Sullivan v Sullivan[2025] QSC 20

SUPREME COURT OF QUEENSLAND

1. [1]
   This is an application by Terrence Sullivan,^[1] a beneficiary under the will of Jacalyn Jay Sullivan for the revocation of probate granted to Holly Anne Sullivan.

Background

2. [2]
   Terrence, Holly and Todd Jay Sullivan (Todd junior) are siblings and are the children of Jacalyn and Todd Paul Sullivan (Todd senior).
3. [3]
   On 15 October 2019 each of Jacalyn and Todd senior made a will (the 2019 wills).  They were simple wills where each appointed the other to be their executor and left their estate to the survivor.  Each will provided that if the maker was the survivor then the executors should be Terrence and Holly jointly and the estate left to the three siblings in equal shares.
4. [4]
   On 27 September 2023 Todd senior died.  There is no dispute that his last will is his 2019 will.
5. [5]
   On Christmas Day 2023, about two months after Todd senior’s death, Jacalyn made a new will.  Holly and Kevin Murphy (a family friend) are appointed executors by the terms of the 2023 will.
6. [6]
   On 11 February 2024, some seven weeks after making the 2023 will, Jacalyn died.  There is no evidence of her having made any testamentary instrument after 25 December 2023.
7. [7]
   Mr Murphy renounced his executorship of the 2023 will, leaving Holly as the sole executor.  She was granted probate in common form on 12 July 2024.  Holly has purported to administer both Jacalyn’s estate and the estate of Todd senior.  By a consent order made on 22 October 2024, at a time when Holly was legally represented, she was required to provide an inventory of the two estates, including details of the steps she had taken in their administration.  She has produced an inventory which is the subject of some criticism, including that it does not distinguish between the two estates.  Given that, by the 2019 will, Todd senior left the entirety of his estate to Jacalyn this might not be an error of real significance.
8. [8]
   Other issues have emerged.  Terrence disputes the validity of the 2023 will.
9. [9]
   The principal asset of Jacalyn’s estate is a house at Mount Nathan and it is not contentious that the house must be readied for sale and sold.

The present application

10. [10]
    Terrence seeks an order formally correcting the description of the first respondent in the proceedings to “Holly Anne Sullivan in her personal capacity” in lieu of “Holly Anne Sullivan as executor of the estate of the late Todd Paul Sullivan”.  This is not contentious and nothing more need be said of it.  That order will be made.
11. [11]
    Terrence seeks an order pursuant to r 640 of the Uniform Civil Procedure Rules 1999 (UCPR) that:

    1. Holly bring the grant of probate into the Registry; and
    2. she commence an application for probate of the 2023 will in solemn form.
12. [12]
    Alternatively, Terrence seeks:

    1. the revocation of the grant of probate;
    2. the removal of Holly as executor;
    3. the appointment of a solicitor, Prudence Poole, as administrator of the estates of both Jacalyn and Todd senior; and
    4. associated orders to perfect the revocation of the grant of probate and the appointment of Ms Poole.
13. [13]
    The appointment of Ms Poole is sought as an alternative to orders under r 640.  However, it is clear from the written outline and the oral submissions that the appointment of Ms Poole is sought in addition to any orders which might be made under r 640, even if the probate is not revoked.
14. [14]
    As already observed, the grant of probate made to Holly of the 2023 will was made in common form.  For reasons explained below, a central issue is whether Terrence has thrown sufficient doubt upon the validity of the 2023 will to justify orders being made under r 640 of the UCPR which provides:

“640Proof in solemn form

1. If the court has made a grant in common form of probate or of administration with the will, any person who claims to have a sufficient interest in the administration of the estate may apply to the court for an order for the personal representative to bring the grant into the registry.
2. However, the court must not make the order unless it is satisfied the applicant has an interest in the administration of the estate, or a reasonable prospect of establishing an interest in the administration of the estate.
3. If the court orders the personal representative to bring the grant into the registry, the court may also give the directions the court considers appropriate, including directions about the persons to be made parties to the proceeding and about service.
4. As soon as practicable after the court makes an order under this rule, the personal representative must start a proceeding for a grant in solemn form.”

