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Leach v Leach[2007] QCA 118

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Leach & Leach (as personal representatives of the estate of Irene Clare Leach) v Leach [2007] QCA 118

PARTIES:

STEPHEN ALAN LEACH as personal representative of the estate of IRENE CLARE LEACH
(first applicant/first respondent)
MARK FREDERICK LEACH as personal representative of the estate of IRENE CLARE LEACH
(second applicant/second respondent)
v
JEFFERY FRANCIS LEACH
(respondent/appellant)

FILE NO/S:

Appeal No 50 of 2007

SC No 246 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Application to Strike Out

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

5 April 2007

DELIVERED AT:

Brisbane

HEARING DATE:

23 March 2007

JUDGES:

Williams and Keane JJA and Douglas J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal struck out

2. Appellant ordered to pay the respondent’s costs of the appeal and application assessed on an indemnity basis

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL-PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – where appellant lodged caveat contesting grandmother's will – where application to remove caveat granted on basis that appellant failed to show caveatable interest – where absence of proper particulars – where appellant purported to be acting in the interests of his nieces and nephew – where respondents advised appellant of hopelessness of appeal – whether appeal should be struck out – whether indemnity costs should be awarded

Succession Act 1981 (Qld), s 33

Uniform Civil Procedure Rules 1999 (Qld), r 626

In re Devoy: Fitzgerald and Pender v Fitzgerald [1943] St R Qd 137, applied

COUNSEL:

The appellant appeared on his own behalf

D P Morzone for the respondents

SOLICITORS:

The appellant appeared on his own behalf

Williams Graham Carman for the respondents

  1. WILLIAMS JA: Irene Clare Leach died on 17 March 2006.  By her will the respondents were appointed executors.  Relevantly her last will, dated 10 January 1999, left specific chattels to some of her sons and grandsons, including the appellant, and then left the rest and residue of her property to her four sons.  One of those sons was Alan John Leach who pre-deceased the testatrix.  By operation of s 33 of the Succession Act 1981 (Qld) the appellant and his brother Stephen would share the interest which would have been taken by their deceased father.
  1. On 23 March 2006 the appellant wrote a letter advising that he would be contesting the deceased's will. On 5 May 2006 the appellant gave a written notice which the respondents took to be a notice of intention to make a testator's family maintenance claim against the estate. The respondents gave notice of intention to apply for a grant of probate by notice in the Cairns Post on 1 June 2006 and in the Queensland Law Reporter on 10 June 2006.
  1. On or about 21 June 2006 the appellant lodged a caveat contesting the deceased's will and requiring proof in solemn form. The ground alleged in support of the caveat was: "I am one of Irene Clare Leach Grandson's who Cared & lived with her for a period of 16 years".
  1. On 3 July 2006 the solicitor for the respondents wrote to the appellant asserting he did not have a proper ground on which to require proof of the deceased's will in solemn form. The appellant responded but did not provide any particulars of his concern about the validity of the deceased's will. In that letter the appellant asserted that the deceased referred to him as her next of kin and that he provided her with care, including cooking, cleaning, paying of bills and management of money. He also alleged that her other children never had contact with her because they could not deal with her dysfunction.
  1. Then the respondents applied to the Supreme Court for an order for the removal of the caveat pursuant to r 626 of the Uniform Civil Procedure Rules 1999 (Qld).  Relevantly that rule provides that the court can set aside a 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 in the estate.  That application came on for hearing before 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 costs on the standard basis.
  1. In his reasons Jones J referred to an affidavit of the appellant filed 27 November 2006 in which he stated his "own opinion that his grandmother suffered from a personality disorder". There was also another document placed before his Honour in which the appellant asserted that the deceased was "a person of unsound mind". Jones J noted that the "basis for the latter lay opinion was because there was some inconsistency between the will now sought to be propounded and an earlier will which the testatrix made at the Office of the Public Curator". In my view Jones J correctly went on to say that because those opinions were "not supported by any professional opinion, nor supported by any details of behaviour which might enliven the suspicion that the testatrix was of other than sound mind" that opinion of the appellant was disregarded.
  1. The judgment also noted other substantiated reasons advanced by the appellant for seeking to uphold the caveat.
  1. In my view Jones J correctly went on then to conclude:

"There is nothing in the material lodged by the caveator which suggests there was any impediment in the execution of the will, nor that there was any concern about the capacity of the applicant when she executed the will on 10th January 1999."

  1. By notice of appeal filed 2 January 2007 the appellant appealed against the order of Jones J. The only ground of appeal stated was: "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."
  1. By letter dated 15 January 2007 the solicitors for the respondents drew the attention of the appellant to the hopelessness of the appeal and invited him to consent to its withdrawal. The offer was that if the appeal was withdrawn by 22 January 2007 the respondents would bear their 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.
  1. As there was no favourable response from the appellant to that letter the respondents filed an application in this Court on 22 February 2007 to have the 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.
  1. The appellant appeared on his own behalf before this Court and reiterated that he was acting in the interests of Haylee, Nadina and Cody in seeking to maintain the caveat.
  1. Clearly the appellant has not demonstrated that he has an interest in the estate of Irene Clare Leach such as would support the caveat and the decision of Jones J to remove the caveat was clearly correct.
  1. 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."

  1. 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 associated with the appeal and the striking out. That is particularly so when the appellant was put on notice by the letter of 15 January 2007.
  1. In the circumstances the appeal should be struck out and the appellant, Jeffery Francis Leach, should be ordered to pay the respondents' costs of the appeal and application assessed on an indemnity basis.
  1. KEANE JA: I agree with the reasons of Williams JA and the orders proposed by his Honour.
  1. DOUGLAS J: I agree with the reasons of Williams JA and his Honour’s proposed orders.
Close

Editorial Notes

  • Published Case Name:

    Leach & Leach (as personal representatives of the estate of Irene Clare Leach) v Leach

  • Shortened Case Name:

    Leach v Leach

  • MNC:

    [2007] QCA 118

  • Court:

    QCA

  • Judge(s):

    Williams JA, Keane JA, Douglas J

  • Date:

    05 Apr 2007

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2006] QSC 41029 Nov 2006Applications to set aside caveats lodged against the granting of probate; basis for lodging caveat regarding I Leach estate entirely misconceived; in regards to A Leach, no caveatable interest shown and no reasonable prospects of establishing an interest; caveats set aside: Jones J.
Appeal Determined (QCA)[2007] QCA 11805 Apr 2007Appeal struck out with costs on the indemnity basis; no interest in estate demonstrated; appeal against order removing caveat against estate (SC246/07); appeal was always hopeless and should be struck out as an abuse of process: Williams and Keane JJA and Douglas J.
Appeal Determined (QCA)[2007] QCA 11705 Apr 2007Appeal struck out with costs on the indemnity basis; no interest in estate demonstrated; appeal against order removing caveat against estate (SC247/06); appeal was always hopeless and should be struck out as an abuse of process: Williams and Keane JJA and Douglas J.
Appeal Determined (QCA)[2007] QCA 31528 Sep 2007Further orders from 5 April 2007; successful parties seek order that costs assessment be dealt with in Cairns instead of Brisbane; application for change of venue granted: Keane and Holmes JJA and Douglas J.

Appeal Status

Appeal Determined (QCA)

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