Re Smadja (dec'd)

Case [2024] QSC 273

SUPREME COURT OF QUEENSLAND

CITATION:

Re Smadja (dec’d) [2024] QSC 273

PARTIES:

IN THE WILL OF ODILE MARIE EVELYNE SMADJA (deceased)

JOHN KEES DE GROOT

(applicant)

FILE NO:

14247 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

7 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

Application on the papers

JUDGE:

Davis J

ORDER:

1.    The application be granted without an oral hearing.

2.    Subject to the formal requirements of the Registrar, letters of administration of the will of Odile Marie Evelyne Smadja dated 9 March 2014 and codicil dated 14 March 2014, as contained in a copy thereof, be granted to John Kees de Groot for the use and benefit of Yasmina Slimani and until Yasmina Slimani shall apply for a grant, limited until the original will and codicil or more authenticated evidence of the will and codicil be brought into and left in the Registry of this court.

3.    The costs of the application be borne by the estate.

CATCHWORDS:

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – LIMITED, SPECIAL AND CONDITIONAL GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – where the deceased made a valid will and codicil in France – where, by the laws of France, the will and codicil must be retained by the lawyer with whom it was deposited – where the will and codicil cannot be produced to a court in Queensland – where the deceased’s estate includes assets in Queensland – where letters of administration are required – whether letters of administration should be granted of a copy of the will and codicil

Uniform Civil Procedure Rules 1999 (Qld), r 489

Succession Act 1981 (Qld), s 6, s 33T

Cahill v Rhodes [2002] NSWSC 561, cited
Curley v Duff (1985) 2 NSWLR 716, cited
Frizzo v Frizzo [2011] QSC 107, considered
In the will of Dianne Margaret Cardie [2013] QSC 265, cited
In the Will of Leonie Lyle Warren deceased [2014] QSC 101, cited
Lemon v Lemon [2014] QSC 123, cited
McKelvey v Meagher (1906) 4 CLR 265; [1906] HCA 56, cited
Price v Tickle [2013] 1 Qd R 319; [2011] QSC 206, cited
Re Clayton (dec'd) [1957] QWN 35, cited

Re Hay (dec’d) [2023] QSC 146, cited

SOLICITORS:

de Groots Wills and Estate Lawyers for the applicant

  1. John Kees de Groot, solicitor (the applicant) applies for letters of administration of the will and codicil of Odile Marie Evelyne Smadja but cannot produce the original of those testamentary documents.  He seeks letters of administration based on copies of the will and the codicil.

  2. The applicant seeks to have the application determined on the papers without oral hearing.

    Background

  3. The deceased was born on 11 September 1959 in Paris.  She spent her entire life domiciled in France and died in Paris on 21 April 2022.

  4. On 9 March 2014, the deceased made a will in these terms:

    “This is…

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AGLC
Re Smadja (dec'd) [2024] QSC 273
Case
[2024] QSC 273
Decision Date

CaseChat Overview and Summary

The case of Re Smadja (deceased) involved a French national who had made a valid will and codicil in France and died intestate in Queensland. The applicant, who was the attorney of the residuary beneficiary of the estate, sought a grant of letters of administration without an oral hearing and with a copy of the will and codicil. The deceased's estate included assets in Queensland, and the will and codicil could not be produced to the court due to the laws of France. The court had to decide whether it was appropriate to grant letters of administration without production of the original will and codicil. The court considered that the applicant was the attorney of the residuary beneficiary of the estate and that the estate was being administered by the residuary beneficiary in France. The court noted that even if there were other claims to administration, it was difficult to see how the administration of the estate would be advanced by the appointment of any person other than the residuary beneficiary or her representative.

The court then considered whether it was appropriate to grant letters of administration without production of the original will and codicil. The Succession Act grants jurisdiction to the Court over matters of succession, but there is no provision expressly empowering the Court to grant probate or letters of administration to a copy of a will or codicil. However, the court has jurisdiction to make letters of administration of a copy of a testamentary instrument. The power is sourced from the common law. The court noted that whether or not the Court grants letters of administration of a copy of a testamentary instrument is a matter of the exercise of discretion. The court considered the five matters that must be established for a successful application for the admission to probate of a copy will, as established in Frizzo v Frizzo. The court found that the existence and location of the will were known, and that the will and codicil were in the possession of the lawyer who had deposited them. The terms of both documents were proved, and there was no doubt that the will and codicil were the last testamentary instruments made by the deceased, and that there was no revocation.