The terms of the 2023 will

15. [15]
    Unlike the 2019 wills, the 2023 will is complicated.  It establishes three discretionary trusts:

    1. the Holly Anne Sullivan Testamentary Discretionary Trust^[2] (the Holly trust);
    2. the Todd Jay Sullivan Testamentary Discretionary Trust^[3] (the Todd junior trust); and
    3. the Terrence Paul Sullivan Discretionary Trust^[4] (the Terrence trust).
16. [16]
    There are two specific bequests.  Clause 2.1(2) provides:

“(2) I GIVE all of my jewellery that I own at the date of my death to my daughter HOLLY ANNE SULLIVAN provided she survives me by thirty (30) days, absolutely.”

17. [17]
    By clause 2.1(3):

“(3) I GIVE the sum of FORTY THOUSAND DOLLARS ($40,000.00) from the remainder of my estate to my Trustees of the trust created under clause 4 of this SCHEDULE 1.”

18. [18]
    The trust which is “created under clause 4 of … SCHEDULE 1”^[5] is the Todd junior trust.
19. [19]
    The remainder is divided into three equal shares.  One-third of the remainder is then vested upon each of the three trusts.
20. [20]
    The primary beneficiary of the Holly trust is Holly.^[6]  The primary beneficiary of the Todd junior trust is Todd junior^[7] and the primary beneficiary of the Terrence trust is Terrence.^[8]
21. [21]
    The beneficiaries of the Holly trust, other than the primary beneficiary (Holly), are described as:

“(3)‘the secondary beneficiaries’ means any natural and/or lawfully adopted child of the primary beneficiary excluding step children;

4. ‘the tertiary beneficiaries’ means: -

1. any natural and/or lawfully adopted child of the persons in clause 3.2(3) of this SCHEDULE 1 above but not a step child;

2. any other trust or private corporation in which any of the primary beneficiary or secondary beneficiaries may have an entitlement or an interest.

5. ‘the beneficiaries’ – any one or more of the primary beneficiary, secondary beneficiaries and tertiary beneficiaries.”

22. [22]
    Identical provisions apply to each of the other two trusts except that Charlotte Draper is specifically excluded from the class of secondary beneficiaries of the Todd junior trust.
23. [23]
    Holly is, jointly with Gisela Brittain, made both the appointor and trustee of the Holly trust.  Holly is made the sole trustee and appointor of each of the Todd junior trust and the Terrence trust.
24. [24]
    Schedule 2 of the will prescribes the terms of the testamentary trusts.
25. [25]
    Clause 5 of Schedule 2 provides:

“5 Appointor

5.1 The Appointor(s) may by unanimous resolution and instrument in writing remove any trustee and appoint a new trustee of the Trust.

5.2 The Appointor may only appoint their respective successor on their retirement but any Appointor is entitled to retire on the giving of written notice to the Trustee and to the remaining Appointor (if applicable) which notice is to include the full name and address of their replacement and attaching the new Appointor’s written consent.  The retirement and appointment of the new Appointor is effective as at and from the date of their written consent and notice.”

26. [26]
    Clause 8 of Schedule 2 identifies the beneficiaries as:

“8 Beneficiaries of the trust

8.1 The primary beneficiary of the trust is a beneficiary of the trust.

8.2 The potential beneficiaries of the trust are the following persons, whether alive at my death or coming into existence thereafter;

(1) the secondary beneficiaries;

(2) the tertiary beneficiaries; or

(3) a charity or charitable or religious entity.”

27. [27]
    The primary purpose of each trust is:^[9]

“7 The primary purposes of the trust

7.1 The primary purposes for which my trustees hold the Fund on trust are directly or indirectly to provide for or promote the maintenance, education (including travel to broaden the mind), advancement or benefit of a beneficiary or beneficiaries; and to give to my trustees the widest possible discretion in using their powers in carrying out those purposes.  The purposes of the trust as stated in this clause are to be read in their general meaning, and in no way limit the discretion of my trustees to decide from time to time whether or not to provide a benefit or benefits to any beneficiary.  I emphasise that there is no obligation on my trustees ever to provide a benefit of any kind, to or for any beneficiary.” (emphasis added)

28. [28]
    Clause 9 of Schedule 2 gives the trustee of each trust powers of investment which are effectively unfettered.  Clause 10 of Schedule 2 gives wide powers to the trustee, including:

“(a)retain all or part of the capital and accumulate all or part of the income of the fund, up to the period of time permitted by law;

