One of the initial steps in managing an estate is to apply for a Grant of Probate or Letters of Administration. These grants authorise the legal personal representative to undertake further estate administration tasks, including gathering the deceased’s assets, settling debts, and distributing the remaining estate to the beneficiaries as the Will stipulates. The executor or administrator must ensure that the instructions outlined in the Will are followed precisely unless they conflict with the laws regulating estate administration in Queensland. 

For example, while a Will may specify that a particular property is to be given to a beneficiary if the estate has significant debts, it may be necessary to sell the bequeathed asset to pay off those debts. A key duty in estate administration involves safeguarding the estate’s assets for the benefit of the beneficiaries. When an interested beneficiary requests, the legal personal representative must present a comprehensive account of the estate’s assets and debts. Section 52 of the Succession Act 1981 provides if the legal personal representative fails to act responsibly in protecting the estate, the beneficiaries have the right to file a complaint with the Supreme Court.

Background

Hoult v Denschel [2024] QSC 318 concerned the estate of Alison Robertson Hoult (the deceased), who had three children:  Frederick, Kathleen Alison Wright (Kathleen) and Frank Keith Hoult (Frank). Alison was estranged from both her son, Frank, and her daughter, Kathleen, and had been for decades before her death. 

The deceased made two Wills during her lifetime. The first Will, created in 2019, left her entire estate to her son, Frederick Hoult (the applicant). It also included backup provisions for the applicant’s ex-wife, Patricia, in case the applicant could not inherit. The deceased appointed a solicitor as the primary executor and designated Patricia as a backup executor. In her second will, dated 2021, the deceased chose to leave her estate to Peter Denschel (the respondent) and named him the executor. 

The primary asset of the deceased estate consists of a residence located at 1 Caribbean Court, Deception Bay (the house). In addition, there are two vehicles, various other belongings, and two bank accounts with the Great Southern Bank. The complete details of any debts are unclear, although the primary liability appears to be a loan to the Commonwealth Bank of Australia amounting to approximately $265,000.

The applicant began residing with the deceased in approximately 2011. After starting a relationship with Patricia in 2015, she also moved into the house. The couple married in 2017 and continued to live with the deceased. During their time in the house, Patricia introduced the deceased to the respondent, who lived nearby in a relocatable home. As time passed, the deceased and the respondent developed a friendly relationship.

Starting in 2020, the deceased became increasingly isolated, refusing to leave the house and communicating less with the applicant while growing dependent on the respondent. On or around January 5, 2021, the respondent informed the applicant that the deceased had stated she did not want him at the house and intended to evict him despite no prior conflict between the applicant and the deceased.

Eventually, the respondent told the applicant and Patricia they needed to leave the property, claiming it was the deceased’s desire. The respondent also prevented the applicant from speaking to the deceased.

On January 17, 2021, the applicant and Patricia vacated the house.

As previously noted, the 2021 Will was created on March 19, 2021, just 21 days before the deceased’s death on April 9, 2021, at 82.

The cause of death listed on the deceased’s death certificate states “1. Metastatic ovarian cancer. 2. Type 2 diabetes, mild cognitive impairment,” with the informant recorded as “the respondent, Executor, 1 Caribbean Court, Deception Bay.”

The respondent currently resides in the house. To date, he has taken no actions regarding the administration of the estate under the 2021 Will. No petition for probate has been submitted, nor has any notice of his intention to apply for probate of the 2021 Will been published. The house is still registered in the deceased’s name, and the applicant has lodged a caveat on the title, asserting his interest as a beneficiary under a constructive trust based on his contributions toward the house’s maintenance and improvement.

The matter

On September 27, 2023, the applicant submitted an application for family provision under s 41(1) of the Succession Act 1981 and served on the respondent on September 28. On October 9, 2023, the respondent emailed that he planned to seek legal counsel regarding the application. Still, the applicant received no further communication from him despite follow-up inquiries sent via email on November 17, 2023.

The Office of the Public Trustee Queensland prepared the 2021 Will. Communication between the respondent’s legal representatives and the Office of the Public Trustee was ongoing. The Public Trustee denied requests to release file notes related to instructions taken from the deceased, stating that they provided all documentation to the respondent.

In Re Levy Deceased (No 2), Scholl J observed that an executor propounding a Will

“… has, of course, no duty to put forward an instrument if he is satisfied that it ought not to be put forward.  But once he does put it forward, he is entitled, in my opinion, to put it forward with only such evidence, available to him, as is in its favour”. 

Scholl J later observed

“nor is it the duty of the Court to make its own investigation of all the facts when an application is made to it for a grant of probate in solemn form.  There is, so far as I can see, no ground for saying that on such an application the court comes under any duty, statutory or otherwise, to satisfy itself, by any form of independent investigation of the validity of the will for which probate is sought”.

An executor of a Will is not required to disprove the legitimacy of a subsequent Will that claims to revoke a previously submitted Will. 

