Wong on Wills & Probate

Select topics on Probate & Administration in Australia, specifically Queensland

Work-in-progress, 28 June 2025 (last updated)

[#] Guides

• See Checklists at LPLC, 'Estate Administration': <https://lplc.com.au/risk-advice/personal-succession-law/estate-administration>. 

• 'A Guide for Executors' (LPLC, Feb 2023) <https://lplc.com.au/resources/client-resources/guide-executors>, archived at <https://archive.md/TsSeL>; pdf at <https://lplc.com.au/uploads/main/Resources/Client-Resources/A-guide-for-executors.pdf>. 

[A] Executor de son tort; acting as executor, administering estate at time prior to probate: 

• intermeddling preclude renunciation, personal liability, order to compel probate: see well-articulated discussion in Re Estate Kleinlehrer, Deceased [2024] NSWSC 648 <https://jade.io/article/1076993>; cf s 54(2), Succession Act 1981 (Qld). 

• 'Can an Executor Renounce Their Appointment? (Qld)' (GotoCourt, Webpage) <https://www.gotocourt.com.au/can-an-executor-renounce-their-appointment-qld/>, archived at <https://archive.md/zo8E9>.  

• ‘Executors De Son Tort’ (Gregson & Assoc, Webpage) <https://www.gregsonandassociates.com.au/executors-de-son-tort/>. 

• "In all Australian jurisdictions executorial status continues to be derived not from a grant of probate, nor from any legislative provision, but solely from the will under which the appointment is made. Many small, and even some larger, estates of deceased persons may 1 lawfully and properly be administered at common law by an executor named in the deceased's will without a grant of probate. This may be the case in all Australian jurisdictions, notwithstanding that in new South Wales, Western Australia, the Australian Capital Territory and the Northern Territory an executor's legal title to the estate assets derives, by statute, from the grant of probate and not from the will or by statute as elsewhere. Although in these jurisdictions the Public Trustee may have some legal capacities incident to a bare or notional statutory title in the absence of a grant of probate to an executor, this title, being bare or notional, exists primarily for the benefit of the executor. It is submitted that the executor without a grant in these jurisdictions has lawfully authority to direct the Public Trustee to consent or, where necessary, assent to transfers or transmissions of estate assets to third persons. It is not legally correct to conclude that in the grant-title jurisdictions the position of an executor without a grant has been assimilated to that of an administrator or a mere potential administrator. The office of executor is historically and juridically fundamentally different from that of an administrator and remains so, except for incidental statutory changes, throughout Australia.": Neville Crago, 'Executors of Unproved Wills: Status and Devolution of Title in Australia' (1993) 23 Western Australian Law Review  235, 249-50 <https://www8.austlii.edu.au/au/journals/UWALawRw/1993/21.pdf>. 

[B] Probate - Grants of Representation

• Resources: 

> Queensland Law Reform Commission, Administration of Estates of Deceased Persons: Report of the National Committee for Uniform Succession Laws to the Standing Committee of Attorneys General (Report No. 65, 2009) <https://www.austlii.edu.au/cgi-bin/viewdoc/au/other/lawreform/QLRC/2009/65.html> Vols 1-4. 

> Geoff Lindsay, 'The Province and Nature of Probate Law and Practice' (Paper, College of Law Wills and Estate Seminar, 23 September 2022) <https://supremecourt.nsw.gov.au/documents/Publications/Speeches/2022-Speeches/Lindsay_20220223.pdf>. 

• 'Troublesome Estates: Limited, Urgent and Unusual Grants of Representation' (Suzanne Lyttleton Lawyers, 23 January 2024) <https://www.suzannelyttletonlawyers.com.au/post/troublesome-estates-limited-urgent-and-unusual-grants-of-representation>, archived at <https://archive.is/jWG3l> -- Victoria. 

> see also, '[24,000] What is a special or limited grant' in Wills Probate & Administration Victoria (LexisNexis): "Apart from grants of probate and letters of administration (with or without the will annexed) which form the majority of the applications made to the registrar, there are a number of special or limited grants which may be obtained. The main distinction between the usual grants and the special or limited grants is that the usual grants relate to the entire estate and confer general all-encompassing rights of administration onto the executor or administrator. The special or limited grants, on the other hand, are for a particular purpose or time only. The special or limited grants which are available include: Most commonly used: (1)Grant of letters of administration ad colligendum bona [Latin: ad colligenda bona — “to collect the goods”] (for collecting and preserving the goods of the deceased, pending delay in making the usual grant). (2)Letters of administration pendente lite [Latin: “awaiting the litigation”] (for collecting and preserving the goods of the deceased, pending litigation of a claim for the usual grant). (3)Letters of administration ad litem [Latin: “for the suit”] (for the purposes of enabling a person to represent an estate in litigation). Less commonly used: (4)Grant of letters of administration de bonis non [Latin: “of the goods not administered”] (for the appointment of an administrator in circumstances where the executor or administrator to whom a grant was made dies or disappears before the estate is fully administered). (5)Letters of administration durante absentia [Latin: “during absence”] (for the appointment of an administrator in circumstances where the executor or administrator to whom a grant was made is absent from Victoria for more than 12 months). (6)Grant durante minore aetate [Latin: “during minority”] (for the appointment of an administrator in circumstances where the person entitled to the grant is not yet 18 years of age). (7)Other special or limited grants."

> cf however, in NSW: "[13]  When this limited grant was first brought to my attention, I had two disturbing thoughts. [14]  The first was that whilst the Wills, Probate and Administration Act 1898 seems to make some provision for the powers of an administrator under a limited grant durante minore aetate (“dma”), there does not appear to be any corresponding provision with respect to other limited grants. Furthermore, s 70 in practice leads to an administration bond with conditions (see Mason and Handler, Succession Law and Practice NSW [1361.2]), whereas it would not appear that the present limited grant explicitly involves any conditions. ...": Koerstz v Norman [2008] NSWSC 133.

• Double Probate

> Christine Smyth, 'Herding Cats: Dealing with Recalcitrant Executors and Double Probate' (2019) Aug Proctor 40 <https://christinesmythestatelawyers.com.au/wp-content/uploads/2020/11/Herding-Cats.pdf>, archived at <https://web.archive.org/web/20250315063817/https://christinesmythestatelawyers.com.au/wp-content/uploads/2020/11/Herding-Cats.pdf>. 