2. refrain, temporarily or permanently, from distributing or providing income, capital or other benefits from or relating to the Fund, to any one or more or all my beneficiaries;

3. deal with all property in the fund in any way that my trustees choose as if my trustees were the absolute and beneficial owner or owners of the Fund;”

29. [29]
    Holly must act within the terms of the trusts and is bound, in exercising her discretionary powers, to observe the purpose of each of the trusts.^[10]  There is a provision which applies to each trust which requires her to have regard to the wishes of the beneficiaries.  Clause 3.3 concerns the Holly trust but identical provisions also apply to the Todd junior trust and the Terrence trust:

“3.3 I direct the Trustee(s), in exercising their powers under the Trust, to have regard to the wishes of the beneficiaries.  This is subject to the express terms of the Trust and any relevant principle of trust law.”

30. [30]
    Nothing in the 2023 will requires the trustee of any of the trusts to follow the wishes of any beneficiary.  The trustee must just consider their wishes.
31. [31]
    Clause 3.3 and its equivalents are expressed to be “subject to the express terms of the trust” which include Clause 7 of Schedule 2, which expressly contemplates that the trustee may conclude that no benefit is ever paid to any of the beneficiaries. 
32. [32]
    While s 8 of the Trusts Act 1973 gives jurisdiction to this Court to review any decision on exercise of power by a trustee upon the application of a discretionary beneficiary,^[11] the circumstances in which the Court will interfere in a trustee’s exercise of discretion are narrow.^[12]

Practical effect of the 2023 will

33. [33]
    By Jacalyn’s 2019 will, her estate was to be divided into three equal parts.  One of those parts was to vest beneficially upon each of the three siblings.  By the 2023 will each part vests in discretionary trusts of which Holly is either the sole trustee (the Todd junior trust and the Terrence trust) or is trustee with Ms Brittain (the Holly trust).
34. [34]
    The 2023 will does not name Terrence as an executor or trustee of the estate.  Holly remains as executor and trustee but is paired with Mr Murphy, not Terrence.  As already observed, Mr Murphy has renounced, leaving Holly as the sole trustee and executor.
35. [35]
    While the 2019 will divides the entire estate equally between the siblings, the 2023 will makes specific bequests to Holly (personal effects) and the Todd junior trust ($40,000).  The 2023 will also records a debt said to be owed by Terrence to the estate.  That is not mentioned in the 2019 wills. This debt is contentious.
36. [36]
    Terrence and Todd junior are the primary discretionary beneficiaries under the Terrence trust and the Todd junior trust respectively.  As already observed, there are other classes of beneficiaries.  A member of a class of beneficiaries to whom a trustee may, in exercise of discretion, appropriate capital or income has no vested interest in either the capital or income and has no legal or beneficial interest in any property or income of the trust until a favourable exercise of discretion is made.^[13]  As observed by Lord Reid in Gartside v Inland Revenue Commissioners:^[14]

“… but a right to require trustees to consider whether they will pay you something does not enable you to claim anything.  If the trustees do decide to pay you something, you will not get it by reason of having the right to have your case considered; you get it only because the trustees have decided to give it to you.”^[15] 

37. [37]
    The effect then of the 2023 will is that the one-third share in the estate nominally assigned to each of Terrence and Todd junior will only fall to their benefit at the complete discretion of Holly.  Until a favourable exercise of discretion is made, Terrence and Todd junior have nothing more than a right to due administration of the respective trusts according to their terms.  As already observed, it is generally difficult to challenge a trustee’s exercise of discretion.^[16]

Holly’s email of 18 December 2024

38. [38]
    At 1.50 pm on 18 December 2024, after the application had been heard and judgment reserved, Holly sent an email to my Associate which was copied to Ms Brewer and her instructing solicitor.  In the email Holly raised a number of issues:

