Watson v Yore - [2004] QSC 339

SUPREME COURT OF QUEENSLAND

CITATION:

Watson v Yore & Ors [2004] QSC 339

PARTIES:

MARY ANN WATSON
AS EXECUTOR OF THE ESTATE OF
VERONICA FRANCIS YORE DECEASED
(applicant)
v
THOMAS JOHN YORE
(first respondent)
SHIRLEY FRANCIS BEATY, LYNETTE KATHRYN ZIPF AND JUDITH ANN WILSON
(second respondents)
ELAINE VERONICA CRAWFORD, JENNIFER MARY TOOHEY AND CARMEL THERESE YORE
(third respondents)
MARK YORE, ANNE STANFIELD AND JOHN YORE
(fourth respondents)

FILE NO/S:

SC No 7149 of 2004

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

30 September 2004

DELIVERED AT:

Brisbane

HEARING DATE:

28 September 2004

JUDGE:

Holmes J

ORDER:

The questions are answered as follows:
(a)Should the Applicant as Executor of the Estate of Veronica Francis Yore Deceased retain any part of the Estate to commence and prosecute a proceeding against the First Respondent in relation to any proceeds from any sale of the property known as “Spiddal”?
No.
(b)Should the Applicant proceed to distribute the balance of the said Estate to the Respondents pursuant to the last Will of the Deceased, subject to retaining sufficient funds to pay remaining costs and expenses to complete the administration of the Estate?
Yes.

The application for remuneration of the applicant is refused.

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – APPLICATIONS TO THE COURT FOR ADVICE AND AUTHORITY – PETITION OR SUMMONS FOR ADVICE - where the applicant is an executor who seeks directions under s 96 Trusts Act 1973 – whether the applicant executor should proceed to distribute the balance of the estate or whether the fund should be retained for the bringing of an action against the first respondent

SUCCESSION – EXECUTORS AND ADMINISTRATORS – whether the applicant has authority to charge remuneration as executor pursuant to s 101 of the Trusts Act

Trusts Act 1973, s 96, s 101
Uniform Civil Procedure Rules 1999, r 644

Re Beddoe [1893] 1 Ch 547, cited
Re Lack (1983) 2 Qd R 613, distinguished

COUNSEL:

N E Ulrick for the applicant
B J Clark for the first and second respondents
The third respondent Elaine Veronica Crawford appeared on her own behalf
M K Stunden for the third respondent Carmel Therese Yore and the fourth respondent
No appearance for the third respondent Jennifer Mary Toohey

SOLICITORS:

Bartels Lawyers for the applicant
Keith Scott & Associates for the first and second respondents
Lang Hemming & Hall for the third respondent Carmel Therese Yore and the fourth respondents

The application

The applicant executor seeks directions under s 96 of the Trusts Act 1973, as to whether she should retain funds from the estate for the bringing of a prospective action against the first respondent, Thomas John Yore. The directions sought are framed as follows:

(a) Should the Applicant as Executor of the Estate of Veronica Francis Yore Deceased retain any part of the Estate to commence and prosecute a proceeding against the First Respondent in relation to any proceeds from any sale of the property known as “Spiddal”?

(b) Should the Applicant proceed to…

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 Watson v Yore

Details

AGLC: Watson v Yore [2004] QSC 339
Case: [2004] QSC 339
Decision Date: 30 September 2004

CaseChat Overview and Summary

In Watson v Yore, the parties involved were the Applicant, acting as the executor of the estate of Veronica Francis Yore, and the First Respondent. The central dispute in this case was whether the Applicant should retain a portion of the estate to potentially bring a legal action against the First Respondent regarding the proceeds from the sale of a property known as "Spiddal," or if the estate should be distributed to the other respondents in accordance with the deceased's will. The case was heard in the Supreme Court of Victoria.

