Re Van Brakel (dec'd)
[2023] QSC 67
•4 April 2023
SUPREME COURT OF QUEENSLAND
CITATION:
Re Van Brakel (dec’d) [2023] QSC 67
PARTIES:
IN THE WILL OF EVERHARDUS RIK VAN BRAKEL (deceased)
WILHELMUS BERNARDUS VAN BRAKEL
(applicant)
FILE NO/S:
BS No 9443 of 2014
DIVISION:
Trial Division
PROCEEDING:
Application on the papers
DELIVERED ON:
4 April 2023
DELIVERED AT:
Brisbane
HEARING DATE:
Application on the papers
JUDGE:
Davis J
ORDERS:
1. That leave be granted to the applicant to retract his renunciation of probate of the will of Everhardus Rik Van Brakel (dec’d).
2. That the original grant of probate of the will of Everhardus Rik Van Brakel made in favour of John Van Brakel be revoked due to the death of John Van Brakel.
3. Probate of the will of Everhardus Rik Van Brakel be made in favour of the applicant.
CATCHWORDS:
SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – RENUNCIATION – RETRACTION OF RENUNCIATION – where the applicant’s brother died leaving a will – where the will appointed the applicant’s mother and another of the applicant’s brothers as executors – where the will appointed the applicant as executor in default of his mother and other brother – where the applicant’s mother renounced her right to probate – where the applicant renounced his right to probate – where probate was granted to the applicant’s other brother – where the applicant’s other brother died – whether the applicant should be given leave to revoke his renunciation – whether the applicant should be granted probate of the will
Succession Act 1981, s 6, s 46, s 47, s 54
Uniform Civil Procedure Rules 1999In the Goods of Gill [1873] LR 3 P&D 113, cited
In the Goods of Morant [1874] LR 3 P&D 151, cited
Munday and Berry v Slaughter [1839] 2 Curt 72; 163 ER 341, cited
Re Ahern [1951] QWN 32, cited
Re Backhouse [1949] QWN 18, cited
Re Estate of Daphne Lillian May Thurston [2001] NSWSC 144, followed
Re the Estate of Ron Tee Lim (deceased); (the Application of Kaye Lim) [2020] NSWSC 322, followed
Re Goddard [1951] QWN 37, cited
Re Lawrence [1982] VR 826, followed
Re Shimei’s Goods [1897] 8 QLJ (NC) 51, cited
Re Thornton (1826) 162 ER 479, citedSOLICITORS:
Chris Sheath & Associates, Solicitors for the applicant
The applicant, Wilhelmus Bernardus Van Brakel, who is known commonly as Ben Van Brakel, applies for leave to retract his renunciation of his position as executor and trustee of the will of Everhardus Rik Van Brakel, deceased, who was commonly known as Harry van Brakel. He also seeks a grant of probate of the will of Harry Van Brakel.
Background
Cornelia Van Brakel is the mother of each of the applicant, Harry Van Brakel and John Van Brakel.
On 25 April 2004, Harry Van Brakel made his last will and testament (the will).
The will appointed Mrs Van Brakel and John Van Brakel as executors and trustees and also provided:
“In the event that he/she/they[1] predecease me or is/are unwilling or incapable of acting then I appoint:
My brother Ben Van Brakel of 4 Harm Street, Toowoomba in the state/territory of Queensland Post Code 4350”
[1]A reference to Cornelia Van Brakel and John Van Brakel.
By the will, Harry Van Brakel left his estate to Mrs Van Brakel and, in the event she predeceased him, then to Ben and John Van Brakel.
Harry Van Brakel died on 31 May 2014.
On 9 September 2014, Mrs Van Brakel, who survived Harry Van Brakel, and the applicant each renounced all right and title to the probate and execution of the will.
On 5 November 2014, probate of the will was granted to John Van Brakel.
John Van Brakel died on 29 August 2022.
At the time of his death, Harry Van Brakel owned a 1/100th share in a house at 4 Harm Street, Harristown, Toowoomba (the house). The applicant owns the other 99/100th shares and lives in the house.
Harry Van Brakel is still the registered proprietor of a 1/100th share in the house. It is the only remaining asset in Harry Brakel’s estate. The only action left to take in the estate is to transfer Harry Van Brakel’s 1/100th share in the house to Mrs Van Brakel.
The house was valued in January 2023 at $360,000, thus valuing the estate’s interest at $3,600.
Probate of John Van Brakel’s estate has not been given to any person.
Mrs Van Brakel does not intend to withdraw her renunciation of any right to probate of Harry Van Brakel’s will.
The applicant applies to:
1.obtain leave to retract his renunciation of the right to probate of Harry Van Brakel’s will;
2.have the grant of probate of Harry Van Brakel’s will, which was granted to John Van Brakel, revoked;
3.have probate in Harry Van Brakel’s will granted to him.