    1. she wishes to swear an affidavit for consideration on the application;
    2. if it is contemplated that Ms Poole is to be appointed administrator of the estates, Holly wishes to nominate an alternative;
    3. Ms Poole “does not care for the best price in liquidation of my parents’ property”, and therefore it is inappropriate for Ms Poole to be appointed administrator;
    4. the appointment of Ms Poole is an unnecessary cost for the estates; and
    5. there is no evidence of incapacity because Terrence, and his solicitors, have no medical expertise and are not qualified to express an opinion on capacity.
39. [39]
    It is appropriate to proceed to decide the application without hearing further from Holly.
40. [40]
    Holly has had ample opportunity to put on material in answer to the application.  She was legally represented initially and therefore had the opportunity to obtain advice as to how to handle the application.  Further, the principal relief which is sought is that under r 640.  As will be explained, the present application is not the occasion for a final determination of the validity of the will.  The primary consideration is whether a triable issue has been raised and, in my view, that has clearly been done. 
41. [41]
    Holly has also had opportunity to put forward an alternative to Ms Poole as administrator.  For reasons which I will explain, it is appropriate to appoint an interim Administrator and, in my view, that interim Administrator ought to be a legally‑qualified person.  Ms Poole is qualified and experienced in the practice of estates law and there is no suggestion of any ethical reason, such as a conflict of interest, to prevent her from being appointed.
42. [42]
    I reject the submission that Ms Poole does not care to obtain the best price for the Mount Nathan property.  By assuming the position as administrator, Ms Poole assumes the burden of fiduciary obligations and there is no reason to think that she will not discharge those obligations.
43. [43]
    The question of costs to the estate of the appointment of an administrator is a relevant consideration.  However, Holly made submissions in that regard during the hearing.
44. [44]
    True it is that neither Terrence nor his legal advisors have been shown to have any particular medical knowledge.  None of those people purported to express a medical opinion.  Terrence and his wife gave evidence of what they saw when they visited Jacalyn and from that evidence an inference can be drawn as to doubts about Jacalyn’s capacity. 

Relief under rule 640

45. [45]
    Practice in probate matters was developed by the Court of Probate in England.  By s 8 of the Probate Act 1867 (Qld) the English practice was adopted here.  Section 70 of the Succession Act 1981 continues that practice, at least to the extent that there are no statutory modifications.
46. [46]
    Longstanding probate practice draws a distinction between a grant of probate in common form and a grant in solemn form.^[17]  The grant in common form is effected administratively by the Registrar who must be satisfied that the will appears on its face to be validly executed and the formal requirements of the rules such as advertising etc. have been fulfilled.^[18]  A grant of probate in solemn form is the result of judicial determination of the validity of the will.^[19]
47. [47]
    Grants in common form are appropriate where there is no contention as to the validity of the will.  An application for a grant in solemn form should be made when the validity of the will is contentious and proceedings, concluding in a judicial determination, are necessary to quell the controversy.  As succinctly stated by the authors of Lee’s Manual of Queensland Succession Law:^[20]

“A common form application is based on the assumption that there is no litigable issue arising respecting the admission of the will to probate …”^[21]

48. [48]
    A controversy as to the validity of a will may arise either before or after a grant of probate in common form has been made.  It is well established that an executor who has the benefit of a grant of probate in common form may apply for a grant in solemn form.^[22]  An executor will most commonly take such a course where they are concerned that an interested party may attack the validity of the will and the executor seeks the protection of a grant in solemn form where the other parties are bound by the Court’s findings.^[23]
49. [49]
    Rule 640 prescribes a procedure where a party (other than the executor) may challenge a will notwithstanding that probate in common form has been granted.  Here, Terrence seeks to attack the 2023 will upon the allegation that Jacalyn did not have capacity to make the will^[24] or that she has not approved its contents.^[25] 
50. [50]
    Holly has the benefit of a common form grant.  Terrence seeks the exercise of discretion under r 640 in his favour and, at least to that extent, bears the burden of persuasion.  However, Holly, as the party propounding the 2023 will, bears the onus of proving capacity, knowledge and approval.^[26] 
51. [51]
    The effect of r 640 is that the Court may order a suspension of the authority of the executor by requiring the executor to bring the grant into Court, and requiring the will to be proved in solemn form before probate is granted of it.  The rule is, though, silent as to the considerations which are relevant to the exercise of discretion to order that the grant of probate be brought into Court.
52. [52]
    In Aronis v Aronis & Ors,^[27] Holmes CJ considered various authorities where r 640 and its predecessor, O 71 r 82 of the Rules of the Supreme Court had been considered.  As observed by her Honour, Power J in Re H.,^[28] thought that all that was necessary was a claim of invalidity by an interested party.  The Court then, his Honour considered, was bound to order that the common form grant of probate be brought into Court. 
53. [53]
    Her Honour identified some cases, which suggested that before such an order is made, there must be “clear evidence” of incapacity or other invalidity.^[29]  Some cases her Honour noted required the demonstration of a “triable issue”.^[30] 
54. [54]
    After analysing the authorities, her Honour expressed a preference for the “triable issue” approach without, with respect, explaining why.  Her Honour merely stated:

“The present application seems to me properly to be decided according to a less stringent standard, and I am content to adopt the “triable issue” test … while recognising that, depending on the circumstances, other considerations may be relevant to the exercise of the discretion.”^[31]

55. [55]
    In Re Uscinski^[32] Copley J took the triable issue approach in reliance upon Aronis v Aronis.  I agree for the reasons which follow that a powerful consideration will be whether a triable issue as to the question of validity of the will has been established.
56. [56]
    Except where, on a proper construction of the statute vesting the discretion, some considerations are excluded or some are mandatory, the considerations relevant to the exercise of discretion are those which the decision maker considers relevant.^[33]  Rule 640, on its face, leaves the discretion at large.  There are no express fetters to the discretion and no expressly prescribed considerations relevant to its exercise.  However, no judicial discretion is unfettered.  Its exercise is confined to the attainment of the objects for which the power has been granted.^[34]  The ascertainment of purpose is a question of construction of the rule and that requires the determination of the meaning of the words used taken against relevant context, which includes historical context.^[35]
57. [57]
    As previously explained, the point of a proceeding seeking a grant of probate in solemn form is to determine the validity of the will where validity is doubted.  In the absence of evidence of a prospect of the will being invalid, it is pointless to require the will to be proved in solemn form.  There may be many different considerations which are relevant to the exercise of discretion under r 640 in particular cases and each case will turn on its merits.  However, given the obvious purpose of r 640 discerned against a long history of probate practice, it would in my view be a rare case where the discretion under r 640 was exercised in favour of a challenging party who did not adduce evidence of a triable issue on some question affecting the validity of the will.  Further, there may be cases where factors exist which lead to the exercise of discretion against the challenging party even though that party shows a triable issue as to validity of the will.  Those cases, though, might be rare.
58. [58]
    Here, for reasons that I will now explain, there is evidence which strongly raise questions as to the validity of the will which ought to be determined upon proceedings for a grant of probate in solemn form.  Firstly, there are doubts raised about Jacalyn’s capacity.  Secondly, doubts exist as to whether Jacalyn knew and accepted the terms of the 2023 will as reflecting her testamentary intentions.  There is no reason, given that the validity of the 2023 will has been thrown into question, to deny Terrence the relief sought under r 640.

Capacity

59. [59]
    There is ample evidence giving rise to a triable issue as to the capacity of Jacalyn to make the 2023 will.  On Christmas Eve 2023, Jacalyn was admitted to hospital and underwent surgery to remove a blood clot from her brain.  This was necessary as she had suffered a stroke. 
60. [60]
    The next day, Terrence and his wife visited Jacalyn in the hospital.  They arrived at about 11 am and left about two-and-a-half hours later, at approximately 1.35 pm.  Over the period of the visit, Terrence and his wife made various observations of Jacalyn.  Between them, they observed the following:

    1. one side of Jacalyn’s body was paralysed;
    2. she was unable to walk or move;
    3. she appeared confused; and
    4. she was slurring her words during conversation.
61. [61]
    The will was executed at about 2 pm, or about 25 minutes after Terrence and his wife left Jacalyn.
62. [62]
    The will was drawn by a solicitor, Ms Hughes.  As already observed, the will is a complicated document.  It is not, in my view, a document which a lay person, unassisted, would find easy to read, let alone an elderly person recovering from a stroke.  It incorporates various schedules whereby the trusts are established and the terms are specified.  That observation is not meant to be a criticism of Ms Hughes, and I can see good reasons as to why the 2023 will is structured the way it is.
63. [63]
    Apart from the will itself which shows that it was executed by Jacalyn before two witnesses, there is no evidence as to the circumstances in which the will was executed.  There is no suggestion of any lawyer being present.  A lawyer would be ethically obliged to:

    1. explain the nature of the document as a testamentary one;
    2. explain the terms of the document; and
    3. satisfy themselves of Jacalyn’s capacity.
64. [64]
    Consequently, there is evidence which casts doubt on Jacalyn’s capacity and a lack of evidence of any measures having been taken to ensure that she had testamentary capacity. 

