Uniform Civil Procedure Rules 1999 (UCPR Qld) - Digest
back to table of provisionsChapter 15 – Probate and Administration, and Trust Estates
- Part 1 – IntroductionPart 2 – Grants
- [597] Application for grant
- [598] General notice of intention to apply for grant
- [599] Requirements for notice of intention to apply for grant
- [600] Registrar may make inquiries
- [601] When registrar may make grant
- [602] Contents of supporting affidavit
- [603] Priority for letters of administration with the will
- [604] Evidence of proper attestation of will
- [605] Interlineations, alterations and erasures
- [606] Documents mentioned in or attached to will
- [607] Wills made by blind or illiterate persons
- [608] Marginal note
- [609] Contents of supporting affidavit on intestacy
- [610] Priority for letters of administration
- [611] Grant to attorney of absent person or person without prior right
- [612] Court not to make grant on intestacy within 30 days after death
- [613] Limited administration
- [614] Limited and special administration
- [615] Application of part
- [616] Who may apply for reseal of foreign grant
- [617] Notice of intention to apply for reseal
- [618] Production of grant and testamentary papers
- [619] Special, limited and temporary grants
- [620] Notice to original court
- [623] Definitions for pt 7
- [624] Caveats by person objecting
- [625] Caveat procedure
- [626] Setting aside caveat
- [627] Withdrawal of caveat
- [628] Effect of caveat filed on day of grant
- [629] Definitions for pt 8
- [630] Application of pt 8
- [631] Statement of nature of interest
- [632] Affidavit of scripts
- [633] Notice to persons with beneficial interest
- [634] Notice of intention to intervene
- [635] Claim to name defendants
- [636] Grant to be filed
- [637] Subpoenas
- [638] Administration pending proceedings
- [639] Grants to young persons
- [640] Proof in solemn form
- [641] Notice of revocation or alteration of resealed Queensland grant
- [642] Revocation of grants and limited grants
- [643] Relief against neglect or refusal by executor, administrator or trustee
- [644] Definitions for pts 10 and 11
- [645] Application by beneficiary for filing, assessing and passing estate account
- [646] Requirements for making application for filing, assessing and passing estate account
- [647] Application by trustee for assessing and passing estate account
- [648] Requirements of estate account
- [649] Filing estate account and notice of objection
- [650] Referral of issue to costs assessor
- [651] Procedure on assessment
- [652] Powers of account assessor
- [653] No participation by party
- [654] Issue or question arising
- [655] Notice of adjournment
- [656] Conflict of interest
- [657] Certificate of account assessment
- [657A] Written reasons for decision
- [657B] Passing estate account
- [657G] Eligibility
- [657H] Application
- [657I] Appointment
- [657J] Ongoing disclosure of adverse matters and updated details
- [657K] List of account assessors
- [657L] Charges for account assessments
- [657M] Ending an appointment by request
- [657N] Ending an appointment for sufficient reason
- [657O] Effect of ending of appointment or notice about possible ending of appointment
- Division 1 – Preliminary
- Division 2 – Applying for orders for filing, assessing and passing estate accounts etc.
- Division 3 – Assessment of estate accounts
- Division 4 – Passing estate accounts
[596] Definitions for ch 15 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[597] Application for grant go to top
Rule 597 Application for grant
An application for a grant of probate under r 597 is a legal matter which the holder of an enduring power of attorney has power to bring, within the meaning of that term in Sch 2 to the Powers of Attorney Act 1998 (Qld): Re Wild [2003] 1 Qd R 459, [22] (White J).
The authority to admit copies of missing wills to probate derives from the pre-existing common law jurisdiction, which can be accessed by way of an application under r 597, rather than under s 18 of the Succession Act 1981 (Qld): Re Kelly (dec’d) [2014] QSC 283, [26] (Alan Wilson J), citing Re Cardie [2013] QSC 265, [16], [19] (de Jersey J).
[598] General notice of intention to apply for grant go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[599] Requirements for notice of intention to apply for grant go to top
Supreme Court of Queensland Practice Direction No 2 of 2014 provides the approval of newspapers for publication of notices for the purpose of r 599(3).
[600] Registrar may make inquiries go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[601] When registrar may make grant go to top
As to examples of referrals made:
- In Re Estate of Wilcock [2004] QSC 473, Jones J determined an application referred to the court under r 601 due to irregularities in the will document;
- In Re Bulger (dec’d) [2011] QSC 36, the registrar referred a question to the Court as to the testamentary capacity of the deceased testator; and
- In Re Wild [2003] 1 Qd R 459, the registrar referred a question to the Court for a ruling as to whether an attorney appointed under an enduring an enduring power of attorney given under s 175A of the Property Law Act 1974 can apply for a grant of probate on behalf of a sole executrix and sole beneficiary.