• Minors seeking Probate: 

> [395-2585] Executor a minor: "Where the sole1 executor of an estate is a minor, the court may grant administration with the will annexed2 to the guardian of the minor or such other person as the court thinks fit,3 with limited or full power to act until probate is granted to the executor (upon reaching 18 years of age)4 or to some other person.5 Notes 1 Where there are several executors, only one of whom is a minor, a grant of administration durante minore aetate might not be granted: see, for example, Foxwist v Tremain (1670) 1 Mod Rep 47; 86 ER 721. Compare In the Will of Nicol (dec’d) (1926) 43 WN (NSW) 146a Citation information only (minor a co-executor, but the other executor, although of full age, was unable to act as executor; the court granted letters of administration to the minor’s guardian). See also (SA) r 45 (probate granted to the other executor or executors, with leave for a minor to apply upon reaching 18 years of age or for a guardian to be appointed (under ibid r 42) if the other executors renounce or refuse to accept probate). 2 Generally referred to as a grant cum testamento annexo durante minore aetate (‘during minority with the will annexed’). Where the deceased dies intestate and the person entitled is a minor, the grant is referred to simply as a grant durante minore aetate (‘during minority’). For the definition of ‘durante minore aetate’ see Encyclopaedic Australian Legal Dictionary. As to grants of administration when the person entitled on an intestacy is a minor see [395-3210]-[395-3225]. 3 The court has discretion whether, and to whom, to make the grant. The question is whether the grant will benefit the minor during his or her minority: In the Estate of Munroe(1891) 13 ALT 110; Re Lange(1896) 2 ALR 61 Citation information only; R v Bettesworth (Smith’s Case)(1731) 2 Stra 892; 93 ER 921. Generally, the court prefers statutory and testamentary guardians: see Re Morris(1862) 2 Sw & Tr 360; 164 ER 1035; In the Estate of Robertson(1882) 4 ALT 94. However, the court may approve a guardian elected by the minor: see Re Dillon’s Infants(1891) 7 WN (NSW) 131 Citation information only per Manning J; In the Estate of McCaig(1885) 11 VLR 758 Citation information only per Molesworth J; Re Coyle(1888) 14 VLR 793 Citation information only per a’Beckett J; Re Morris (dec’d)(1862) 2 Sw & Tr 360; 164 ER 1035; In the Estate of Soon(1882) 8 VLR (IP & M) 47; In the Estate of Robertson(1882) 4 ALT 94. A duly elected guardian may be passed over by the court if there is sufficient reason to do so: see, for example, In the Goods of Ewing(1828) 1 Hag Adm 381; 162 ER 619 (elderly guardian administration case); West v Willby(1820) 3 Phillim 379; 161 ER 1357 (insolvent estate). In New South Wales and Western Australia, minors have a limited right to elect their guardian subject to the court’s approval: (NSW) Supreme Court Rules 1970 Pt 78 Div 8 r 52 (WA) Non-contentious Probate Rules 1967 r 26. For legislation in all jurisdictions which sets out who may apply for a grant durante minore see [395-3225]. 4 The general rule is that a grant of administration durante minore aetate ceases when the minor becomes of age: Jones v Basset(1701) Prec Ch 174; 24 ER 85; Taylor v Watts(1676) Freem KB 425; 89 ER 316 (grant terminates when one of several minor executors attains majority). In the Will of Nicol (dec’d)(1926) 43 WN (NSW) 146a Citation information only (other executor not capable at time of testator’s death); Re Johnson[1931] VLR 60 Neutral treatment indicated; (1930) 36 ALR 401. 5 In the Goods of Loftus (1864) 3 Sw & Tr 307; 164 ER 1293 (grant made to testamentary guardians). See also: (ACT) Administration and Probate Act 1929 s 21 (NT) Administration and Probate Act 1969 s 30 (NSW) Probate and Administration Act 1898 s 70 (QLD) Succession Act 1981 s 6(3); (QLD) Uniform Civil Procedure Rules 1999 r 639 (SA) rr 44, 45 (TAS) Administration and Probate Act 1935 s 23 (VIC) Administration and Probate Act 1958 s 26 (WA) Administration Act 1903 s 33; (WA) Non-contentious Probate Rules 1967 r 26(1). In the Northern Territory and New South Wales, legislation expressly provides that administrators appointed during minority have the same powers whether or not the deceased left a valid will: (NT) Administration and Probate Act 1969 s 30(2) (NSW) Probate and Administration Act 1898 s 71 (same powers as an administrator during the minority of next of kin).": '(G) Types of Grant of Probate' in Halsbury's Laws of Australia. 