Knowledge and approval

65. [65]
    The 2023 will is validly executed.  In the absence of some evidence that the will does not reflect a testator’s intentions,^[36] due execution will be taken as adoption of the contents of the will by the testator.^[37]
66. [66]
    Here there is ample evidence raising serious doubts as to whether Jacalyn had sufficient knowledge and understanding of the 2023 will to enable a conclusion that the will reflects her true intentions.
67. [67]
    As Holly submitted during the hearing of the application, instructions of the will were given to Ms Hughes on 22 November 2023, about a month before Jacalyn suffered the stroke.  It is one thing to say that Jacalyn gave instructions to a solicitor.  It is quite another to conclude that Jacalyn understood the terms of the will that was drafted pursuant to those instructions, or that the will ultimately drafted reflected her intentions.
68. [68]
    There is no evidence that Jacalyn read the will or had the will read to her.  There is no evidence that the terms of the will were explained to her.  There is no evidence explaining why Ms Hughes, who drafted the will, did not attend upon Jacalyn when the will was signed.  Solicitors attending upon an elderly, ill testator have ethical obligations to ensure, as far as reasonably possible, that the testator had both capacity to execute the will and an understanding of its contents.
69. [69]
    As previously explained, Terrence and his wife visited Jacalyn very shortly before the will was signed and they observed that she appeared vague and confused.^[38]  That state of affairs may have persisted for some time, as Ms Hughes’ note of her attendance upon Jacalyn to take instructions in November says, “Difficulty in filling out forms”. 
70. [70]
    A relevant consideration is whether there is a radical departure from earlier wills, especially where the person who benefits from the new will is in a position of influence over the testator.^[39] 
71. [71]
    Jacalyn, as observed, had three children.  The 2019 will was very “standard” in that it left the estate equally between the children.  The 2023 will is far from “standard”.  As I have explained, apart from some specific bequests, the will nominally divides the estate between the three children, but the effect of the testamentary trusts is that no beneficial interest is bestowed upon any of the children.  Holly, because she is one of the trustees of the Holly trust, has control of that part of the estate which falls to the Holly trust (nominally to Holly).   She has total practical control of the testamentary trusts created at least nominally for the benefit of her brothers. 
72. [72]
    There is nothing which explains why Jacalyn would put Holly in this state of supremacy over her two brothers.  At present, the only evidence which casts some light as to Jacalyn’s intentions behind the 2023 will is a note from Ms Hughes.  It says, “Testamentary trust – protect from siblings asking for funds from siblings”.  The creation of testamentary trusts might effect such a purpose.  Each of the siblings, if not in control of the funds left to them in the 2023 will, could not pay any of those funds to a sibling.  Similarly, a sibling seeking the funds would realise that the other sibling has no authority to pay it.  That logic does not explain the terms of the 2023 will by which Terrence and Todd junior may receive absolutely nothing from the estate if that is Holly’s wish.
73. [73]
    The evidence is such that an inference is open that Holly not only exercised significant influence over Jacalyn, but also was involved in the process which led to the production and ultimate execution of the 2023 will which by its terms gives her effective control of the estate.
74. [74]
    As already observed, Ms Hughes attended upon Jacalyn on 22 November 2023 to take instructions.  That conference occurred at the instigation of Holly who called Ms Hughes and explained that her mother wanted a new will and explained what her mother wanted to achieve.  Ms Hughes did not have direct contact with Jacalyn after 22 November 2023.  She took instructions from Holly.  Ms Hughes’ notes show that Jacalyn’s instructions given to her on 22 November 2023 were to the effect that Mr Murphy was to be joint trustee and appointor, with Holly, of the testamentary trusts which have become what I have described as the Terrence trust and the Todd junior trust.  It was Holly who gave Ms Hughes instructions to remove Mr Murphy as joint trustee and appointor of those trusts, leaving Holly as the sole trustee and consequently in effective complete control of the estate.
75. [75]
    In circumstances such as these, where instructions from an elderly and ill client are coming through a third party, who is a proposed beneficiary, a heavy onus falls upon the solicitor to ensure that the will reflects the testator’s true intentions.  Usually that onus would be discharged by the solicitor carefully explaining the terms of the will to their client at the time of execution.  It seems that Ms Hughes did not get that opportunity.  The circumstances which led to Jacalyn signing the will without the benefit of advice from Ms Hughes are unclear. 

