his two solicitors. The two solicitors have renounced.[2]
[2][6(c)], affidavit of Pocock.
He gave the whole of his estate to his father, and then if not his father his mother, and then if not his mother then on trust for the Queensland Cancer Fund.
The present situation therefore is there is no person appointed to administer the estate, and the whole of the estate is to go to the charity identified. Letters of administration are sought to allow the estate to be administered.
Formal requirements for the application for the grant of letters of administration have been attended to. No caveat has been filed.
Determination without oral hearing
The applicant seeks to have the application determined without oral hearing. Rule 489 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) provides for such a procedure:
489 Proposal for decision without oral hearing
(1) A party making an application, including an application in a proceeding, may propose in the application that it be decided without an oral hearing.
(2)If the applicant proposes the application be decided without an oral hearing, the court must decide the application without an oral hearing unless -
(a) under rule 491, the court considers it inappropriate to do so; or
(b) under rule 494, the respondent requires an oral hearing; or
(c) under rule 495, the applicant abandons the request for a decision without an oral hearing; or
(d) the Chief Justice or Chief Judge suspends the operation of this rule by direction.
The structure of r. 489 is that:
(a)jurisdiction to proceed without an oral hearing is granted;
(b)the jurisdiction is enlivened by a proposal by an applicant; and
(c)the proposal must be accepted in the absence of any of the circumstances prescribed in rr. 489(2)(a)-(d).
None of the circumstances identified in rr. 489(2)(c) and (d) arise. There is no respondent so r. 489(2)(b) is of no relevance. The sole question is whether the court considers it inappropriate to determine the matter without oral hearing.
As will become evident, the sole question for consideration is, in practical terms, whether it is appropriate to grant letters of administration to the applicant. The facts relevant to that consideration are deposed on oath. There is nothing to suggest that the application is factually contentious in any way. It is appropriate to proceed without oral hearing.
Any question of priority
Rule 603 UCPR identifies the descending order of priority of persons to whom the court may grant letters of administration with the will. By s. 6(3) of the Succession Act 1981 (Qld), letters of administration of the estate of a deceased person may be made to such person as the court thinks fit.
In the circumstances I have described above, there is no available person that stands in priority to the applicant (rule 603(1)(h)) other than the beneficiary (rule 603(1)(d)). The beneficiary supports the application.[3] And I do not consider that the administration of the estate would be better advanced by the appointment of any person other than the applicant.
[3][4] and exhibit “AJT2”, affidavit of Taylor.
Orders
It is ordered that:
1.The application be granted without an oral hearing.
2.Neville John Pocock be appointed as the Administrator of the estate of Simon Edward Riethmuller (deceased).
3.Subject to the formal requirements of the Registrar, letters of administration with the will of the deceased be granted to Neville John Pocock.
4.Pursuant to ss. 82 and 90 of the Trusts Act 1973 (Qld), all property of the deceased shall vest in Neville John Pocock as administrator of the estate and be deedm to have so vested on the date of the deceased’s death.
5.The costs of the application be paid out of the estate on the indemnity basis.
6.Neville John Pocock has liberty to apply.
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