> "If so, because minors cannot be granted probate or letters of administration in their own right, a grant of administration with the will attached (cum testamento annexo – or administration cta), or administration on intestacy, will be given, with regard to the specific legislative requirements of each jurisdiction, for the minor’s benefit to:1 (1) both parents of the minor, or one with the consent of the other; (2) the minor’s legal, statutory or testamentary guardian, or a guardian of the minor assigned by the court;2 (3) generally, if the minor is above a certain age specified in the legislation – any guardian or next-of-kin elected by the minor, including, if the minor is married, the minor’s spouse;3 or (4) a person considered appropriate by the court.4 This type of grant is known as a grant of letters of administration “durante minore aetate” (during minority). This grant lasts until the legal minor assumes majority. It confers all powers normally possessed by a grant of administration and normally reserves power to minors to seek grants in their own name upon reaching majority.5 Footnotes 1 Administration and Probate Act 1929 ACT, s 12(2) (applies only in the case of an intestacy); Court Procedures Rules 2006 ACT, r 3116; Probate and Administration Act 1898 NSW, ss 63, 70; Supreme Court Rules 1970 NSW, Pt 78 r 50; Administration and Probate Act 1969 NT, s 22(3); Supreme Court Rules 1987 NT, r 88.28; Succession Act 1981 Qld, s 6(3); Uniform Civil Procedure Rules 1999 Qld, r 639; Supreme Court of South Australia Probate Rules 2015 SA, rr 44, 45; Administration and Probate Act 1935 Tas, s 23(1); Probate Rules 2017 Tas, rr 58–59; Administration and Probate Act 1958 Vic, s 26(1); Supreme Court (Administration and Probate) Rules 2014 Vic, r 5.01; Administration Act 1903 WA, s 33; Non-Contentious Probate Rules 1967 WA, r 26. 2 Administration and Probate Act 1929 ACT, s 21(1)(a); Probate and Administration Act 1898 NSW, s 70(a); Supreme Court Rules 1970 NSW, Pt 78 rr 50(1)(a), (b), 51; Administration and Probate Act 1969 NT, s 30(1)(a); Supreme Court Rules 1987 NT, rr 88.28(1)(a), (c), 88.30; Uniform Civil Procedure Rules 1999 Qld, r 639(2); Supreme Court of South Australia Probate Rules 2015 SA r 44; Administration and Probate Act 1935 Tas, s 23(1); Probate Rules 2017 Tas, rr 58–59; Administration and Probate Act 1958 Vic, s 26(1); Supreme Court (Administration and Probate) Rules 2014 Vic, r 5.01(1) – (3); Administration Act 1903 WA, s 33(1). See Re Estate of Hancock [2000] NSWSC 875. 3 Supreme Court Rules 1970 NSW, Pt 78 rr 50(1)(c), 52(1) (where the minor is aged 16 years or above); Supreme Court Rules 1987 NT, rr 88.28(1)(b), 88.29(1) (where the minor is aged 16 years or above); Supreme Court of South Australia Probate Rules 2015 SA r 44(1)(b) (where the minor is aged 16 years or above); Supreme Court Rules 2000 Tas, r 740 (no age threshold specified for the minor to elect a guardian); Administration and Probate Act 1935 Tas, s 23(1); Probate Rules 2017 Tas, rr 58–59; Supreme Court (Administration and Probate) Rules 2014 Vic, r 5.01(2) (where the minor is aged 12 years or above). 4 Administration and Probate Act 1929 ACT, s 21(1)(b); Probate and Administration Act 1898 NSW, s 70(b); Administration and Probate Act 1969 NT, s 30(1)(b); Uniform Civil Procedure Rules 1999 Qld, r 639(2); Supreme Court of South Australia Probate Rules 2015 SA, r 44(3); Administration and Probate Act 1935 Tas, s 23(1); Probate Rules 2017 Tas, r 58(2)(iii); Administration and Probate Act 1958 Vic, s 26(1); Supreme Court (Administration and Probate) Rules 2014 Vic, r 5.01; Administration Act 1903 WA, s 33(1). 5 See, eg, Administration and Probate Act 1929 ACT, s 21(2); Probate and Administration Act 1898 NSW, ss 70 – 71; Administration and Probate Act 1969 NT, s 30(1); Uniform Civil Procedure Rules 1999 Qld, r 639(3); Supreme Court of South Australia Probate Rules 2015 SA, r 45(1)(where minor co-executor); Administration and Probate Act 1935 Tas, s 23(1); Probate Rules 2017 Tas, r 58(4)(d); Administration and Probate Act 1958 Vic, s 26(1); Administration Act 1903 WA, s 33(1) – (2). See Re Cope; Cope v Cope (1880) 16 Ch D 49, Jessel MR at 52.": '[36.3.530] The testator may appoint a minor to be sole executor, or a minor may be entitled to a grant of administration on intestacy' in Joseph Claude Venenziano, Thw Laws of Australia (Westlaw) c 36. 

> '[24,030] Grant durante minore aetate' in Wills Probate & Administration Victoria (LexisNexis): "Section 26 of the APA 1958 deals with the situation where the only executor appointed by the will is a minor: s 26. The court may grant administration to the minor's guardian or other fit person as decided by the court until the minor's 18th birthday. This type of grant is also available where the only major beneficiary under an intestacy is a minor. In both situations, letters of administration during minority may be granted to any person whom the court thinks fit, including the minor's guardian. The court, therefore, has absolute discretion as to whom to appoint, although it will usually appoint the minor's guardian. The court will prefer the minor's natural testamentary or statutory guardian to a guardian nominated by the minor: In the Estate of Soon (1882) 8 VLR (IP & M) 47. Reference may also be made to Re Stevenson (1866) LR 1 P&D 287; In Re Dillon's Infants  (1891) 7 WN(NSW) 131; Re Estate D J Hancock BC200005158; [2000] NSWSC 875. Rule 5.01 of the A&P Rules 2014 specifically deals with the election and appointment of guardians, including the election of the guardian by minors aged 12 or over: see [254]. Where the executor is a minor, the grant will be made to the applicant for his or her use and benefit until the minor attains full age: see s 26(1). If the minor is the preferred applicant on an intestacy, but for his age, the grant will be made to the applicant until the minor attains full age and applies for a grant of letters of administration: Re Johnson [1931] VLR 60."

> appointment durante minore aetate to guardian: "[53] Accordingly, letters of administration cum testamento annexo minore aetate should be granted of the will ... [56] If a person appoints a minor as his or her executor, the court makes a grant durante minore aetate and then makes a final grant when the minor comes of age. [57]  The reason why Darren seeks the grant is that Corey’s mother, Becky, has made a Family Provision claim against the estate. This seems a good enough reason not to appoint Becky as the administrator. In my view, Darren is the next best person to act for Corey until he obtains his majority. [58]  Thus an order should be made appointing Darren as an assigned guardian to take the grant under r 78.29 of the Supreme Court Rules."": Ackerley v Felton [2012] NSWSC 1468 (Young AJ). 

> "[7] Pt78 r29 and following are in the division of the Probate rules dealing with grants of administration during minority. It is possible for a person to make his or her executor a person who is under 18 years of age. If that occurs, then the Court in the first instance makes a grant durante minore aetate (dma) until the nominated executor attains his or her majority. [8] The practice for centuries in such cases has been to distinguish between the case where the named executor is an infant (under seven years) or a minor (between 7 and 18). In the latter case, the minor may elect a guardian who, if he or she consents, may be given a grant dma. Ordinarily, the grant is to be made to the next of kin of the minor, but if that next of kin is a minor or there are good reasons for passing over the next of kin, then some other person may be appointed. It is all a matter for the discretion of the Court subject to those general guidelines; see for instance Re Ewing (1828) 1 Hag Ec 381; 162 ER 619; Re Weir (1862) 2 Sw & Tr 451; 164 ER 1070 and Re Stephenson (1866) LR 1 P & D 287. The subject matter is covered in Tristram and Cootes Probate Practice (Butterworths, London, 1946) p252 and following. [9] The English authorities have been accepted in Australia; see for instance Re Dillon's Infants (1891) 7 WN (NSW) 131. [10] Pt78 r29 to r31 deal with the situation of a grant dma: they do not have any wider operation.": Re Estate of Hancock [2000] NSWSC 875. 

> grant to testamentary guardian, upon the guardian's application: "Lorne Ethel Nash Kibble, of Ascot, Brisbane, died at Brisbane on 3rd February, 1935, having first duly made and executed her will by which she left her whole estate to be divided equally between her two children, John Dudley Nash Kibble and Kenneth George Nash Kibble. The deceased had no other children, left only personal estate, and appointed no executor by her will. John Dudley Nash Kibble was nineteen years of age, and Kenneth George Nash Kibble was seventeen years of age. They were the only next of kin surviving. Their father had died on 4th December, 1923, and probate of his will had been granted to the deceased and one Henry John Cupples, the executrix and executor named therein. This will also appointed the deceased and Cupples guardians of the two infant children. Henry John Cupples now applied as testamentary guardian for a grant of administration of the goods of the deceased, with the will. ... [1] Ordered that a grant of administration issue to Henry John Cupples, as testamentary guardian, of the goods of the deceased with the will, for the use and benefit of the two children during their minority and until they or either of them shall apply for and obtain a grant to be made to themselves or himself personally.": Re Kibble [1935] QWN 45 (Blair CJ). 

