Re Schubert (deceased) - [2025] QSC 193

SUPREME COURT OF QUEENSLAND

CITATION:

Re Schubert (deceased) [2025] QSC 193

PARTIES:

IN THE WILL OF BERNHARDT EDLEWYN SCHUBERT ALSO KNOWN AS BERNHARD EDLEWYN SCHUBERT FORMERLY KNOWN AS BERNARD EDELBERT SCHUBERT

(deceased)

MARTIN JOHN KURVINK

(first applicant)

AND

BERNARD NEIL SCHUBERT

(second applicant)

FILE NO:

BS 2661 of 2025

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

19 August 2025

DELIVERED AT:

Brisbane

HEARING DATE:

Application on the papers

JUDGE:

Davis J

ORDERS:

1.    That the grant of probate of the will issued by the Court to Martin John Kurvink and Gloria Loveday Myee Frewen Schubert in proceedings number BS 8931 of 2002 on 3 October 2002 be revoked pursuant to Uniform Civil Procedure Rules 1999 (Qld), r 642(1)(b).

2.    That letters of administration of the will of Bernhardt Edlewyn Schubert also known as Bernhard Edlewyn Schubert formerly known as Bernard Edlebert Schubert be granted to Bernard Neil Schubert subject to the formal requirements of the Registrar.

3.    That the applicants’ costs of and incidental to the application be paid from the estate of the deceased on the indemnity basis.

CATCHWORDS:
SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – LIMITED, SPECIAL AND CONDITIONAL GRANTS OF PROBATE AND ADMINISTRATION – where the deceased left a will – where the will nominated the deceased’s wife and an accountant as executors – where the executors administered the will – where the deceased’s wife died – where the accountant wishes to be removed as executor – where the only remaining necessary act to administer the will is to transfer some land to the deceased’s son – where the accountant and the deceased’s son apply for the revocation of probate to the accountant – where the deceased’s son applies for a Grant of Letters of Administration with the will – whether letters of administration ought to be granted to the deceased’s son

Uniform Civil Procedure Rules 1999 (Qld), r 489, r 494, r 495, r 603, r 642

Baldwin v Greenland [2005] QSC 386, cited

SOLICITORS:

North Coast Law for the applicants

This is an application brought for revocation of a grant of probate and the grant of letters of administration to a will where the estate is almost completely distributed.
Bernhardt Edlewyn Schubert also known as Bernhard Edlewyn Schubert formerly known as Bernard Edlebert Schubert, who I will, with respect refer to simply as “Bernhardt”[1] was married to Gloria Loveday Myee Frewen Schubert. By a prior relationship Bernhardt had a son, Bernard Neil Schubert. He also had a daughter, Glennis Dulcie Syddll.
[1]I will, for the sake of convenience and without intending any disrespect, refer to the persons by their Christian names.
On 22 December 1995, Bernhardt made what would be his last will.
By the will, Bernhardt:
(a)appointed Martin John Kurvink, the present first applicant, and Gloria as executors and trustees of his estate;
(b)left a life estate in parcels of land in Victoria to Gloria with…

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.

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Details

Case: [2025] QSC 193
Decision Date: 19 August 2025

CaseChat Overview and Summary

The case of Re Schubert (deceased) involved Martin Kurvink and Bernard Schubert, who were appointed as executors under the will of Bernhard Schubert. The dispute arose following the death of Gloria Schubert, one of the executors, and Bernard Schubert’s desire to be removed as an executor. The remaining task was to transfer some land in Victoria to the deceased's son, Bernard Schubert. Martin and Bernard Schubert applied for the revocation of the probate granted to Martin, while Bernard Schubert also applied for a Grant of Letters of Administration with the will annexed.

The primary legal issue before the court was whether the grant of probate should be revoked and whether Bernard Schubert should be granted letters of administration with the will annexed. The court had to consider the relevant provisions of the Uniform Civil Procedure Rules 1999 (Qld) and the established legal principles regarding the revocation of grants of probate and the granting of letters of administration.

The court first addressed the procedural aspect of the application, noting that Rule 489 of the Uniform Civil Procedure Rules 1999 (Qld) allowed for the application to be determined without an oral hearing, given that no party required a hearing and the application was straightforward. The court found that it was appropriate to proceed without an oral hearing, as the matter was not contentious and the facts were clear.