The applicant submitted the current application on 25 October 2024. It requests by way of primary relief:

(i)  the pronouncement of the 2019 Will as against the 2021 Will;

(ii)  a grant of probate of the 2019 Will to the applicant; and

(iii)  orders against the respondent to deliver up the house.

Alternatively, if the Court is unwilling to affirm the validity of the 2019 Will, the applicant requests guidance that would compel the respondent to try and validate the 2021 Will. 

If the Court does not provide the primary relief, the applicant seeks a grant of letters of administration to solicitors Robert John Lamb as Administrator of the deceased estate;

  • registered as the proprietor of any property belonging to the deceased as the Administrator of the estate under s114 of the Land Title Act 1994 (Qld),
  • shall have fees assessed by an independent cost assessor based on the Supreme Court Scale on an indemnity basis and paid approximately every two months and upon completion of the estate administration under ss 6 and 68 of the Succession Act 1981 (Qld), s101 of the Trusts Act 1993 (Qld), and rule 638(5) of the Uniform Civil Procedure Rules 1999 (Qld) 
  • may engage Hillhouse Legal Partners to assist in managing the estate and compensate them for their standard professional and business fees.
  • has the right to apply with three days’ notice regarding this matter and requests for costs.

Which is restricted to effectively managing the estate assets. In this case, the Court appointed Mr Lamb as the administrator.

After reviewing arguments on 19 November 2024, Davis J concluded that the applicant’s request for probate should instead be a request for letters of administration. The applicant is not an executor named in the 2019 Will, but since the mentioned executors have all renounced their administration rights, Davis J finds it appropriate to proceed. On 13 December 2024, the applicant’s counsel confirmed that their client sought letters of administration.

Davis J accepted that the objective is to obtain a grant of letters of administration to the applicant. According to the 2019 Will, he is the residual beneficiary, and since no other party has a higher claim, he is generally entitled to receive a grant of letters of administration. 

On 6 October 2024, the respondent was served with the application, along with all the supporting documentation, was served on the respondent on 6 October 2024. As noted earlier, the applicant presented the application before the Court on 19 November 2024. Davis J was satisfied that the respondent was served correctly, although he did not appear in Court.

In Hoult v Denschel [2024] QSC 318, the applicant intends to submit the 2019 Will for approval. No one is attempting to submit the 2021 Will. The respondent has been notified of the ongoing application and has opted not to contest the 2019 Will. The applicant’s affidavit raises concerns regarding undue influence and capacity related to the 2021 Will. The respondent had the chance to present evidence supporting the validity of the 2021 Will, should he have chosen to do so. 

Davis J explained that if he were to order the respondent to provide a statement of claim in favour of the 2021 Will, he would essentially be instructing the respondent to challenge the 2019 Will by advocating for the 2021 Will. The role of the Court is to resolve disputes rather than to initiate conflicts among individuals.

Since the deceased’s death, the respondent has shown no interest in proving the validity of the 2021 Will. When the applicant raised concerns about the 2021 Will in his application to validate the 2019 Will, the respondent did not participate. 

In the case of Grey Smith, Deceased [1978] VR 596, Murphy J summarised the observations if the executors present evidence that creates a strong suspicion the second document does not accurately reflect the intentions of a competent testator and provided that all parties with an interest have been notified. None have attempted to validate the later document and the will in its formal context; the court should disregard the subsequent document.

Davis J held that, at first glance, the 2019 Will seemed valid, and there was no reason to deviate from the established body of authority. 

Conclusions

Davis J ordered a grant of letters of administration for 2019 Will to the applicant.  The force and validity of the 2019 Will ought to be pronounced, effectively pronouncing against the force and validity of the 2021 Will.  The plaintiff, the administrator of the deceased’s estate, should possess the house.  It is fair to give the respondent a month to vacate.  

The 2019 Will is valid and uncontested, standing firm on its merits. The court determined that there was no obligation to compel the respondent to provide evidence for the 2021 Will, given that probate operates as an adversarial process. Additionally, the respondent’s lack of action suggested an absence of genuine interest in challenging the 2019 Will or in substantiating the claims surrounding the 2021 Will.

The respondent asserted that he was the executor of the estate and then took no action to prove the 2021 Will. This application was only necessary because the respondent did not communicate with the applicant’s solicitors and could have told them he did not seek to prove the 2021 Will.  

Court Orders:

By 4 pm on 24 January 2025:

The respondent must vacate the property at 1 Caribbean Court, Deception Bay, and deliver possession back to the applicant. Additionally, the respondent must remove all personal possessions from the premises and ensure that the property is left clean and tidy for the applicant. Furthermore, the respondent must return all keys to the applicant’s solicitors.

Concerning financial matters, the deceased estate shall cover the applicant’s costs related to this application on an indemnity basis, which the respondent will reimburse.

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