> UCPR 1999 (Qld) r 639. 

> Re Ronan [2018] QSC 173. 

> "[33] An initial potential difficulty with the submission made on behalf of Ms Frith arises out of r 610(5). The deceased’s children lack capacity, by reason of their age. That would mean that they are not entitled to priority, notwithstanding r 610(1). However, for Ms Frith, it was submitted that she was the guardian of the children for the purposes of r 639(2); and accordingly she represented them, with the effect that r 610(2) accorded to her the same priority which the children would otherwise have had. ... [76] However, it seems to me that I should treat Ms Frith as a person representing the children of the deceased, for the purposes of r 610. It may be that she is the guardian of those children, as the term is used in r 639(2). In any event, she is their litigation guardian under r 95. On that basis, she would enjoy priority under r 610.": Frith v Schubert and Anor [2010] QSC 444.

> ** "[13]  The plaintiffs have not sought a grant of representation in favour of them for the minor’s benefit. Such a grant will normally be limited until the minor attains full age and obtains a grant2 and is referred to as a grant of administration during minority or “administration durante minore aetate”.3 [14]  The Court’s authority in such matters can be summarised as follows: Grants of administration durante minore aetate may be made to guardians of infants for their use and benefit, subject to such limitations or conditions as the court or a judge or the Registrar of Probates may order. Infants above the age of seven years may elect a guardian, but in other cases a guardian must be assigned by the Court or a judge or the Registrar of Probates founded on an affidavit showing that the proposed guardian is either de facto next of kin or the infants, or that their next of kin de facto has renounced his right to the guardianship, and is consenting to the assignment of the proposed guardian, and that such proposed guardian is already to undertake the guardianship; and upon any application for administration by such guardian evidence of his election or assignment must be produced. In a family where there are infants both above and under the age of seven years an elected guardian may act for all the infants with out special assignment.”4 [15]  The plaintiffs have not sought an application before this court for such assignment and the court has not had the benefit of hearing from the child. In Victoria, minors aged 12 years or over may elect a guardian; in other instances the guardian may be assigned by the court or Registrar.5 The plaintiffs may be, in effect, attempting to act under the common law as guardian of Elinor.6 At common law, a parent may receive property for the benefit of the child.7 However, it seems under California law more is needed by the plaintiffs. ... 2. Re Johnson [1931] VLR 60. 3. See Halsbury’s Laws of Australia, 395 (IV) Administration During Minority, [395–3210]. 4. Ross A. Sundberg, Griffith’s Probate Law and Practice in Victoria, (3rd ed, 1983), 199. 5. Supreme Court (Administration and Probate) Rules 2004, r 5.01. 6. See for example Fountain v Alexander (1982) 150 CLR 615 at 626 and 634. 7. Morgan v Morgan (1737) 1 Atk.489, 26 ER 310.": Re Gerrit Johannes van Driel-Vis & Patricia Ann Van Driel-Vis [2007] VSC 372. 

> Re Leopold; Application by Gasbarro and Roache [2022] VSC 579.

> "A testator by his will directed his trustee to convert and, after payment of his debts and funeral and testamentary expenses, stand possessed of the residue of the estate upon trust to pay his widow an annuity until her death or remarriage and after her death or remarriage upon trust for all his children living at his death who should then have attained or thereafter attain the age of twenty-one years. Upon application made under s. 45 of The Trustees and Executors Acts, 1897 to 1924, some six years after his death, three of the four children having attained the age of twenty-one years, the court directed the trustee to set aside two several funds for securing the payment of the annuity to the widow and to divide the remainder of the estate into four equal shares, to distribute one such portion to each of the three eldest children and to hold the fourth such portion in trust for the fourth child durante minore aetate.": In re Otto Maletz [1948] QWN 30. 

• "The only next of kin of an intestate were infants, and there were no other relatives in Victoria. Held: The court granted administration de bonis non to one of their testamentary guardians durante minore aetate.": In the Estate of Stanton (Supreme Court of Victoria, 2 December 1880, Molesworth J). 

• "Held: Where although an infant named in a will as executor is not a sole executor, but the other person therein named is precluded from taking out administration by reason of mental infirmity, the court has power, notwithstanding the provisions of the Wills, Probate and Administration Act 1898 (NSW), s 70, to grant letters of administration with the will annexed to the guardian of the infant durante minore aetate.": In the Will of Nicol (Supreme Court of New South Wales, 9 August 1926, Harvey CJ in Eq). 

• Land Titles & Probate: 'Transmission Applications' in Land Title Practice Manual pt 5, 5a, 6 (Titles Qld) <https://www.titlesqld.com.au/wp-content/uploads/2023/09/ltpm-part-055a6.pdf>. 

> See also, Land Title Practice Manual (Queensland), full volume: <https://www.titlesqld.com.au/wp-content/uploads/2025/04/land-title-practice-manual.pdf>, archived at <https://web.archive.org/web/20250626132808/https://www.titlesqld.com.au/wp-content/uploads/2025/04/land-title-practice-manual.pdf>. 

Jing Zhi Wong

[C] Letters of Administration with Will

• LA or Probate, see <https://www.armstronglegal.com.au/contested-wills/probate/difference-between-grant-of-probate-and-letters-of-administration/>.

• Renunciation of Executor(s): 

> Priority for administration with Will: UCPR 1999 (Qld) r 603. 

> First executor renounced administration - Second executor could not be contacted - Applicant sought letters of administration: Re Krepela [2024] QSC 281, [25]: "I conclude that: (a) the will of Karel Krepela made 21 September 2023 is his last will; (b) the two named executors, Michael Wright and Donna Hromek, have renounced any right to administration of the will; (c) Vladislav Valis is one of two joint residual beneficiaries; (d) he has priority as a residual beneficiary; and (e) letters of administration ought to be granted to him."

> where the solicitor renounced his right to probate – where the solicitor closed his practice – where there was no successor – where the beneficiaries renounced their right to apply for letters of administration – where the applicant was a friend of the testator – where no one had priority over the applicant: Re Saunders (dec'd) [2023] QSC 64.  

