Leach v Leach[2007] QCA 117

SUPREME COURT OF QUEENSLAND

1. WILLIAMS JA: Alan John Leach died in Cairns on 4 May 2006.  By his will he appointed the respondent Stephen Alan Leach to be executor of his estate.  The appellant, Jeffery Francis Leach, and the respondent are the only surviving children of the deceased.  A daughter, Michelle, pre-deceased the deceased leaving two adult daughters, Nadina Taylor and Hayley Taylor.

2. In terms of the will the deceased's house and its contents, and his motor vehicle, were left to the respondent, and his "money" was left to be evenly divided between his three children: the appellant, the respondent and Michelle. The will was executed on 15 November 1995, and after Michelle died in 2000 he crossed out her name where it appears in the will, but that alteration was not attested. It is agreed that the alteration is not legally effective and the will will be admitted to probate referring to the deceased's three children sharing his money equally.

3. Notices of intention to apply for a grant of probate were published in the Cairns Post on 8 June 2006 and in the Queensland Law Reporter on 1 July 2006. On or about 21 June 2006 the appellant lodged a caveat contesting the deceased's will and requiring proof in solemn form. He asserted in the caveat that he required proof in solemn form "on the ground that I am one of Alan John Leach sons".

4. On 3 July 2006 the solicitor acting for the respondent wrote to the appellant inviting him either to withdraw the caveat or provide proper particulars for requiring proof in solemn form. That letter also explained to the appellant his possible rights under s 40 of the Succession Act 1981 (Qld) and explained the difference between an application pursuant to that provision and requiring the will to be proved in solemn form.

5. As no satisfactory response was received from the appellant the respondent applied by application filed 10 November 2006 to have the caveat set aside. That application was made pursuant to r 626 of the Uniform Civil Procedure Rules 1999 (Qld) which relevantly provides that the court may set aside the caveat if the court considers that the evidence does not "show that the caveator has an interest in the estate or a reasonable prospect of establishing an interest".

6. The application setting aside the caveat was heard by Jones J in the Supreme Court at Cairns and for reasons published on 29 November 2006 he ordered that the caveat lodged on 15 June 2006 be removed and that the caveator pay the costs of and incidental to the application to be assessed on a standard basis.

7. In those reasons it was noted that the appellant did not challenge the execution of the will, nor was there any suggestion made of lack of capacity in the testator which might affect the validity of the will. The contention of the appellant before Jones J, and repeated again on the hearing of the appeal, was that he was acting in the interests of Hayley Taylor and Nadina Taylor and also Cody Leach. As already noted Hayley and Nadina Taylor are adults, and Cody is the son of the present respondent. It appears that the appellant was motivated by a concern to ensure that at least Hayley and Nadina benefited from the estate. As Jones J said in his reasons: "However noble that cause may seem to the mind of the respondent, it is not the basis for lodging a caveat requiring the proof of the will in solemn form." Jones J went on to conclude that the appellant had not shown a caveatable interest, nor a reasonable prospect of establishing such an interest and in consequence he ordered the caveat to be removed.

8. In his notice of appeal from the decision of Jones J lodged 5 February 2007 the only ground of appeal alleged is: "Inconsistency with the comments made within the Cairns Supreme Judgment by Hon Judge Stanley Jones". The notice of appeal also states that the orders sought are "a determination in favour of Trust accounts Ms Haylee Taylor, Ms Nadina Taylor and Mr Cody Leach. Any orders of costs paid to the respondent be overturned."

9. By letter dated 15 January 2007 the solicitors for the respondent drew the attention of the appellant to the hopelessness of his appeal in the associated matter which is Appeal No 50 of 2007 and invited him to consent to its withdrawal. The offer was that if the appeal was withdrawn by 22 January 2007 the respondent executor would bear his own costs. Failing that the appellant was put on notice that if the appeal was dismissed by this Court the respondent would ask for costs on an indemnity basis.

10. As there was no favourable response from the appellant to that letter the respondent filed an application in this Court on 22 February 2007 to have this appeal struck out as frivolous and vexatious or as an abuse of process. Other relief was sought in the alternative. It is that application which is now before this Court.

11. The appellant appeared on his own behalf before this Court and reiterated that he was acting in the interests of Hayley, Nadina and Cody in seeking to maintain the caveat.

12. Clearly the appellant has not demonstrated that he has an interest in the estate of Alan John Leach such as would support the caveat and the decision of Jones J to remove the caveat was clearly correct.

13. The reasoning of the Full Court in In re Devoy: Fitzgerald and Pender v Fitzgerald [1943] St R Qd 137 applies to r 626 of the UCPR.  That authority clearly establishes that a person, even if he be next of kin, could not oppose a grant of probate of a will unless that person had some interest to protect.  The following passage of the judgment of Philp J at 145 is instructive:

"It thus becomes apparent that a person 'interested' or 'interested in the estate' cannot enforce the bringing of an action in which he can dispute the validity of the will, unless he can show an interest sufficient to entitle him to object to the grant applied for… and according to that law an interest sufficient to entitle a person to object to a grant must be some right of that person which will be affected by the grant."

14. It is also of significance to note that pursuant to s 33 of the Succession Act the interest which Michelle would have taken under the will would pass to her surviving daughters Hayley and Nadina.

15. In my view the appeal was always hopeless and should be struck out as an abuse of process. The estate should not have to bear the costs of it, thereby reducing the benefit, inter alia, to Hayley and Nadina. That is particularly so when the appellant was put on notice by the letter of 15 January 2007.

16. In the circumstances the appeal should be struck out and the appellant, Jeffrey Francis Leach, should be ordered to pay the respondent's costs of the appeal and application assessed on an indemnity basis.

17. KEANE JA: I agree with the reasons of Williams JA and the orders proposed by his Honour.

18. DOUGLAS J: I agree with the reasons of Williams JA and his Honour’s proposed orders.