The jurisdiction of the court to grant probate of a copy of a will is well established and is recognised in r 601(1)(c): Re Warren (dec'd) [2014] QSC 101, [8] (Peter Lyons J).
The five matters to be established in such an application are:
- whether there was a will;
- that the document revoked all previous wills;
- the presumption that, when a will has not been produced it has been destroyed, and thus revoked, must be overcome;
- the terms of the will;
- the will was duly executed: Frizzo v Frizzo [2011] QSC 107, [161] (Applegarth J), citing Cahill v Rhodes [2002] NSWSC 561, [55] (Campbell J); see also Re Warren (dec'd) [2014] QSC 101, [8] (Peter Lyons J).
[602] Contents of supporting affidavit go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[603] Priority for letters of administration with the will go to top
Under r 603 there is a descending order of priority of persons to whom the court may grant letters of administration with the will, beginning with the trustee of the residuary estate. However, the court may make a grant to any person in priority to a person mentioned in the list: Baldwin and Neale v Greenland [2005] QSC 386, [22] (Wilson J).
The term “renunciation” used in rr 603(4) and 610(5) refers to the renunciation of an entitlement to seek a grant of representation, either probate or administration: Micallef v Micallef; Arrowsmith v Micallef [2012] QSC 239, [23] (Applegarth J).
It is open to parties to whom the court may grant letters of administration pursuant to r 603 to seek the grant of letters of administration limited to the payment of liabilities, taxes and duties of the estate and to enable them to initiate inquiries to ascertain the likely beneficial interests of the descendants of the deceased: Re: Starkey [2015] QSC 32, [14]-[15] (Henry J).
[604] Evidence of proper attestation of will go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[605] Interlineations, alterations and erasures go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[606] Documents mentioned in or attached to will go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[607] Wills made by blind or illiterate persons go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[608] Marginal note go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[609] Contents of supporting affidavit on intestacy go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[610] Priority for letters of administration go to top
Where a person dies without a surviving spouse, children or other issue, the deceased’s parents are entitled to a grant. It is not usual to make a joint grant. The court has a general power found in r 610(3) to grant letters of administration to any person, in priority to any person mentioned in r 610(1): McIntosh v McIntosh [2014] QSC 99, [66] (Atkinson J).
Rule 610 contains a descending order of priority of persons to whom the court may grant letters of administration on intestacy. But the court is not bound by the prescribed order of priority: it may make a grant to any person in priority to a person mentioned in the list: Pierpoint v Liston [2012] QCA 199, [15] (Margaret Wilson J, McMurdo P and White JA agreeing).
The degree of family disharmony and complication in family relationships is a relevant consideration in deciding whether to appoint a disinterested party, such as the Public Trustee of Queensland, to administer the estate in intestacy under r 610(3): Re Watts [2011] QSC 420, pp.12-13 (Atkinson J).
The term “renunciation” used in rr 603(4) and 610(5) refers to the renunciation of an entitlement to seek a grant of representation, either probate or administration: Micallef v Micallef; Arrowsmith v Micallef [2012] QSC 239, [23] (Applegarth J).
The usual rule is that the person entitled to letters of administration on an intestacy under r 610(1) is responsible for burial of the body of the deceased: Roma v Ketchup [2009] QSC 442, [10] (Margaret Wilson J).
[611] Grant to attorney of absent person or person without prior right go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[612] Court not to make grant on intestacy within 30 days after death go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[613] Limited administration go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[614] Limited and special administration go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[615] Application of part go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court. .
[616] Who may apply for reseal of foreign grant go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[617] Notice of intention to apply for reseal go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[618] Production of grant and testamentary papers go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[619] Special, limited and temporary grants go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[620] Notice to original court go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[621] Order to administer go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[622] Revocation of order to administer go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[623] Definitions for pt 7 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[624] Caveats by person objecting go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[625] Caveat procedure go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[626] Setting aside caveat go to top
The reasoning of the Full Court in Re Devoy: Fitzgerald and Pender v Fitzgerald [1943] St R Qd 137 applies to r 626. That authority establishes that a person, even if he be next of kin, could not oppose a grant of probate of a will unless that person has some interest to protect: Leach v Leach [2007] QCA 118, [14] (Williams JA, Keane JA and Douglas J agreeing).
It is only in circumstances where the court takes the view that there is no doubt but that a grant of probate should be made that the court would summarily set aside the caveat under r 626. Otherwise, the issues would fall to be examined comprehensively, and at appropriate leisure, in the course of a full solemn form hearing: Sorbello v Noble [2004] QSC 433, (de Jersey CJ).