>  Statutory framework - Where executors and trustees were nominated in the testator’s will — Where those executors and trustees renounced - applicant for letters is a solicitor: "30. Both William and Ellie have renounced probate. Therefore, by s 46 of the Succession Act 1981, their right to probate ceases. It follows then that the estate is left without an appointed legal personal representative. By s 6 of the Succession Act 1981, and s 80 of the Trusts Act 1973, the court has jurisdiction to grant letters of administration and appoint a new trustee. 31. Rule 603 of the Uniform Civil Procedure Rules 1999 provides the order of priority of persons to whom letters of administration may be granted. Rule 603 provides: “603 Priority for letters of administration with the will (1) The descending order of priority of persons to whom the court may grant letters of administration with the will is as follows— (a) a trustee of the residuary estate; (b) a life tenant of any part of the residuary estate; (c) a remainderman of any part of the residuary estate; (d) another residuary beneficiary; (e) a person otherwise entitled to all or part of the residuary estate, by full or partial intestacy; (f) a specific or pecuniary legatee; (g) a creditor or person who has acquired the entire beneficial interest under the will; (h) any one else the court may appoint. (2) The court may grant letters of administration with the will to any person, in priority to any person mentioned in subrule (1). (3) If 2 or more persons have the same priority, the order of priority must be decided according to which of them has the greater interest in the estate. (4) Each applicant must establish the person’s priority by providing evidence that each person higher in the order of priority is not entitled to priority because of death, incapacity or renunciation. (5) A document providing evidence for subrule (4) must be an exhibit to the affidavit in support of the application. (6) The applicant need not establish priority for a person equal to or lower than the applicant in the order of priority.” [32] Mr Klatt falls within r 603(1)(h). By r 603(4), in order to obtain a grant, Mr Klatt must show that all persons higher in the order of priority are not entitled to a grant. [33] Here, there is no trustee of the residuary estate.14 There is no life tenant of any part of the residuary estate.15 There is no remainderman of any part of the residuary estate.16 There is no residuary beneficiary entitled to apply because the three beneficiaries have renounced their right to apply.17 There is no suggestion of any full or partial intestacy and therefore there is no person entitled to the estate in intestacy.18 There is no specific or pecuniary legatee19 and no creditor or person who has acquired the entire beneficial interest under the will.20 [34] Mr Klatt, therefore, has priority. All the residuary beneficiaries have been alerted to the application and consent to it. The rules in relation to the giving of notice of intention to apply for a grant of letters of administration have been complied with and no caveat has been filed in relation to the estate. [36] Mr Klatt is a solicitor experienced in the administration of estates. He has sworn that he is not aware of any matter which might bear adversely on the appropriateness of his appointment. [37] Letters of administration with the will ought to be granted to Mr Klatt.": Re Macpherson [2022] QSC 20, [30]-[37]. 

> ** "Susan Webster Boden of Cairns, wife of William Henry Boden formerly of Cairns, mercantile clerk, deceased, left real and personal estate in Queensland valued at about £30.000, which, by her last will and testament, dated 6th September, 1909, she devised and bequeathed to her sons and daughter, appointing her son Laurence John Boden of Cairns, licensed victualler, and a stranger, namely, Richard McManus, of Cairns, commission agent, to be her executors. Both executors renounced probate. Laurence John Boden and another son of the testatrix, Edgar Morrison Boden of Cairns, commission agent, who were both beneficiaries under the will now applied to the Court for a grant of letters of administration with the will annexed. The other beneficiaries had filed consents to such grant. G. Hart, for the applicants: Section 8 of the Probate Act of 1867 applies the English probate practice. Rule 50 of the English Rules and Orders, 1862 (non-contentious business) provides as follows: “No person who renounces probate of a will or letters of administration of the personal estate and effects of a deceased person in one character is to be allowed to take a representation to the same deceased in another character.” That rule, which was intended for the guidance of the registry, may however, be modified by the Court. Mortimer on Probate, 2nd ed., pp. 230-231, who cites Re Loftus 1864, 3Sw. & Tr.307; 164Eng. R.1293) and Re Toscani ([1912] P.1). It is the wish of all the beneficiaries that the grant should be made. EA DOUGLAS J.[1] Holding that sufficient reason had been shown for a departure from the rule, ordered that a grant of letters of administration with the will annexed issue to the applicants.": Re Boden [1933] QWN 34. 

> Named executor catholic nun renounced - grant to niece stranger to estate: In the Will of Thomas Ruane [1959] QWN 32.

> Will appointing executor — Renunciation by executor — Petition by universal legatee for administration with the will annexed: In Re Doolan [1913] St R Qd 54. 

• Executor or an executor: An executor of an executor who has proved a will cannot renounce the executorship under the original will: In Re Gardner, Deceased [1948] QWN 41.

> query whether this is still the position under the Succession Act 1981 (Qld) s 47(5). 

[D] Duties of Administration - Executor

• "42 The duties of administration which an Executrix is required to perform include ascertaining what are the assets of the deceased, getting in those assets, ascertaining what are the liabilities of the estate, discharging those liabilities, apportioning the burden of payment of liabilities among the beneficiaries, keeping accounts and proper records of all dealings with the assets and liabilities of the estate, delivering accounts to those entitled to them, and distributing the net assets of the estate to the people entitled to receive them.": Gonzales v Claridades [2003] NSWSC 508, [42] (Campbell J in Eq). 

Administration durante minore aetate (executor a minor)

• "[PAA.71.10] Administration durante minore aetate An administrator during minority (dm ae) is an ordinary administrator appointed for the purposes of getting in and administering the estate in the usual way. The person's administration is limited only by the fact of the minority of the executor.1 The administrator dm ae can exercise the statutory powers of sale, lease or mortgage under s 153 of the Conveyancing Act 1919, and may also exercise a power of sale given by the testator to their executors or administrators.2 The administrator dm ae is liable for their administration, and, after its determination, must account to a subsequent administrator3 or to the executor4 as the case may be. If the testator was themself an executor, that executorship will also vest in the administrator dm ae, in other words, the chain of executors is not broken merely by the fact that one of the executors in the chain is a minor.5 Footnotes 1 Re Cope; Cope v Cope (1880) 16 Ch D 49; Re Thompson & McWilliam's Contract [1896] 1 Ir R 356. 2 Monsell v Armstrong (1872) LR 14 Eq 423. 3 Fotherby v Pate (1747) 3 Atk 603; 26 ER 1148; Taylor v Newton (1752) 1 Lee 15; 161 ER 7. 4 Lawson v Crofts (1662) 1 Sid 57; 82 ER 967. 5 Anon (1675) 1 Freem KB 288; 89 ER 208; see [PAA.45.20]–[PAA.45.140].": '71 Who shall have the same power as where administration is granted durante minore aetate of the next of kin', in Stephen Janes, David Liebhold & Paul Studdert, Wills, Probate and Administration Law in New South Wales (Westlaw). 