Regarding the substantive issue, the court considered Rule 642, which allows for the revocation of a grant if the personal representative wishes to retire. The court found that Martin had effectively retired from his role as executor. The court also examined Rule 603, which outlines the priority for applicants for letters of administration with the will. Bernard Schubert, as a beneficiary of the residue, had priority over his status as a specific legatee. The court concluded that Bernard Schubert should be granted letters of administration to complete the transfer of the Victorian properties.

The court ordered the revocation of the grant of probate to Martin Kurvink, the granting of letters of administration to Bernard Schubert, and that the applicants’ costs be paid from the estate on an indemnity basis. This decision ensures that Bernard Schubert can complete the administration of the estate as intended by the deceased.

Orders

Orders of the court

1. That the grant of probate of the will issued by the Court to Martin John Kurvink and Gloria Loveday Myee Frewen Schubert in proceedings number BS 8931 of 2002 on 3 October 2002 be revoked pursuant to Uniform Civil Procedure Rules 1999 (Qld), r 642(1)(b).

2. That letters of administration of the will of Bernhardt Edlewyn Schubert also known as Bernhard Edlewyn Schubert formerly known as Bernard Edlebert Schubert be granted to Bernard Neil Schubert subject to the formal requirements of the Registrar.

3. That the applicants’ costs of and incidental to the application be paid from the estate of the deceased on the indemnity basis.

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

Rule 489 of the Uniform Civil Procedure Rules 1999 (Qld) provides for applications to be determined without oral hearing. Rule 489 provides: “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)that jurisdiction is enlivened by a proposal by an applicant; and(c)the proposal must be accepted by the Court in the absence of any of the circumstances prescribed in rr 489(2)(a)-(d). Here, Martin and Bernard make the proposal that the application be decided without an oral hearing.[2][2]Uniform Civil Procedure Rules 1999, r 489(1). Further:(a)there are no respondents and in particular, there is no respondent requiring an oral hearing;[3](b)neither Martin nor Bernard has abandoned the request for a decision without an oral hearing;[4] and(c)the Chief Justice has not suspended the operation of r 489 by direction.[5][3]Uniform Civil Procedure Rules 1999, r 494.[4]Uniform Civil Procedure Rules 1999, r 495.[5]Uniform Civil Procedure Rules 1999, r 489(2)(d). Therefore, the only question is whether it is appropriate to proceed without an oral hearing.[6][6]Uniform Civil Procedure Rules 1999, r 489(2)(a). Here, the application is not contentious. The facts are clear. The relief sought is sensible and pragmatic and, for reasons which appear below, should be given. There is nothing to suggest that it is inappropriate to proceed by way of oral hearing and the application should proceed on that basis.Should the probate granted to Martin be revoked and letters of administration granted to Bernard? Rule 642 provides as follows:“642 Revocation of grants and limited grants (1) The court may, on application, revoke a grant or make a limited grant if— (a) it appears to the court that— (i) the personal representative is no longer capable of acting in the administration; or (ii) the personal representative can not be found; or (iii) the grant was made because of a mistake of fact or law; or (b) the personal representative wants to retire from the administration. (2) With the consent of the parties, the registrar may exercise the jurisdiction of the court under this rule. (3) If the court revokes a grant or replaces it with a limited grant, the personal representative must bring the original grant into the registry as soon as practicable after the order is made. (4) On the hearing of an application under this rule, the court may direct that the proceeding continue as if started by claim and give any directions it considers appropriate.”