Legal principles
Section 6 of the Succession Act 1981 gives jurisdiction to this court in matters of probate and administration of deceased estates. The Succession Act and the Uniform Civil Procedure Rules 1999 (UCPR) then provide various procedures for the granting of probate and letters of administration and for administration generally.[2] However, reliance is also made upon the common law and equity.
[2]Uniform Civil Procedure Rules 1999, Chapter 15.
Sections 46, 47 and 54 of the Succession Act all recognise the right of a named executor to renounce. Section 46 provides:
“46 Cesser of right of executor to prove
Where a person appointed executor by a will—
(a)survives the testator but dies without having taken out probate of the will; or
(b)renounces probate; or
(c)after being duly cited or summoned fails to apply for probate;
the person’s rights in respect of the executorship shall wholly cease, and the representation of the testator and the administration of the testator’s estate shall devolve and be committed in like manner as if that person had not been appointed executor.”
Nothing in either the Succession Act nor the UCPR provides for, or acknowledges, the right of a named executor to revoke an earlier renunciation of probate.
In Re Goddard,[3] Stanley J seemingly followed In the Goods of Morant,[4] Re Shimei’s Goods[5] and Munday and Berry v Slaughter[6] and held that a renunciation could be retracted at any time before it was filed with the court.
[3][1951] QWN 37.
[4][1874] LR 3 P&D 151.
[5][1897] 8 QLJ (NC) 51.
[6][1839] 2 Curt 72; 163 ER 341.
Stanley J also decided Re Ahern.[7] There, the deceased died intestate but next of kin renounced their right to a grant of administration. The document effecting the renunciation was filed with the court and one of the relatives sought to retract the renunciation. Following In the Goods of Gill,[8] Stanley J held that the renunciation could be revoked but only by leave.
[7][1951] QWN 32.
[8][1873] LR 3 P&D 113.
It is now well-established that a renunciation of a right to apply for probate may be revoked even though the renunciation has been formalised by filing a document in the court.[9] The central consideration in the exercise of discretion to grant leave is whether the retraction will be for the benefit of the estate.[10]
[9]Re Lawrence [1982] VR 826, Re Estate of Daphne Lillian May Thurston [2001] NSWSC 144 and the analysis of the cases in Re the Estate of Ron Tee Lim (deceased); (the Application of Kaye Lim) [2020] NSWSC 322, Re Backhouse [1949] QWN 18.
[10]Re Estate of Daphne Lillian May Thurston [2001] NSWSC 144 at [13]-[19].
The exercise of discretion here
The applicant was named in the will as an alternative executor and trustee of Harry Van Brakel. Therefore, it was intended that the applicant would administer the estate in the event that Mrs Van Brakel and John Van Brakel did not or could not. Given that Mrs Van Brakel maintains her renunciation and John Van Brakel has died, the wishes of Harry Van Brakel are best served by giving the applicant leave to revoke the renunciation and take a grant of probate.
However, once probate was granted to John Van Brakel, a chain of executorial representation could commence so that any executor of John Van Brakel’s estate becomes the executor of Harry Van Brakel’s estate.[11]
[11]Succession Act 1981, s 47.
That was the issue in Re Thornton.[12] There, an executor renounced the right to probate and subsequently letters of administration were granted to another person who subsequently died. The named executor in the original will sought to revoke the renunciation and take the administration of the estate from the executor of the deceased administrator’s estate. Leave to revoke the renunciation was denied because a new line of executorial representation had commenced and was vested in the executor of the deceased administrator’s estate. Here, the chain of executorial representation is broken because probate has not been obtained of the will of John Van Brakel.[13]
[12](1826) 162 ER 479.
[13]Succession Act 1981, s 47(3)(c).
It is in the interests of the administration of the estate of Harry Van Brakel, and also in the interests of the only beneficiary, Mrs Van Brakel, that the applicant be granted leave to revoke his renunciation and that probate be granted to him.
The factors leading to that conclusion are:
1.The intention of Harry Van Brakel was that the applicant should administer his estate if Mrs Van Brakel and John Brakel either would not or could not do so.
2.As probate has not been granted in the estate of John Van Brakel, there is no competing line of executorial representation.
3.The estate of Harry Van Brakel is almost fully administered.
4.The only remaining step to take to finalise the administration of the estate is the transfer of Harry Van Brakel’s 1/100th interest in the house to Mrs Van Brakel.
5.The applicant is in a position to effect that transfer and has expressed a willingness and desire to do so.
The orders are:
1.That leave be granted to the applicant to retract his renunciation of probate of the will of Everhardus Rik Van Brakel (dec’d).
2.That the original grant of probate of the will of Everhardus Rik Van Brakel made in favour of John Van Brakel be revoked due to the death of John Van Brakel.
3.Probate of the will of Everhardus Rik Van Brakel be made in favour of the applicant.
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