Hoult v Denschel[2024] QSC 318

SUPREME COURT OF QUEENSLAND

1. [1]
   The deceased, Alison Robertson Hoult (Alison), made various wills during her lifetime, relevantly one dated 14 January 2019 (the 2019 Will) and one dated 19 March 2021 (the 2021 Will).
2. [2]
   The applicant, Frederick Leigh Richard Hoult (Frederick), sought a grant of probate in relation to the 2019 Will and in the alternative, the making of directions and other ancillary orders sought to facilitate a contested hearing as to which will prevails. 
3. [3]
   Alison had three children:  Frederick, Kathleen Alison Wright (Kathleen) and Frank Keith Hoult (Frank).
4. [4]
   Alison was estranged from both her son, Frank, and her daughter, Kathleen, and had been so estranged for decades prior to her passing.
5. [5]
   Frederick married Patricia Marcia Hoult (Patricia), but they are no longer married.
6. [6]
   By the 2019 Will Alison:

   1. appointed a solicitor, Ben Michael Webster, as executor, and in default a partner of the firm of solicitors, Gleeson Klein Stegeman Lawyers (GKS Lawyers), and in default Patricia; and
   2. gave the whole of her estate to Frederick, but if he did not survive her then to Patricia.
7. [7]
   By the 2021 Will Alison:

   1. appointed the respondent, Peter Denschel, as executor and trustee; and
   2. left the whole of her estate to Mr Denschel.
8. [8]
   The main asset of Alison’s estate is a house at 1 Caribbean Court, Deception Bay.  Otherwise there were two cars, some other chattels and two bank accounts held with the Great Southern Bank.  The full details of any liabilities are not known, but the major liability is probably a debt to the Commonwealth Bank of Australia for about $265,000.
9. [9]
   Frank commenced living with Alison at the house in about 2011.  After he struck up a relationship with Patricia in 2015, she also began living at the house.  The applicant and Patricia married in 2017, and continued to live with Alison.
10. [10]
    While living at the house, Patricia introduced Alison to Mr Denschel.  He lived close by in a relocatable home.  Over time Alison and Mr Denschel became friendly.
11. [11]
    From 2020 Alison became isolated.  She would not leave the house.  She became less likely to communicate with Frederick and became reliant upon Mr Denschel.  On or about 5 January 2021, Mr Denschel told Frederick that Alison had said she did not want him (Frederick) at the house and was going to throw him out.  This was despite the fact that there had been no animosity between Frederick and Alison.
12. [12]
    Eventually Mr Denschel informed Frederick and Patricia that they had to leave the property, as that was Alison’s wish.  Mr Denschel refused to allow Frederick to speak to Alison.
13. [13]
    On 17 January 2021, Frederick and Patricia left the house.
14. [14]
    The 2021 Will was, as already observed, made on 19 March 2021.  That was a mere 21 days before Alison’s death on 9 April 2021 at the age of 82 years.
15. [15]
    Mr Denschel presently lives in the house.
16. [16]
    Alison’s death certificate states as the cause of death “1. Metastatic ovarian cancer. 2. Type 2 diabetes, mild cognitive impairment”.  The informant is shown as “Peter Denschel, Executor, 1 Caribbean Court, Deception Bay”.
17. [17]
    No steps have been taken by Mr Denschel in administration of the estate pursuant to the 2021 Will.  No application for a grant of probate has been made.  No advertisement of his intention to apply for probate of the 2021 Will has been published.  The house remains in the name of Alison and a caveat has been lodged on the title by Frederick claiming an interest as beneficiary under a constructive trust based on his contributions to the improvement and upkeep of the house.
18. [18]
    On 27 September 2023, Frederick filed an application for family provision pursuant to s 41(1) of the Succession Act 1981.  That was served on Mr Denschel on 28 September.  Mr Denschel advised by email on 9 October 2023 that he intended to seek legal advice about the application, but nothing further has been heard from him despite inquiries being made of him by email dated 17 November 2023. 
19. [19]
    The 2021 Will had been drawn within the Office of the Public Trustee Queensland.  Communications flowed between Frederick’s solicitors and the Office of the Public Trustee.  Requests for disclosure of file notes in relation to the taking of instructions from Alison was refused by the Public Trustee, who has advised that all documentation was released to Mr Denschel.
20. [20]
    The present application was filed on 25 October 2024.  It seeks various relief in the alternative as follows:

1. “1.
   That the Court pronounce for the force and validity of the last Will of Alison Robertson Hoult (“the deceased”) dated 14 January 2019 (“the 2019 Will”).