Ratio Decidendi

Legal Principle Established

Rule 603 concerns the priority for applicants for letters of administration with the will. Rule 603(1) provides:“603 Priority for letters of administration with the will (1) The descending order of priority of persons to whom the court may grant letters of administration with the will is as follows— (a) a trustee of the residuary estate; (b) a life tenant of any part of the residuary estate; (c) a remainderman of any part of the residuary estate; (d) another residuary beneficiary; (e) a person otherwise entitled to all or part of the residuary estate, by full or partial intestacy; (f) a specific or pecuniary legatee; (g) a creditor or person who has acquired the entire beneficial interest under the will; (h) any one else the court may appoint.(2) The court may grant letters of administration with the will to any person, in priority to any person mentioned in subrule (1). (3) If 2 or more persons have the same priority, the order of priority must be decided according to which of them has the greater interest in the estate. (4) Each applicant must establish the person’s priority by providing evidence that each person higher in the order of priority is not entitled to priority because of death, incapacity or renunciation. (5) A document providing evidence for subrule (4) must be an exhibit to the affidavit in support of the application. (6) The applicant need not establish priority for a person equal to or lower than the applicant in the order of priority.” Gloria is deceased and all other beneficiaries named in the will have received their benefits. Bernard and Glennis, as beneficiaries of the residue,[7] have priority over Bernard as a specific legatee.[8] Rule 603 does not limit the Court’s jurisdiction to appoint the most appropriate administrator notwithstanding that person may have priority.[9] The only outstanding issue is the transfer of the Victorian properties to perfect the specific grant to Bernard. [7]Uniform Civil Procedure Rules 1999, r 603(1)(d).[8]Uniform Civil Procedure Rules 1999, r 603(1)(f).[9]Baldwin v Greenland [2005] QSC 386 at [22]. Bernard stands in priority. He has the only remaining interest in the partially administered estate. He should receive a grant of letters of administration so that he can perfect the gift of the land in Victoria to himself. Although an order for costs might not have any practical effect, Bernard should have an order for costs. Orders It is ordered: 1.That the grant of probate of the will issued by the Court to Martin John Kurvink and Gloria Loveday Myee Frewen Schubert in proceedings number BS 8931 of 2002 on 3 October 2002 be revoked pursuant to Uniform Civil Procedure Rules 1999 (Qld), r 642(1)(b).2.That letters of administration of the will of Bernhardt Edlewyn Schubert also known as Bernhard Edlewyn Schubert formerly known as Bernard Edlebert Schubert be granted to Bernard Neil Schubert subject to the formal requirements of the Registrar.3.That the applicants’ costs of and incidental to the application be paid from the estate of the deceased on the indemnity basis.

CITATION:	Re Schubert (deceased) [2025] QSC 193
PARTIES:	IN THE WILL OF BERNHARDT EDLEWYN SCHUBERT ALSO KNOWN AS BERNHARD EDLEWYN SCHUBERT FORMERLY KNOWN AS BERNARD EDELBERT SCHUBERT (deceased) MARTIN JOHN KURVINK (first applicant) AND BERNARD NEIL SCHUBERT (second applicant)
FILE NO:	BS 2661 of 2025
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	19 August 2025
DELIVERED AT:	Brisbane
HEARING DATE:	Application on the papers
JUDGE:	Davis J
ORDERS:	1. That the grant of probate of the will issued by the Court to Martin John Kurvink and Gloria Loveday Myee Frewen Schubert in proceedings number BS 8931 of 2002 on 3 October 2002 be revoked pursuant to *Uniform Civil Procedure Rules 1999* (Qld), r 642(1)(b). 2. That letters of administration of the will of Bernhardt Edlewyn Schubert also known as Bernhard Edlewyn Schubert formerly known as Bernard Edlebert Schubert be granted to Bernard Neil Schubert subject to the formal requirements of the Registrar. 3. That the applicants’ costs of and incidental to the application be paid from the estate of the deceased on the indemnity basis.
CATCHWORDS:	SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – LIMITED, SPECIAL AND CONDITIONAL GRANTS OF PROBATE AND ADMINISTRATION – where the deceased left a will – where the will nominated the deceased’s wife and an accountant as executors – where the executors administered the will – where the deceased’s wife died – where the accountant wishes to be removed as executor – where the only remaining necessary act to administer the will is to transfer some land to the deceased’s son – where the accountant and the deceased’s son apply for the revocation of probate to the accountant – where the deceased’s son applies for a Grant of Letters of Administration with the will – whether letters of administration ought to be granted to the deceased’s son Uniform Civil Procedure Rules 1999 (Qld), r 489, r 494, r 495, r 603, r 642 Baldwin v Greenland [2005] QSC 386, cited
SOLICITORS:	North Coast Law for the applicants