Re Lee[2023] QSC 53

SUPREME COURT OF QUEENSLAND

1. [1]
   HENRY J: Victor Wee-Kah Lee died on the 21^st of September 2021.  He made a purported will on the 25^th of January 2019 appointing Shane Barnes as executor.  Shane Barnes renounced on the 18^th of November 2022.  The purported will was only signed by one witness, so it was not properly executed.  The purported will gives the personal representative powers to deal with estate property, getting property in and paying debts, but does not bequeath the residue of the estate to any named beneficiaries.  The result appears to be intestacy as regards to disposition of the estate remaining after getting it in and settling debts.  Under the intestacy rules, the two applicants are entitled to the whole of the estate in equal shares.
2. [2]
   The applicant children, who are brother and sister and the children of the deceased, make two applications.  One is for a grant of “letters of administration with the will of the above deceased dated 25 January 2019 to be granted” to them as administrators.  That application is uncontroversial insofar as the children are apt to appointment as administrators.  They are the entitled beneficiaries on intestacy and, on the available information, hold priority as applicants for a grant pursuant to rule 693 Uniform Civil Procedure Rules 1999 (UCPR). 
3. [3]
   However, the application seems to tie the grant as relating to the will rather than in contemplation of a grant of letters of administration on intestacy.  This aspect heralds a difficulty which can be immediately exposed by consideration of the other application before me.  That is an application pursuant to s 18 Succession Act 1981 for an order that the purported will of the 25^th of January 2019 form a will of the deceased. 
4. [4]
   Section 18 is commonly enough deployed by the Court in circumstances where there has been a failure to meet execution requirements relating to a purported will that the Court is satisfied the testator or testatrix intended to form his or her will.  However, as I explained in Re Marshall (Deceased) [2020] 4 QR 321, s 18(1)(a) contains a threshold requirement that s 18 only applies to a document or part of a document that “purports to state the testamentary intentions of a deceased person”.  As with the purported will in Re Marshall, the present purported will does no such thing.  It gives no indication at all of how the residue of the estate remaining after the payment of estate debts should be distributed or to whom.  It follows an essential prerequisite for the potential enlivening of s 18 is not met by the purported will and that the s 18 application must be dismissed. 
5. [5]
   I record for completeness that the filed evidence includes a deed of family arrangements between the applicants and their uncle, the deceased’s brother, Wee Bin Lee.  They therein agree the purported will of 25 January 2019 contains a gift of 50 per cent of the defendant’s interest in a residential property and agree on a grant of letters of administration with the will to administer the estate, distributing the aforesaid 50 per cent interest to the deceased’s brother and the residue going to the applicants equally. 
6. [6]
   That agreement cannot bind the Court by its reference to the essentially fictitious gift of the 50 per cent interest in the residential property.  There is no reference whatsoever to that in the purported will before me.  In any event, the agreement of course cannot bind the Court in respect of the s 18 application.  Most particularly, it cannot overcome the absence of the critical threshold requirement for the potential application of s 18, namely, that the relevant document purports to state the testamentary intention of a deceased person. 
7. [7]
   Having explained why the s 18 application must fail, I return to the application for letters of administration.  It will be recalled it seeks the grant of such letters as relating to the purported will but, for reasons I have explained, that purported will of 25 January 2019 cannot be regarded as a will of the deceased. 
8. [8]
   It appears appropriate to consider the making of a different form of order in respect of the application, namely, an order granting letters of administration on intestacy.  There are, however, difficulties presenting themselves today in me resolving the matter by considering the application in that way.  The first is that the applicants are not before me.  I note that the application pursuant to s 18 contains an inclusion proposing the application be decided without an oral hearing.  Respectfully, it was not an appropriate matter to be decided without an oral hearing.  Another difficulty and one that really highlights the inappropriateness of it being decided without an oral hearing is a deficiency in the materials before me for the purpose of considering whether I ought grant an application for letters of administration, albeit one for letters of administration on intestacy as opposed to in connection with the will. 
9. [9]
   I cannot detect, at least cannot do so without the aid of legal representatives before me, anywhere in the materials where there is clear evidence that the deceased did not have some earlier will.  Further, it is not entirely clear on the materials whether there exist any other potential beneficiaries on intestacy, specifically any other siblings.  Further, there may be reasons why Wee Bin Lee, a party to the deed I have mentioned, wishes to be heard in the application in the light of the findings I have made to date.  For all of these reasons, I propose to adjourn the continued hearing of the application for letters of administration, making appropriate directions. 
10. [10]
    Before doing so, I record for completeness that it may have been the applicants’ intention that I only hear the s 18 application.  It may have been they considered it would succeed and they could then revert to the Registrar in respect of their application for letters of administration.  Given the way in which I have approached the matter, it is appropriate that the hearing continue before me in order for me to resolve the application for letters of administration on proper materials. 
11. [11]
    My orders are:

3. 1.
   The application for an order pursuant to s 18 Succession Act is dismissed.

3. 2.
   The application for letters of administration with the will is adjourned to 9.15 a.m. on 1 March 2023 with it being allocated 10 minutes in the list.

3. 3.
   On receipt of the revised transcript of today’s hearing, I order the Registrar forward a copy thereof to the legal representatives of the applicants.

3. 4.
   I order the Registrar notify the legal representatives of the applicants of the orders just made.