1. 2.
   That the Court pronounce against for the force and validity of the last Will of the deceased, dated 19 March 2021 (“the purported 2021 Will”).

1. 3.
   Pursuant to section 6 of the Succession Act 1981 (Qld) (“the Act”) a grant of probate of the 2019 Will be granted to the applicant subject to the formal requirements of the Registrar.

1. 4.
   Pursuant to section 6 of the Act, by 4pm 6 December 2024

1. a.
   The respondent is to vacate and deliver up to the applicant possession of the property situated at 1 Caribbean Court, Deception Bay (“the property”);

1. b.
   The respondent is to remove all his possession from the property;

1. c.
   The respondent is to leave the property in a clean and tidy manner for the applicant;

1. d.
   The respondent is to deliver all keys in his possession to the applicant’s solicitors at GKS Lawyers, Level 2, 19 Creek Street, Redcliffe, Qld, 4020.

1. 5.
   Further and or in the alternative directions as to the conduct of solemn form proceedings including that:-

1. i.
   The respondent file a claim and statement of claim seeking to prove the purported 2021 Will in solemn form within 28 days.

1. 6.
   Further and or in the alternative:-

1. a.
   Pursuant to section 6 of the Succession Act 1981 (Qld) and rule 638 of the Uniform Civil Procedure Rules 1999 (Qld) that, subject to the formal requirements of the Registrar, Letters of Administration for the estate of the deceased be granted to Robert John Lamb (“the Administrator”), limited to:

1. i.
   Taking possession of and preserving the assets of the estate;

1. ii.
   Collecting in and realising estate assets;

1. iii.
   Selling for market value the property;

1. iv.
   Paying the debts of the estate;

1. v.
   Paying the legal fees and the remuneration of the Administrator;

1. vi.
   Doing all things necessary and having all powers that a legal personal representative has under the Succession Act 1981 (Qld) and the Trusts Act 1973 (Qld), except that the Administrator cannot distribute the estate;

1. vii.
   Until further Order of the Court.

1. b.
   The requirement for advertising and notice be dispensed with pursuant to rule 598(4) of the Uniform Civil Procedure Rules 1999 (Qld).

1. c.
   Pursuant to section 6 of the Succession Act 1981 (Qld), within 14 days the parties deliver to the Administrator all documents, chattels or other property belonging to the said deceased or relating to the administration of his estate which are in their possession or under their control.

1. d.
   Pursuant to section 114 of the Land Title Act 1994 (Qld) Robert John Lamb as Administrator of the estate of Alison Robertson Hoult deceased be registered as proprietor of any property belonging to the deceased.

1. e.
   Pursuant to sections 6 and 68 of the Succession Act 1981 (Qld), section 101 of the Trusts Act 1993 (Qld), and rule 638(5) of the Uniform Civil Procedure Rules 1999 (Qld) that the remuneration of Robert John Lamb as Administrator of the estate of Alison Robertson Hoult, deceased be assessed by an independent cost assessor on the Supreme Court Scale on the indemnity basis as varied from time to time and paid at approximately two-month intervals and upon completion of administration.

1. f.
   Pursuant to section 6 of the Succession Act 1981 (Qld) that Robert John Lamb as Administrator of the estate of Alison Robertson Hoult, deceased be authorised to retain Hillhouse Legal Partners to act on their behalf in the administration of the deceased’s estate and to pay Hillhouse Legal Partners their usual professional and business charges for so acting.

1. g.
   Robert John Lamb as Administrator of the estate of Alison Robertson Hoult has liberty to apply upon 3 days notice.”^[1]

21. [21]
    The application seeks by way of primary relief:

    1. the pronouncement of the 2019 Will as against the 2021 Will;^[2]
    2. a grant of probate of the 2019 Will to Frederick;^[3] and
    3. orders against Mr Denschel to deliver up the house.
22. [22]
    In the alternative, and in the circumstances where the Court is not prepared to pronounce the validity of the 2019 Will, Frederick seeks directions effectively forcing Mr Denschel to attempt to prove the 2021 Will.^[4] 
23. [23]
    By way of further alternative, Frederick seeks the grant of letters of administration to a solicitor, Robert John Lamb, limited to, in effect, bringing in the estate assets.^[5]
24. [24]
    The appointment of Mr Lamb as administrator is only sought if the primary relief is not granted.
25. [25]
    After hearing submissions on 19 November 2024, it appeared to me that the application for probate in favour of Frederick ought to be an application for letters of administration.  He is not named as an executor in the 2019 Will, but the named executors have both renounced all right to administration.  The matter was mentioned on 13 December 2024 and counsel for Frederick confirmed that letters of administration are sought. I will proceed on the basis that what is sought is the grant of letters of administration to Frederick.  He is the residual beneficiary under the 2019 Will and as there is no other party in priority to him,^[6] he is prima facie entitled to a grant of administration.
26. [26]
    The application (and all supporting material) was served upon Mr Denschel on 6 October 2024. As already observed, the application came before me on 19 November 2024.  Service upon Mr Denschel was proved to my satisfaction.  He made no appearance.
27. [27]
    The central question is whether there is a necessity for a trial in circumstances where Frederick propounds the 2019 Will, and Mr Denschel does not propound the 2021 Will despite having been given an opportunity to do so.
28. [28]
    There is authority which establishes the proposition that the grant of probate in solemn form is an adversarial, not inquisitorial, process^[7] and that authority has been followed consistently.^[8]
29. [29]
    In Re Levy Deceased (No 2)^[9] 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”. Later his Honour 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”.^[10]  It follows then that an executor of a will is under no obligation to disprove the validity of a later will which purports to revoke the will propounded.^[11] 
30. [30]
    Here Frederick seeks to propound the 2019 Will.  No one seeks to propound the 2021 Will.  Mr Denschel has been served with the current application and he has chosen not to challenge the 2019 Will.  The evidence of Frederick in his affidavit raises issues as to undue influence and capacity in regards to the 2021 Will. Mr Denschel had the opportunity to put on evidence before me supporting the validity of the 2021 Will if he chose to do so.  He did not.
31. [31]
    If directions were now made that Mr Denschel deliver a statement of claim in support of the 2021 Will, I would be effectively directing Mr Denschel to dispute the 2019 Will by propounding the 2021 Will.  The Court’s function is to arbitrate disputes, not to create disputes between citizens.  Mr Denschel has, since Alison’s death, shown no interest in establishing the validity of the 2021 Will.  When the 2021 Will was challenged by Frederick’s application to have the 2019 Will pronounced as valid, he did not engage.
32. [32]
    The 2019 Will appears valid on its face.  I can see no reason why I would not follow the body of authority that I have identified.  In the absence of any higher authority I should follow it.

Conclusions

33. [33]
    Letters of administration of the 2019 Will ought to be granted to Frederick.  The force and validity of the 2019 Will ought to be pronounced which effectively pronounces against the force and validity of the 2021 Will.  Frederick, being the administrator of Alison’s estate, should have possession of the house.  It is fair to give Mr Denschel a month to vacate. 
34. [34]
    Mr Denschel should pay the costs of the application. He asserted that he was the executor of the estate.^[12] Then he took no action to prove the 2021 Will. This application was only necessary because he did not communicate with Frederick’s solicitors. He could have told them that he did not seek to prove the 2021 Will.

Orders

1. 1.
   It is declared that the last valid will of Alison Robertson Hoult (“the deceased”) is the will dated 14 January 2019 (“the 2019 Will”).

1. 2.
   A grant of letters of administration with the 2019 Will is made to the applicant subject to the formal requirements of the Registrar.

1. 3.
   By 4 pm on 24 January 2025:

1. a.
   the respondent is to vacate and deliver up to the applicant possession of the property situated at 1 Caribbean Court, Deception Bay (“the property”);

1. b.
   the respondent is to remove all his possessions from the property;

1. c.
   the respondent is to leave the property in a clean and tidy manner for the applicant;

1. d.
   the respondent is to deliver all keys in his possession to the applicant’s solicitors at GKS Lawyers, Level 2, 19 Creek Street, Redcliffe, Qld, 4020.

1. 4.
   The applicant’s costs of this application be paid from the deceased’s estate on the indemnity basis.

1. 5.
   The respondent reimburse the deceased’s estate the applicant’s costs of this application in paragraph 4 above.