[E] Resealing of an Australian grant or probate in New Zealand

• Administration Act 1969 (NZ), ss 70, 71. 

• Miah v AMP Life Limited [2018] NZHC 1634 <https://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZHC/2018/1634.html>. 

[F] Burial Rights - Disposal of the Body

• See, Brown v Weidig [2023] NSWSC 281, [38] et seq.

• Phillips v State Coroner [2024] SASC 134. 

[G] Family Provision Claims

Effect of Family Provision Order on Estate Administration

• "[51] Thus, the applicant in favour of whom a family provision order is made, receives that benefit as the result of the creation of rights pursuant to the making of the order. That result is reached because the order takes effect as if it had been made in a codicil to the will of the deceased: also see, Union-Fidelity Trustee Co of Australia Ltd v Montgomery (1976) 1 NSWLR 134, at p 141; McLeod v Johns (1981) 1 NSWLR 347, at p 349. [52] In addition, as was pointed out in Official Receiver in Bankruptcy v Schultz [1990] HCA 45 ; (1990) 170 CLR 306, at 315–316 (dealing with s 41 Succession Act 1981 (Qld): The wide powers conferred by s 41 and the manner in which subs (10) is expressed strongly suggest that the effect of an order under the section is not to change the benefits to be expected from the right to due administration arising pursuant to the will, but to superimpose upon the duty of due administration a judicial order made pursuant to statute. In other words, a new and independent obligation is created which has an impact upon the way in which the executor administers the estate pursuant to his or her existing duty, by compelling him or her to comply with the terms of the court’s order. Each beneficiary’s right to due administration is made subject to the terms of the order in the sense that the order governs the executor’s actions to the exclusion of any inconsistent direction contained in or derived from the will. [53] Thus, an applicant who obtains a family provision order has the right to seek orders giving effect to the family provision order against the executor or administrator of the deceased’s estate to whom probate or administration has been granted because of the effect of s 72. As a person then beneficially entitled to part of the deceased’s estate, he or she does not have a proprietary interest in the property which is the subject of the family provision order but possesses a right to have the estate duly administered: Commissioner of Stamp Duties (Qld) v Livingston [1964] UKPCHCA 2 ; (1964) 112 CLR 12 ; (1965) AC 694 .": Wheat v Wisbey [2013] NSWSC 537.

Contracting out?

• Contracting out?: no: "[45] In Barns v Barns,[20] the High Court recently affirmed that parties cannot contract out of the rights conferred by the Act. On Mr Hills' behalf, it was argued that there are suggestions in the judgments in this case that an agreement by the parties as to their testamentary expectations is irrelevant to the exercise of the discretion to order further provision under the Act. Even the most cursory reading of the judgments in Barns v Barns shows that this argument is without substance.  There is no suggestion in the authorities that an agreement reflecting the mutual intentions and expectations of the parties, as expressed in the pre-nuptial agreement in this case, should not have a bearing on the evaluation which must be made as to whether the provision made for an applicant in the position of Mr Hills falls short of the adequate provision for his proper maintenance and support.  The view that such an agreement is relevant to that evaluation is supported by Callinan and Heydon JJ in Vigolo v Bostin.[21] [46] In this case, the voluntary statement of the parties of their mutual intentions and expectations in a form intended to be binding affords a reliable conspectus of the totality of the relationship of the parties and of their respective relationships with others who have a claim on their bounty. In my opinion, the court should have regard to such a voluntary statement by the parties of their intentions and expectations, unless there is good reason for the court to conclude that these intentions and expectations would not have shaped the thinking of the wise and just testator or testatrix postulated by the Act. There may be cases, for example, where the length of time and change in circumstances between the making of a pre-nuptial agreement and the death of one of the parties is such that the pre-nuptial agreement is no longer a true reflection of the parties' relationship. Or it may be that the evidence shows that the execution of the pre-nuptial agreement was procured by economic or other pressure. In this case, there is no such evidence, and the circumstances to which I have referred confirm that there are, in truth, good reasons why the pre-nuptial agreement should be regarded as an accurate reflection of the thinking of a wise and just wife in relation to the proper provision that should have been made from her estate for Mr Hills. [47] As Barwick CJ said in White v Barron:[22]  "The question whether the appellant was left without adequate maintenance must be answered at the date of death."  In White v Barron, Mason J said: "The question whether the testator left the appellant widow 'without adequate provision' for her 'proper maintenance' was to be determined by the primary judge by reference to circumstances as they existed at the date of the testator's death. Once this question was answered in the affirmative, it was for the court to exercise its discretion to order adequate provision for proper maintenance for the appellant by reference to circumstances as they existed at the date of the order. See generally Coates v National Trustees Executors and Agency Co Ltd ((1956) 95 CLR 494). There Dixon CJ observed that in determining the initial question of jurisdiction the Court must look to what is 'necessary or appropriate prospectively from that time', that is, the date of death, including events which are contingent as well as those which are certain or likely. Advantage may be taken of hindsight so long as the subsequent occurrences fall within 'the range of reasonable foresight' ((1956) 95 CLR at 508)."[23] [22]         (1980) 144 CLR 431 at 437. [23]         (1980) 144 CLR 431 at 441 (citations footnoted in original).": Hills v Chalk [2008] QCA 159.

• But see, release agreements in NSW: 

> s 95, Succession Act 2006 (NSW).

> "[69,276] ... The family provision legislation in all Australian jurisdictions except New South Wales is silent on the question whether one person can by contract or other arrangement with another person bind himself or herself not to seek family provision from that other person's deceased estate. The law governing this question in jurisdictions other than New South Wales was laid down in Lieberman v Morris (1944) 69 CLR 69; [1944] ALR 150 . The High Court held that a person who has covenanted with a person not to seek testator's family maintenance (nowadays more commonly called family provision) may, in spite of the covenant to the contrary, seek and be granted provision. In these jurisdictions, therefore, an attempt to contract out of family provision is ineffective, though no doubt the court would take the contract into account as one of the circumstances of the case, in considering whether to make an order and what order to make.1 1. The New South Wales provision is dealt with in [69,279], and see Hardingham, Neave and Ford The Law of Wills and Intestacy in Australia and New Zealand, 2nd ed, Law Book Company, 1989, para 3517. ... [69,279] ... Spouses dissolving their marriage (usually by divorce) may wish to finalise all the property relationships between them. Section 87 of the Family Law Act 1975 (Cth) empowers the Family Court to approve ‘maintenance agreements’ entered into in substitution for rights under the Act. The position in New South Wales is governed in part by s 95 of the Succession Act 2006 (NSW), which provides that a person may execute a release of rights to family provision; such a release is, however, ineffective unless it is approved by the Supreme Court. It was held by the High Court in In the Marriage of Smith (1986) 161 CLR 217; 66 ALR 1; 10 Fam LR 769; 60 ALJR 508 that the Family Court did not have jurisdiction to approve a release of rights to family provision under s 31 of the now repealed Family Provision Act 1982 (NSW); this could only be done by the New South Wales Supreme Court. In all other jurisdictions, since the position is governed by Lieberman v Morris, no release of rights is available on dissolution of the marriage or at any other time during the life of the person leaving the estate.1 Where the client testator has unfulfilled contractual obligations in respect of a child, consideration should be given to the establishment of a testamentary trust for the specific purpose of carrying out those obligations.": 'Family Provision: Testator's Family Maintenance' in Wills Probate & Administration Vic (LexisNexis, 2019). 