To establish a “doubt”, as used in r 626(2), the respondent to an application must rely upon something more than mere supposition: De Groot v Musso [2011] QSC 69, [20] (Martin J).
As to the standard of certainty required, see Londy & Pender v Kavanagh [2017] QSC 161 (Boddice J).
[627] Withdrawal of caveat go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[628] Effect of caveat filed on day of grant go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[629] Definitions for pt 8 go to top
In the normal course, a proceeding to prove or disprove a will in solemn form should be commenced by claim. This is apparent from the definition of “contested proceeding” in r 629, which refers back to a “claim” as defined in r 22. There are good reasons for this approach, as it results in pleadings exposing what aspects of the circumstances of the making of a will may affect the validity of the will. However, in the case of a small estate, where the issues and evidence are sufficiently defined, it may be appropriate to proceed by way of originating application and affidavits: Public Trustee of Queensland v Tennila [2018] QSC 84 (Mullins J) at [19].
[630] Application of pt 8 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[631] Statement of nature of interest go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[632] Affidavit of scripts go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[633] Notice to persons with beneficial interest go to top
In appropriate circumstances, r 633 can be satisfied where it can be demonstrated that those parties interested in the proceeding are aware of the nature of the application and no harm or mischief had been caused by reason of the failure to give the required notice: Hodgens v Hodgens [2008] QCA 80, [19] (Jerrard JA, Wilson J and Lyons J agreeing).
[634] Notice of intention to intervene go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[635] Claim to name defendants go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[636] Grant to be filed go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[637] Subpoenas go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[638] Administration pending proceedings go to top
The object of the grant of administration pending determination of the claim “is to ensure that the estate of the deceased is managed and preserved for the benefit of those found to be entitled thereto“: Hempseed v Ward [2013] QSC 348, [14] (McMeekin J), quoting Williams Mortimer and Sunnucks on Executors, Administrators and Probate, 19th edition at para 24/49 p 356.
The circumstances would need to be quite exceptional for a party to the dispute regarding administration of the estate to be appointed to administer it: Hempseed v Ward [2013] QSC 348, [15]-[16], [20] (McMeekin J), citing Tomkinson v Hersey (1983) 32 SASR 181, 187 (Cox J).
[639] Grants to young persons go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[640] Proof in solemn form go to top
A person who would be entitled to take on the intestacy of the deceased has a sufficient interest to apply for the revocation of a grant of probate: Green v Critchley [2004] QSC 22, [1] (Atkinson J), citing Re Russell [1986] 1 Qd R 131, 133 (Williams J).
The provisions relating to objections to a grant of probate under the previous Rules of the Supreme Court, governed as they were by the system of caveats, have been simplified in the UCPR. The words “no interest sufficient to entitle the person to object to the grant applied for” as found in RSC O 71 r 59 appears as “a sufficient interest in the administration of the estate” in r 640 of the UCPR but is no different in meaning and effect from the previous rule. A narrow view of “interest” will not be taken: Leitch v Dore [2005] 2 Qd R 168; [2005] QSC 69, [14]–[15] (White J).
[641] Notice of revocation or alteration of resealed Queensland grant go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[642] Revocation of grants and limited grants go to top
In circumstances where an executor has proven the will in solemn form in a fully contested probate application and has collected the estate, incurring considerable costs, the court will not lightly intervene to revoke the appointment and substitute an administrator: Conroy v Smith [2007] QSC 182, [15]-[16] (Moynihan J).
The court may remove an executor to whom a grant of probate has been given, by revocation of the grant. Such a removal will occur when the court is persuaded that the due and proper administration of the estate in the interest of those beneficiaries entitled has been put in jeopardy, or prevented, by reason of the acts or omissions of the executor or, because of matters personal to him or her, or for some good reason the executor is not a fit and proper person to carry out the executorial duties: Colston v McMullen [2010] QSC 292, [39] (White J), citing Bates v Messner (1967) 67 SR (NSW) 187, 191–2 (Asprey JA); see also Schumacher v Emmerson [2013] QSC 205, [72] (Daubney J).
Apart from the circumstances for removal specified in r 642, a broad power of removal is conferred by s 6(1) of the Succession Act 1981 (Qld): Budulica v Budulica [2017] QSC 60 (Mullins J) at [26].
[643] Relief against neglect or refusal by executor, administrator or trustee go to top
Where a person dies intestate, there is an insuperable obstacle to applying r 643(1) because there is no will and necessarily therefore no legacy or residuary bequest on which r 643(1)(c) can operate: [2004] 209 ALR 106 [2004] QCA 269, [4] (McPherson JA, Williams JA and Jerrard JA agreeing).
