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  • Unreported Judgment

Re Starkey

 

[2015] QSC 32

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Re: Starkey [2015] QSC 32

PARTIES:

JOAN LYNETTE DAHL AND

ROBERT MCINTOSH BROOM

(Applicants)

FILE NO/S:

19 of 2015

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED EX TEMPORE ON:

30 January 2015

DELIVERED AT:

Cairns

HEARING DATE:

30 January 2015

JUDGE:

Henry J

ORDERS:

  1. Subject to the formal requirements of the Registrar, a grant of letters of administration with the will annexed of the above deceased dated 3 October 1903 be granted to the applicants.
  2. That the grant made pursuant to order 1 be limited to:
  1. taking possession of and preserving the estate of the deceased;
  2. paying any liabilities and testamentary expenses of the estate, including outstanding taxes and duties; and
  3. obtaining evidence, and bringing proceedings for a declaration pursuant to section 6(1) of the Succession Act 1981 in relation to the beneficial distribution of the estate of the deceased.
  1. That the costs of and incidental to this application incurred by the applicants, and the previous proposed applicants Edward and Leslie Broom, be paid from the estate of the deceased on the indemnity basis.

CATCHWORDS:

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – LIMITED, SPECIAL AND CONDITIONAL GRANTS OF PROBATE AND ADMINISTRATION – GENERALLY – where the applicants seek a grant of letters of administration pursuant to rule 603(1)(d) of the Uniform Civil Procedure Rules 1999 (Qld) – where the grant sought is limited to the payment of liabilities, taxes and duties of the estate, and to initiate inquiries to ascertain who is entitled to the beneficial distribution of the estate

Uniform Civil Procedure Rules 1999 (Qld) r 603

Succession Act 1981 (Qld) s 6(1)

COUNSEL:

N de Costa (sol) for the applicants

SOLICITORS:

Miller Harris Lawyers for the applicants

  1. HIS HONOUR:   Elizabeth Starkey died in 1907.  Her last will and testament was executed on the 3rd of October 1903. 
  2. Her daughter Frances was a minor beneficiary  The primary beneficiary and the executor of the will was her son, Abraham Mackintosh Broom.  He lived another 46 years after his mother’s death.  Probate was not taken out. 
  3. His mother owned parcels of land at Wyara, near Bundaberg.  It appears, apparently because of non-payment of rates, that the council sold up the land, presumably to cover the debt, and the proceeds thereof went to the Public Trustee as unclaimed.  The primary amount held by the Public Trustee exceeds $500,000 even without consideration of relevant additional interest. 
  4. The realisation of the existence of the significant unclaimed amount, and the likely beneficial interests of the descendants of Elizabeth Starkey in it, has come to light only recently.  At this point, it appears those descendants who present as potential beneficiaries have, to the extent practicable, been notified of today’s application, although it remains the case that there may be other potential beneficially interested parties.  That prospect is not so troubling as to deter the court from determining the present application.  That is because the application itself only seeks a limited form of grant of  letters of administration of the will.
  5. The course being pursued is that the applicants be appointed as administrators with a view to initiating inquiries to ascertain who is entitled to the beneficial distribution of the estate and thereafter return to seek the court’s declarations and other relevant orders about that.  In short, a two-stage process is being adopted, so that the matters ordinarily the court would be equipped with in totality can be properly determined. Such an approach in the circumstances of this unusual case is, in my view, unremarkable. 
  6. The current application falls to be determined under the current legislative scheme.  Time will tell what relevance previous Queensland law will have in determining future potential issues. 
  7. The usual advertising has been undertaken in respect of the will in question.  Notice has been given to the extent possible to descendants identified to the level of great grandchildren. No parties other than the applicants appear today.  There is positive material before me indicating that a number of interested parties have no objection to the orders sought.
  8. Mrs Starkey’s will appears to have been accepted by the Land Titles Registry where it was found in the course of inquiries preceding this application.  It appears, historically, that the integrity of the will was not doubted, indeed, apparently accepted by the Registry.  It appears valid on its face.  There is no evidence to support a conclusion other than that, and the materials satisfactorily discharge the onus of proving the will. 
  9. As to whom the court may grant letter of administration, the Uniform Civil Procedure Rules 1999 (Qld) relevantly provide: 

“603(1)The descending order of priority of persons to whom the court may grant letters of administration with the will is as follows –

(d) another residuary beneficiary;

(e) a person otherwise entitled to all or part of the residuary estate by full or partial intestacy…

(2)The court may grant letters of administration with the will to any person, in priority to any person mentioned in sub rule (1)”

  1. It is not practicable on the existing materials to determine with any clarity which living persons fall within the descending categories of persons described in r 603(1), although the applicants might arguably at least present as being candidates within sub categories (d) and (e).  The very nature of the order sought involves acquiring information of a kind that might allow the question of who falls into the relevant categories to be more confidently determined.  Such an exercise, though, is likely to be academic in the future since the present exercise is calculated at identifying persons appropriate to the present task which, as I have mentioned, is intended to be a limited one. 
  2. On the materials, even if the applicants do not fall within one or more of the categories of rule 603(1), I am persuaded they are persons appropriate for appointment pursuant to rule 603(2).  That is to say even if they did not fall within 603(1), the materials are adequate to justify me granting letters of administration in the limited form contemplated to them in priority to such other persons as may fall within sub rule (1). 
  3. I am fortified in that conclusion by the practical reality that no one else is advancing themselves to undertake the task contemplated and that there is no doubt, given the genealogical information presently available, as to the likely beneficial interests of the applicants and their broader familial interests in tending to this long overdue family task. 
  1. As to the contemplated limitations, for present purposes in this first stage, the Succession Act 1981 (Qld) relevantly provides at section 6(3):

“A grant may be made to such person and subject to such provisions, including conditions or limitations, as the court may think fit.” 

  1. This is, on its face, a conferral of broad ranging discretion upon the court.  The character of the discretion that I am asked to exercise is to limit my grant so that the applicants will take possession of and preserve the estate, paying liabilities and testamentary expenses of the estate, including outstanding taxes and duties, and obtain evidence and bring proceedings for a declaration pursuant to section 6(1) of the Succession Act in relation to the beneficial distribution of the estate of the deceased. 
  2. Section 6(1) contemplates the court has jurisdiction to make all such declarations and to make and enforce all such orders as may be necessary or convenient.  I am satisfied on the materials that it is appropriate to order the grant as contemplated, limiting it in the manner described.  That will allow those interested to advance the resolution of this long-standing task to the second stage I earlier referred to.  I accordingly propose to order as per the draft order. 
  3. On the matter of costs the conventional practice that they ought be paid from the estate on the indemnity basis is presently uncontroversial and the draft order will reflect such an order.  That is not to say what the future may hold about future costs orders but merely reflects the adoption of an orthodox course on the materials presently before me. 
  4. I order as per the draft order signed by me and placed with the papers. 
Close

Editorial Notes

  • Published Case Name:

    Re Starkey

  • Shortened Case Name:

    Re Starkey

  • MNC:

    [2015] QSC 32

  • Court:

    QSC

  • Judge(s):

    Henry J

  • Date:

    30 Jan 2015

Litigation History

No Litigation History

Appeal Status

No Status