The appointment of an interim administrator

76. [76]
    The administration of the estates is in a state of flux.  By force of the order to be made under r 640, the authority of Holly as executor and trustee will be suspended.  Further, there is doubt as to the validity of the 2023 will.  The 2023 will purports to revoke the 2019 will.  Apart from its revocation by the 2023 will, there is no doubt as to the validity of the 2019 will.  Consequently, if the 2023 will falls, the 2019 will shall prevail.
77. [77]
    The estates have not been administered.  Whether the 2019 will or the 2023 will prevails, it is necessary to market and sell the Mount Nathan property. 
78. [78]
    Section 6 of the Succession Act 1981 and r 638 of the UCPR authorise the appointment of an administrator, Pendente Lite, pending resolution of the proceedings for probate in solemn form.  It is inappropriate for the position to be left such that there is no person who has legal authority over the estate assets, pending resolution of the question of the validity of the 2023 will.
79. [79]
    It is appropriate to appoint an administrator.
80. [80]
    Terrence seeks the appointment of Ms Poole.  Holly submits that Ms Poole should not act as administrator.  Holly submits that would be too costly to the estate.
81. [81]
    There is significant dispute between Terrence and Holly.  Bank records show:

    1. the transfer of significant funds from Jacalyn’s accounts to Holly’s in the days leading up to Jacalyn’s death; and
    2. payment to persons from Jacalyn’s funds who are not beneficiaries under the 2023 will.
82. [82]
    After Jacalyn’s death, Holly travelled to America and delivered Jacalyn’s dog, Oliver, to relatives.  The expenses of that trip were paid from the estate.
83. [83]
    It is common ground that in April or June 2021 Holly borrowed $704,000 from Todd senior and Jacalyn.  The bank records show that about $33,712.90 has been repaid, but she asserts that it was all repaid.  Inquiries of Holly by Terrence’s solicitor have been met with the assertion that she is under no obligation to disclose how the monies were repaid.  At least on its face that response seems at odds with Holly’s obligations to administer the estate.
84. [84]
    The estate is not a big one and it would be desirable if the expense of an independent administrator could be avoided.  However, Holly and Terrence are both very much embroiled in the litigious battle as to which of the wills will prevail.  In those circumstances, it is advantageous for the estate to be administered by an independent third party.^[40]  Given that there is a valuable asset, namely the Mount Nathan property, in the estate and given that there are allegations of mismanagement by Holly, in my view, it is necessary to appoint a professional independent administrator pending resolution of the disputes between the parties.
85. [85]
    Both wills contemplate that the estate assets be liquidated, save that the 2023 will makes a specific bequest of Jacalyn’s jewellery to Holly.  It would be inappropriate for the administrator to sell the jewellery, as Holly may have an entitlement to it.
86. [86]
    It is appropriate to appoint Ms Poole as the administrator for limited purposes, namely:

    1. to bring in and secure all estate assets;
    2. to sell all estate assets, except the jewellery of Jacalyn Jay Sullivan;
    3. to prepare the property of the estate of Jacalyn Jay Sullivan at Mount Nathan for sale;
    4. to sell the property at Mount Nathan;
    5. to pay all debts of the estate; and
    6. to prepare accounts of the two estates.  