The court granted the application without an oral hearing and granted letters of administration of the will of Odile Marie Evelyne Smadja dated 9 March 2014 and codicil dated 14 March 2014, as contained in a copy thereof, to John Kees de Groot for the use and benefit of Yasmina Slimani and until Yasmina Slimani shall apply for a grant, limited until the original will and codicil or more authenticated evidence of the will and codicil be brought into and left in the Registry of this court. The costs of the application were borne by the estate.

Orders

Orders of the court

1. The application be granted without an oral hearing.

2. Subject to the formal requirements of the Registrar, letters of administration of the will of Odile Marie Evelyne Smadja dated 9 March 2014 and codicil dated 14 March 2014, as contained in a copy thereof, be granted to John Kees de Groot for the use and benefit of Yasmina Slimani and until Yasmina Slimani shall apply for a grant, limited until the original will and codicil or more authenticated evidence of the will and codicil be brought into and left in the Registry of this court.

3. The costs of the application be borne by the estate.

Background

Background to the litigation

The applicant seeks to have the application determined on the papers without oral hearing.Background The deceased was born on 11 September 1959 in Paris. She spent her entire life domiciled in France and died in Paris on 21 April 2022. On 9 March 2014, the deceased made a will in these terms:“This is my WillI, the undersigned Odile SMADJA, born in Paris on 11 September 1959, residing at 26 rue du Fer à Moulin, 75005, France.I designate as my universal legatee Mrs Yasmina SLIMANI born on 21 June 1957 in Marseille domiciled in Paris, 70 Bd de l’Hôpital, 75013, France. She will therefore receive all my assets, except for the following bequest:I bequeath to my mother, Mrs Bernadette LAMBERT, residing in Nice, my share in the flat she currently occupies, 14 rue Frédéric Passy, ‘Palais Ariane’ 06000 Nice, France of which I am the bare owner.In the event that my mother predeceases me, I bequeath my entire share in this same flat to my niece, Julie SMADJA, born on 19 January 1988, and in the event of my niece predeceasing me, to her brothers Fabien and Emmanuel SMADJA.Done in Paris on 9 March 2014.(Signature)” A codicil was made on 14 March 2014 in these terms:“Codicil of my Will of 9 March 2014I, the undersigned Odile SMADJA, born on 11 September 1959 in Paris 12th, bequeath to Mr Medi Habibes, born on 7 April 1974 in Marseille, 1 share of my company ECOSOFT SARL, and failing this to Ms Fatima Habibes, born on 10 March 1952 in Marseille.Done in Paris on 14 March 2014(signature)” The effect of the will and codicil are:(a) the deceased’s interest in the flat which her mother occupies is left to her mother;(b) the deceased’s share in a company, Ecosoft Sarl, is left to Mr Habibes; and(c) the residue falls to Ms Slimani.[1][1]There are default beneficiaries in the event of the death of the named beneficiaries. The deceased held a bank account in Queensland with the Bank of Queensland and that account has a credit balance. Both the will and the codicil were written in the French language but have been translated to English by Eric Mignot Bonnefous, an official translator who is an officer of the Pau Court of Appeal. Both the will and the codicil were deposited with Caroline Deneuville, a Notaire (solicitor) practising in the fields of family law and private estate law in Paris. France is a civil law jurisdiction not a common law jurisdiction. The administration of deceased estates is governed by the Civil Code of France. Ms Deneuville has been practising in the fields of family law and private estate law in France for 42 years. She swears in her affidavit that she is “fully acquainted with the law of France relating to wills and succession to property”. I accept her as an expert in the law of France concerning private estate law.[2][2]McKelvey v Meagher (1906) 4 CLR 265 at 284. Ms Deneuville explains in her affidavit, and I accept, that there is a procedure which must be undertaken by a lawyer in a deceased estate being administered in France. This involves the preparation of a deed which attaches the will and codicil which is then retained by the lawyer. A certified copy of that first deed and the will and codicil is then sent to the French Court which attests to the receipt of the will and codicil. There is then publication of the proceedings in the Legal Journal and the “Bulletin Officiel”. If after publication there is no contest to the will and codicil within a prescribed period, the lawyer makes a second deed attesting to the steps that have been taken.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The applicant seeks to have the application determined without oral hearing. Rule 489 of the Uniform Civil Procedure Rules 1999 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 without production of the original will and codicil. The facts relevant to that consideration are deposed on oath by a lawyer in France, and by the applicant who is a lawyer in practice in Brisbane. There is nothing to suggest that the application is factually contentious in any way. It is appropriate to proceed without oral hearing.Any questions of priority? As already observed, the applicant is the attorney of the residuary beneficiary of the estate. By the laws of France, it is the residuary beneficiary who prima facie has a right to administration. The estate is being administered by the residuary beneficiary in France. By s 6(3) of the Succession Act 1981, letters of administration of the estate of a deceased person may be made to such person as the court thinks fit. The deceased’s mother may perhaps have some claim to letters of administration. There is no evidence that I can see as to whether she is alive. The material does not identify any other relatives, and the deceased never married and has no issue. Even if there were other claims to administration, it is difficult to see how the administration of the estate would be advanced by the appointment of any person other than Ms Slimani or her representative, given that Ms Slimani is administering the estate in France.Should a copy of the will and codicil be the subject of a grant of letters of administration? The Succession Act grants jurisdiction to the Court over matters of succession[4] but there is no provision expressly empowering the Court to grant probate or letters of administration to a copy of a will or codicil.[5] There is though no doubt that the Court has jurisdiction to make letters of administration of a copy of a testamentary instrument.[6] The power is sourced from the common law.[7][4]Succession Act 1981, s 6.[5]In the will of Dianne Margaret Cardie [2013] QSC 265 at [16]-[19].[6]Re Clayton (dec’d) [1957] QWN 35; and In the Will of Leonie Lyle Warren deceased [2014] QSC 101.[7]In the will of Dianne Margaret Cardie [2013] QSC 265 at [16]-[19].