Rules 643(1)(a) and 643(1)(b) are confined to the transfer or transmission of land or interests in land, or their registration, and have no application to a case where the claim is directed to a failure to account for or pay personal property in the form of money alleged to have been received on behalf of the intestate: [2004] 209 ALR 106 [2004] QCA 269, [4] (McPherson JA, Williams JA and Jerrard JA agreeing).
The terms of an application under r 643 must seek to have any estate, legacy or bequest conveyed, transferred, transmitted, paid or handed to the applicant, as these are matters with which r 643 is concerned: Helg v Sergiacomi [2014] QSC 50, [10] (McMeekin J).
The provisions for summary relief against executors found in r 643 do not extend to the removal of executors. The better view seems to be that the Court has inherent power to remove an executor for just cause by revocation of a grant of probate to him or her and power to appoint an executor in substitution: Williams v Williams [2005] 1 Qd R 105; [2004] QSC 269, [10]-[11] (Wilson J).
Division 1 – Preliminary
[644] Definitions for pts 10 and 11 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 2 – Applying for orders for filing, assessing and passing estate accounts etc.
[645] Application by beneficiary for filing, assessing and passing estate account go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[646] Requirements for making application for filing, assessing and passing estate account go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[647] Application by trustee for assessing and passing estate account go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[648] Requirements of estate account go to top
Rule 648 allows an interested person to be heard and to file an objection to the account or allowance of commission while r 649(2) provides that the registrar “must inquire into any objection or exception taken to the account or allowance of commission at the hearing”. There is no limit expressed in r 648 as to the grounds of objection that may be taken: Kirkman v Salvation Army (Qld) Property Trust [2008] 1 Qd R 160; [2007] QSC 120, [14] (Douglas J).
[649] Filing estate account and notice of objection go to top
On an examination of an account pursuant to r 649 to determine the amount of commission to allow, the registrar is required to inquire into any objection or exception taken to the account or allowance of commission at the hearing. Such an examination might be in the nature of an audit if the circumstances warranted it. It is not limited to the verification of the claims by an inspection of vouchers only, but might require the registrar to determine whether the account was accurate or erroneous and whether payments had been made properly or improperly: Kirkman v Salvation Army (Qld) Property Trust [2008] 1 Qd R 160; [2007] QSC 120, [38] (Douglas J).
This process of moderation of costs will entitle the registrar to require an itemised bill to assist him or her to determine whether the account should be passed, although the practice in New South Wales of the production of bills in narrative form for informal assessment in the first place may be more practical in the majority of cases: Kirkman v Salvation Army (Qld) Property Trust [2008] 1 Qd R 160; [2007] QSC 120, [36] (Douglas J).
[650] Referral of issue to costs assessor go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 3 – Assessment of estate accounts
[651] Procedure on assessment go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[652] Powers of account assessor go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[653] No participation by party go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[654] Issue or question arising go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[655] Notice of adjournment go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[656] Conflict of interest go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[657] Certificate of account assessment go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[657A] Written reasons for decision go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 4 – Passing estate accounts
[657B] Passing estate account go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 5 – Commission
[657C] Application for commission go to top
In Re estate of Ghidella [2005] QSC 106, Jones J at [13] considered the principles applicable to the assessment of commission payable to an executor in respect of an application made under the former r 650(7):
“The assessment of the level of commission appears to be at the discretion of the hearing judge. In Re Lack [[1983] 2 Qd R 613] McPherson J referred to a practice of allowing commission assessed on a percentage basis, but in fact awarded commission based on the value of the work undertaken by the executors. Statutory scales provided for work undertaken by trustee companies or the Public Trustee provide some percentage commissions and also provide some guidance for this particular assessment. Such percentages do not necessarily equate to a proper allowance for the ‘pains and trouble’ involved by the executors in carrying out their duties. It is the assessment of the ‘pains and trouble’ which underpins the exercise of the discretion in fixing the allowance. The manner of exercise of that discretion can be by selecting a percentage of the value of the estate or by assessing a lump sum. In Re Barr Smith [(1920) SALR 380] the Full Court of South Australia favoured the view that assessment by way of percentage of the assets to be realised and the income to be managed is the most appropriate course to follow. As with statutory trustees where the percentage is fixed according to a sliding scale — percentage reducing as the estate is larger — there is a need for moderation in circumstances where the value of the estate is large. However, the assessment must have regard to the value of the efforts of the executors.”
[657D] Court may require filing of estate account go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[657E] Decision on application for commission go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[657F] Other orders and agreements go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[657G] Eligibility go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[657H] Application go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[657I] Appointment go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[657J] Ongoing disclosure of adverse matters and updated details go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[657K] List of account assessors go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[657L] Charges for account assessments go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[657M] Ending an appointment by request go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[657N] Ending an appointment for sufficient reason go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[657O] Effect of ending of appointment or notice about possible ending of appointment go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.