• Family Provision (NSW) and Family Law Act 1975 (Qld) - Releases in Financial Agreement: "[68] The agreement was declared to be a Financial Agreement pursuant to s 90B of the Family Law Amendment Bill 1999 and a Domestic Relationship Agreement and/or Termination Agreement pursuant to Pt 4 of the Property (Relationships) Act 1984. Partly at the court’s invitation the parties advanced analysis of the effect of the pre-nuptial agreement under Family Law Act ss 90B and 90G. The plaintiffs submitted that the structure of Family Law Act s 90B (2) and (3) also support the conclusion that the release in cl 3.2 should be construed as only operating upon the breakdown of marriage. But this argument is also not persuasive. The reference to the Family Provision Act in the pre-nuptial agreement means that the agreement is intended to have operation independently of the Family Law Act . And the words of the pre-nuptial agreement are intractable that the release operates whether or not there is a marital breakdown. Otherwise the Family Law Act jurisprudence in relation to agreements under ss 90B & 90G of that Act is not material to the court’s present task under the Family Provision Act. ...": Neil v Jacovou [2011] NSWSC 87.

• Dark v Dark [2016] NSWSC 1223, [114] et seq.

• Jurak v Latham [2023] NSWSC 1318, [201] et seq.

• Former defacto, former spouse - Property Settlement - effect of, on Family Provision Claim: 

> "[128]  One matter of significance is whether the claimant and deceased finalised their financial relationship at the time of the divorce or subsequently, whether by agreement or by means of court orders (as occurred in the present case after contested hearings). As Dijkhuijs shows, a final property settlement is not necessarily an absolute bar to a family provision application being considered on its merits, but in most cases such a settlement, if otherwise unimpeachable, is likely to terminate any obligation on the deceased to make testamentary provision for his or her former spouse.": Lodin v Lodin [2017] NSWCA 327.

> "[173]  The answers to these questions must be reached, in accordance with s 59(1)(b) of the Act, “having regard to all the circumstances of the case (whether past or present)”. Having regard to those circumstances, I was not satisfied that the Plaintiff had established any factors which warrant the making of the application. Amongst other things, she and the deceased had engaged in a deliberate, and systematic, division of their jointly held assets and liabilities, and had agreed, no doubt based upon the legal advice obtained, on a final financial settlement. There was simply insufficient evidence to satisfy me that the financial settlement that was reached was impeachable assuming, as submitted, establishing that was a factor which warranted the making of the application. Their relationship had ended completely before the property settlement and there was no subsequent relationship of any kind. Their conduct after separation clearly demonstrated that their marriage had ended more in anger than sorrow, that each regarded the separation as permanent, which permanence was fortified by the divorce order subsequently made, following which the property settlement was entered into. It is clear that they did not remain on close terms. [174]  Once the property adjustment orders were made, each was no longer restrained in dealing with his, or her, assets, respectively, by any obligation to consider the financial position of the other. Nothing more was required by means of a testamentary disposition in favour of the other. Any obligation of either to make any testamentary provision for the other’s maintenance or advancement in life had ended. There was no reason for the deceased to engage his attention, or bounty, thereafter, in relation to the Plaintiff and in my view there was no reason why the Court should take any action either in making any order for provision for her either. [175]  Similarly, when one considers the question of factors which warrant the making of the application according to community standards, the same conclusion is reached. Furthermore, the three children of the deceased, the chosen objects of the testamentary beneficence of the deceased, would, generally, be regarded as the natural objects of testamentary recognition by their father to the exclusion of a former spouse with whom he had a property settlement. Each, as a child of the deceased, has a significant competing claim on the bounty of the deceased. [176]  It followed that the Court was not able to make an order for provision. It was, therefore, unnecessary for me to make findings about the Plaintiff’s financial resources at the date of the trial. In the circumstances, it is unnecessary to deal with whether the provision made for the Plaintiff in the Will of the deceased is inadequate and whether an order for provision ought to be made for her.": Brindley v Wade (No 2) [2020] NSWSC 882.

> "[27]  Sackville AJA also observed at [128] that as “Dijkhuijs shows, a final property settlement is not necessarily an absolute bar to a family provision application being considered on its merits, but in most cases such a settlement, if otherwise unimpeachable, is likely to terminate any obligation on the deceased to make testamentary provision for his or her former spouse”.": Squire v Squire [2019] NSWCA 90.

> Rogic v Samaan [2018] NSWSC 1464, [137]. 

> no property settlement - FP ordered: Stockwell v Beaumont; O’Donnell v Beaumont [2019] NSWSC 1811, [190]-[192].