The primary legal issues the court needed to address were whether the executor had the authority to retain part of the estate for potential litigation against the First Respondent and whether the executor was entitled to charge remuneration for their services. The court also had to determine whether the executor had the authority to distribute the estate as per the deceased's will.

The court concluded that the executor should not retain any part of the estate to bring a legal action against the First Respondent. Instead, the executor should proceed to distribute the balance of the estate to the respondents as outlined in the deceased's will. The court held that the executor did not have the authority to charge remuneration for their services, and thus, the application for remuneration was refused. This decision was based on the interpretation of the relevant provisions of the Trusts Act 1973 and the specific circumstances of the case.

The court's final orders were that the executor should distribute the balance of the estate to the respondents as per the deceased's will, subject to retaining sufficient funds to pay remaining costs and expenses to complete the administration of the estate. The executor's application for remuneration was refused.

Orders

Orders of the court

The questions are answered as follows:

(a)Should the Applicant as Executor of the Estate of Veronica Francis Yore Deceased retain any part of the Estate to commence and prosecute a proceeding against the First Respondent in relation to any proceeds from any sale of the property known as “Spiddal”?

No.

(b)Should the Applicant proceed to distribute the balance of the said Estate to the Respondents pursuant to the last Will of the Deceased, subject to retaining sufficient funds to pay remaining costs and expenses to complete the administration of the Estate?

Yes.

The application for remuneration of the applicant is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Watson v Yore & Ors [2004] QSC 339
PARTIES:	MARY ANN WATSON AS EXECUTOR OF THE ESTATE OF VERONICA FRANCIS YORE DECEASED (applicant) v THOMAS JOHN YORE (first respondent) SHIRLEY FRANCIS BEATY, LYNETTE KATHRYN ZIPF AND JUDITH ANN WILSON (second respondents) ELAINE VERONICA CRAWFORD, JENNIFER MARY TOOHEY AND CARMEL THERESE YORE (third respondents) MARK YORE, ANNE STANFIELD AND JOHN YORE (fourth respondents)
FILE NO/S:	SC No 7149 of 2004
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	30 September 2004
DELIVERED AT:	Brisbane
HEARING DATE:	28 September 2004
JUDGE:	Holmes J
ORDER:	The questions are answered as follows: (a)Should the Applicant as Executor of the Estate of Veronica Francis Yore Deceased retain any part of the Estate to commence and prosecute a proceeding against the First Respondent in relation to any proceeds from any sale of the property known as “Spiddal”? No. (b)Should the Applicant proceed to distribute the balance of the said Estate to the Respondents pursuant to the last Will of the Deceased, subject to retaining sufficient funds to pay remaining costs and expenses to complete the administration of the Estate? Yes. The application for remuneration of the applicant is refused.
CATCHWORDS:	EQUITY – TRUSTS AND TRUSTEES – APPLICATIONS TO THE COURT FOR ADVICE AND AUTHORITY – PETITION OR SUMMONS FOR ADVICE - where the applicant is an executor who seeks directions under s 96 Trusts Act 1973 – whether the applicant executor should proceed to distribute the balance of the estate or whether the fund should be retained for the bringing of an action against the first respondent SUCCESSION – EXECUTORS AND ADMINISTRATORS – whether the applicant has authority to charge remuneration as executor pursuant to s 101 of the Trusts Act Trusts Act 1973, s 96, s 101 Uniform Civil Procedure Rules 1999, r 644 Re Beddoe [1893] 1 Ch 547, cited Re Lack (1983) 2 Qd R 613, distinguished
COUNSEL:	N E Ulrick for the applicant B J Clark for the first and second respondents The third respondent Elaine Veronica Crawford appeared on her own behalf M K Stunden for the third respondent Carmel Therese Yore and the fourth respondent No appearance for the third respondent Jennifer Mary Toohey
SOLICITORS:	Bartels Lawyers for the applicant Keith Scott & Associates for the first and second respondents Lang Hemming & Hall for the third respondent Carmel Therese Yore and the fourth respondents