The appropriate orders

87. [87]
    For the reasons given, it is appropriate to order that Holly bring the original grant of probate into the Registry.  It is appropriate to appoint Ms Poole as interim Administrator. However, for reasons I will explain, it is not appropriate to revoke the grant of probate made to Holly at this stage. 
88. [88]
    Rule 640 clearly establishes an interim regime whereby the authority of the executor is suspended until questions of the validity of the will can be determined.  Even if the 2023 will is ultimately held to be valid, Holly may still be removed as executor.  However, in the exercise of discretion to remove an executor and trustee due regard should be had to the testator’s choice of executor, which should not be interfered with lightly.^[41]  If the 2023 will is valid, Jacalyn’s instructions were for Holly to be her executor.  Further, any proceedings as to the validity of the 2023 will may produce evidence relevant to whether Holly should be removed.
89. [89]
    The better course is to consider any question of revocation of the grant of probate to Holly of the 2023 will once the validity of the will has been determined and, if necessary, the allegations of misconduct by her have been considered in the course of the proceedings for a grant of probate in solemn form.
90. [90]
    For the reasons already given, Ms Poole should be appointed as interim Administrator, given the disharmony between the parties and the uncertainty attendant upon the estates because of the challenge to the 2023 will. 
91. [91]
    Rule 640, taken literally, compels Holly to commence an application for a grant of probate in solemn form of the 2023 will.  An application for probate is an adversarial process.  If Holly does not bring an application for probate of the 2023 will, Terrence will no doubt seek a grant of probate of the 2019 will.  If that occurs and Holly does not propound the 2023 will, then the 2019 will shall prevail without, necessarily, consideration of the validity of the 2023 will.^[42]  It is not, in my view, appropriate to order Holly to commence proceedings for a grant of probate in solemn form.  The role of the Court is to hear and determine cases, not order they be commenced.  If Holly does not commence proceedings in a timely fashion, Terrence may apply for the revocation of the grant of probate to Holly of the 2023 will.  Alternatively, as I have explained, he may simply seek probate of the 2019 will.
92. [92]
    During the hearing of the application I indicated to Ms Brewer, counsel appearing for Terrence, that it may be appropriate for Terrence to give an undertaking to commence an application for probate of the 2019 will, as that would bring the matter to a head.  That undertaking was given.  On reflection, the undertaking is unnecessary, and it is better for Holly to have some short time to consider her position.  Of course, Terrence may commence proceedings to propound the 2019 will at any time he sees fit.
93. [93]
    It is appropriate for orders to be made that the administrator’s costs of administration and Terrence’s costs of the application be paid from the estate.

Orders

94. [94]
    I make the following orders:

1. Pursuant to r 69 of the Uniform Civil Procedure Rules 1999, Holly Anne Sullivan in her personal capacity is substituted as the first respondent in lieu of “Holly Anne Sullivan as executor of the estate of the late Todd Paul Sullivan”.
2. The second respondent is to bring the original Grant into the Brisbane Registry of the Court by 4 pm on Monday, 24 February 2025.
3. A copy of this Order be placed on Probate File BS 7419/24.
4. Until further order, Prudence Poole (Administrator), solicitor, be appointed administrator of:

1. the estate of Jacalyn Jay Sullivan (deceased); and

2. the estate of Todd Paul Sullivan (deceased);

(the Estates), for the purposes of:

1. to bring in and secure all estate assets;

2. to prepare the property of the estate of Jacalyn Jay Sullivan at Mount Nathan for sale;

3. to sell the property at Mount Nathan;

4. to sell all other estate assets, except the jewellery of Jacalyn Jay Sullivan;

5. to pay all debts of the estate; and

6. to prepare accounts of the two estates.  

5. For the purposes prescribed in Order 4, the Administrator shall have all the powers of the personal representative under the Succession Act 1981 (Qld) (the Succession Act) and the Trusts Act 1973 (Qld) and at common law, except that no distributions from the Estates can be made without the consent of all parties, or further order of the Court.
6. All the assets comprising the Estates shall vest in the Administrator and the title to any real property in the name of either deceased vest in the Administrator.
7. Within fourteen (14) days of the date of the Order, the applicant and the first and second respondents shall deliver to the Administrator all documentation and information which is in their possession or control relating to the Estates, and the balance of any estate bank account or other estate funds.
8. Pursuant to s 68 of the Succession Act and s 101 of the Trusts Act 1973, the Court fixes the remuneration of the Administrator for the Estates with such remuneration for professional and non-professional work to be assessed by an independent cost assessor, pursuant to the Supreme Court scale, as varied from time to time on the indemnity basis, at approximately three-monthly intervals and on completion of her administration.
9. The Administrator is authorised to engage her employers from time to time as her solicitors with their professional costs and outlays to be assessed by an independent cost assessor, pursuant to the Supreme Court scale, as varied from time to time on the indemnity basis, at approximately three-monthly intervals and on completion of her administration.
10. All fees assessed are not payable to the Administrator personally, but to the firm of which the Administrator is a director.
11. The Administrator has liberty to apply for directions in relation to the administration of the estate.
12. The applicant’s costs of the proceedings to date be paid out of the estate on the indemnity basis in the first instance.  The question as to who ultimately bears the costs of the proceedings is reserved.