Ziesemer v Ziesemer

SUPREME COURT OF QUEENSLAND

CITATION:

Ziesemer v Ziesemer [2011] QSC 214

PARTIES:

KENT EWAN ZIESEMER
(applicant)

v

LYNETTE IRIS ZIESEMER
(respondent)

FILE NO/S:

3658/11
4745/11

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Delivered ex tempore on 10 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

10 June 2011

JUDGE:

Ann Lyons J

ORDER:

1.     The Respondent, Lynette Iris Ziesemer, be removed as Executor of the estate of Rex William Ziesemer (deceased).

2.     The Grant of Probate made to the Respondent, Lynette Iris Ziesemer, be revoked.

3.     Lynette Iris Ziesemer bring the original Grant of Probate into the Registry.

4.     Michael Karl Klatt be granted Letters of Administration with the will to administer the estate of Rex William Ziesemer (deceased), subject to the formal requirements of the Registrar.

5.     The costs of and incidental to this Application of all parties appearing on this Application be paid from the estate of the deceased on an indemnity basis.

CATCHWORDS:

SUCCESSION – EXECUTORS AND ADMINSTRATORS

– REMOVAL AND DISCHARGE – where the applicant seeks the executor's removal to ensure the due and proper administration of the estate of his father – where 6 years have lapsed since the date of death – where break down of the family relationships – where substantial estate and significant debt to be apportioned – whether the executor should be removed.

COUNSEL:

L Nevison for the applicant
T Quinn for the first respondent
D Morgan for the beneficiary Andrew Ziesemar
C Carrigan for the beneficiary Kylie Fanning

SOLICITORS:

McCullough Robertson for the applicant
de Groots Lawyers for the respondent
Creevey Russel Lawyers for the beneficiary Andrew Ziesemar
Dean Kath & Kohler Solicitors for the beneficiary Kylie Fanning

1. ANN LYONS J:  Pursuant to an application filed on 3 May 2011 but foreshadowed in September 2009, February 2010 and February 2011, the applicant, Kent Ziesemer, in proceeding 3658/11 seeks the removal of the executor of the Will of his father, the late Rex William Ziesemer.  He seeks the executor's removal to ensure the due and proper administration of the estate. The executor is his mother Lynette Iris Ziesemer (Mrs Zeisemer).

1. Kent Ziesemer submits that the estate of the deceased has not been administered and six years have elapsed since the date of his father’s death.  He submits that a conflict arises because the executor has failed to determine the apportionment of debt between the beneficiaries and the debt for which she is personally liable, and has continued the farming operation in dereliction of her duty to administer the estate for the benefit of the beneficiaries.

1. The applicant seeks an order that Michael Klatt of Mullins Lawyers be granted Letters of Administration to administer the estate, subject to the formal requirements of the Registrar.

1. The late Mr Ziesemer died suddenly as a result of a farming accident at Condamine in Queensland on 8 March 2005.  He was survived by his wife, his daughter, Kylie Fanning, who is 37 years of age, his son, Kent, the current…