Ratio Decidendi

Legal Principle Established

Even if there were other claims to administration, it is difficult to see how the administration of the estate would be advanced by the appointment of any person other than Ms Slimani or her representative, given that Ms Slimani is administering the estate in France.Should a copy of the will and codicil be the subject of a grant of letters of administration? The Succession Act grants jurisdiction to the Court over matters of succession[4] but there is no provision expressly empowering the Court to grant probate or letters of administration to a copy of a will or codicil.[5] There is though no doubt that the Court has jurisdiction to make letters of administration of a copy of a testamentary instrument.[6] The power is sourced from the common law.[7][4]Succession Act 1981, s 6.[5]In the will of Dianne Margaret Cardie [2013] QSC 265 at [16]-[19].[6]Re Clayton (dec’d) [1957] QWN 35; and In the Will of Leonie Lyle Warren deceased [2014] QSC 101.[7]In the will of Dianne Margaret Cardie [2013] QSC 265 at [16]-[19]. Whether or not the Court grants letters of administration of a copy of a testamentary instrument is a matter of the exercise of discretion. In Frizzo v Frizzo,[8] Applegarth J followed Cahill v Rhodes[9] and held that five matters must be established for a successful application for the admission to probate of a copy will.[10] These are:(a) there was actually a will purporting to embody the testamentary intentions of a deceased person (factor 1);(b) that will revoked all previous wills (factor 2);(c) the applicant overcomes the presumption[11] that if the will cannot be produced to the Court, it was destroyed by the testator with the intention of revoking it (factor 3);(d) there is evidence of the terms of the will (factor 4); and(e) the will was duly executed or that the deceased person intended the document to constitute his or her will (factor 5).[12][8][2011] QSC 107.[9][2002] NSWSC 561.[10] Frizzo v Frizzo [2011] QSC 107 at [161]. See also In the Will of Leonie Lyle Warren deceased [2014]QSC 101 at [8].[11]Allan v Morrison [1900] AC 604; and In the Will of Leonie Lyle Warren deceased [2014] QSC 101 at [11].[12]At [161], followed in Re Hay (dec’d) [2023] QSC 146 at [26], In the Will of Leonie Lyle Warren deceased [2014] QSC 101 at [8]; Price v Tickle [2013] 1 Qd R 319; Cahill v Rhodes [2002] NSWSC 561, citing Curley v Duff (1985) 2 NSWLR 716; approved by de Jersey CJ in Will of Dianne Margaret Cardi [2013] QSC 265; and Alan Wilson J in Lemon v Lemon [2014] QSC 123. The principles in Frizzo are relied upon by the applicant. However, in Frizzo, Applegarth J was considering the exercise of discretion to grant letters of administration to a copy will where the original will was lost. That, in my mind, raises different considerations to the present case. Here, there is no doubt that there is a valid duly executed will and codicil. That is established by the evidence of Ms Deneuville.[13] The existence and location of the will is known. The will and codicil are in the possession of Ms Deneuville and she has provided a certified copy of them. The terms of both documents are proved. The evidence shows that the will and codicil were the last testamentary instruments made by the deceased, and that there was no revocation.[13]Succession Act 1981, s 33T.