> "In those States and Territories where a former spouse is an eligible applicant there are in general no different criteria applied to a determination of the claim — the standard being that of proper or reasonable provision for maintenance, education or advancement. The same considerations and the same powers apply. What has been said about the claim of a spouse in New South Wales applies also to a former spouse. In the case of a former spouse, however, the potential for overlap with the field of operation of the Family Law Act is considerably greater. Yet no attempt has been made to resolve the conflict or to define or rationalise the respective fields of operation and policies of the Federal and State Acts. For example, there is no express provision in any of the Testator's Family Maintenance Acts, including the New South Wales Family Provision Act 1982, to say how the court should have regard to any order made during the joint lives of the parties or in proceedings which are continued after the death of either party. The matter has been left to decisions, which in some cases have referred to special difficulties which arise in dealing with claims by former spouses: Re Adams [1967] VR 875 at 881 ; In the Estate of Brooks (1979) 5 Fam LR 528 ; 22 SASR 398 , In re Preece [1947] SASR 134 ; Re Cutts [1969] VR 254 . By way of contrast the English law contained in the Matrimonial Causes Act 1973 and the Inheritance (Provision for Family and Dependants) Act 1975 contains a comprehensive code for dealing with financial provision between living parties to a marriage and between the survivor and the estate, whether or not the marriage has been dissolved. Upon divorce a spouse may claim financial provision, including either periodic or lump sum maintenance and the transfer or settlement of property. The issues regarding property are dealt with by a broad discretion which takes account of contributions, means and needs (and conduct). These provisions are comparable with the Family Law Act s 79. Where a marriage ends in death the survivor is entitled to have his or her claim considered in accordance with provisions as broad as those which apply on divorce, and to claim a share in the estate on the basis of those principles. The court is specifically directed to have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage, instead of being terminated by death, had been terminated by a decree of divorce (s 3(2)). Where the survivor is a divorced spouse then if questions of financial provision have already been determined during joint lives, he or she is limited to a maintenance claim. However, where there has been no application for or no determination of the application for financial provision on the broader bases just referred to, the survivor is treated as if there had been no divorce (s 14); in other words the application will be treated on the same broad basis as that which applies to the surviving spouse. Where a property or maintenance order had been made during joint lives, this will of course be relevant. In Re Fullard [1981] 2 All ER 796 it was held that the financial result of the divorce was plainly relevant and that as the deceased had regarded matters as settled by the parties’ agreement and as his assets were small it was not reasonable to expect him to make further provision. If there is a continuing maintenance order the survivor can choose whether to apply directly for family provision or for a variation of maintenance. The court has comprehensive powers to deal with either matter in accordance with the general provisions applicable to maintenance claims against the estate. The Court at the time of the divorce can, where the parties agree, bar any claim to provision from a deceased party's estate ... There are reasons for concluding that the Commonwealth has not evinced any intention to cover this field in a manner which would render inoperative the State TFM laws:— (1) It has not been considered in any decided case that parties who have had a maintenance agreement approved under the Family Law Act or its predecessor are precluded from bringing claims under State TFM laws. (It is, however, conceded that novelty alone is not an answer to the claim.) (2) When the Family Law Act was enacted there was no provision in any State or Territorial law which would have allowed parties to agree during their joint lives to exclude the operation of TFM laws, whether or not with the sanction of a court. In the absence of express statutory provision, such as exists in England (s 15(1)) and New South Wales (s 31) parties have never been permitted to contract out or waive TFM entitlements in any Australian State or Territory, in New Zealand or in England. Relevant cases are: In re Howard [1925] SR(NSW) 189 ; In re Willert [1937] QWN 35 ; In re Pearson [1936] VLR 355 ; In re Patrick (1936) 53 WN(NSW) 34 ; Lieberman v Morris (1944) 69 CLR 69 ; See also In the Estate of Brooks (1979) 5 Fam LR 528 ; 22 SASR 398 . It would be reasonable to conclude that a general change of this significance would require clear, express legislative provision. The general intention to provide parties with a way of determining finally their rights and obligations with respect to financial matters falling within the Family Law Act is not a clear statement of such an intention ...": In the Marriage of J G and RK J Smith (1984) 9 Fam LR 675, 695-6, 700.

> "[44] The Court will approve the release. The Court is required to take into account all the circumstances of the case: s 95(4). The Court has accordingly allowed all the evidence to be read in the proceedings relevant to the release and has considered it. Section 95(4) identifies a number of more specific mandatory considerations, with which these reasons now deal. These were the subject of Mr O’Sullivan’s submissions. [45] Ms Plosz clearly receives some benefit for the release. The $10,000 she receives in part exchange for her release is considerably less than her best possible outcome in the proceedings. But the evidence already before the Court shows that that her claim to be the deceased’s de facto wife is highly contestable. Mr O’Sullivan gave Ms Plosz advice as counsel about the release. He has indicated to the Court that he has advised Ms Plosz that it is in her interest to sign the deed including the release. Mr O’Sullivan was acting on a direct access basis. The Court does not require him to file evidence about the advice that he gave to his client. His statements to that effect from the Bar table were sufficient. [46] I am satisfied that Ms Plosz has been adequately advised and that the release is prudent in the circumstances. The release is also fair and reasonable. Were Ms Plosz to lose these proceedings she would be exposed to a substantial claim for costs, a risk that the settlement will avoid. I am also satisfied that she has taken independent advice in relation to the release. Moreover, it is clear from what Mr O’Sullivan has said that she has given due consideration to that advice. In the circumstances the release is approved.": Re Estate of Late Melegh [2016] NSWSC 249.

• Court's power not to make a consent order - family provision - Harris v Caladine: 

> Morrison v Abbott [2012] NSWSC 320.

> Sergent v Glass (No 2) [2018] NSWSC 1100.

Statutiory Framework - QLD - Issues to be Determined

• "[54] The approach taken in McEwan Shaw v Shaw77 and more particularly in the New South Wales cases, to which reference was there made, is clearly germane to the discrete issue, as it arises under the Queensland legislation and even more so because the issue of dependency is treated separately from the assessment of adequacy of testamentary provision and as a condition precedent to an entitlement.": McElligott v McElligott [2014] QDC 178.

Maintained or Supported - issue of Dependency

• Qualitative assessment on facts - value judgement of moral claim and moral duty: "[54] The approach taken in McEwan Shaw v Shaw77 and more particularly in the New South Wales cases, to which reference was there made, is clearly germane to the discrete issue, as it arises under the Queensland legislation and even more so because the issue of dependency is treated separately from the assessment of adequacy of testamentary provision and as a condition precedent to an entitlement. [55] Notwithstanding that for s 40 of the Succession Act 1981, substantial rather than whole maintenance or support may suffice, as a matter of the application of this requirement in the context of prevailing community standards and in the context of the provision being a condition precedent to the application of a test which was described by Gleeson CJ in Vigolo v Bostin,78 as requiring a value judgment based on considerations of moral claims and moral duty, a requirement of directness of such dependency should be recognized. The indirectness of any maintenance or support, such as is evident here and implicit in an arrangement where the children remained in the care of their ordinary primary caregiver, their mother and who otherwise herself provided substantially for their maintenance or support, means that it should be concluded that any such maintenance or support, as was provided by the deceased for the care of the children, was provided as much to and for the benefit of their mother and is therefore most unlikely to satisfy the requirements of s 40. It can also be noted that such a conclusion is consistent with the approach taken in Lohse v Lewis,79 in that substantial maintenance or support, requires something that may be described as being “in the main“ or “as to the greater part“. [56] It should therefore be concluded that the purported claim for maintenance for these children is, at the least, most unlikely to succeed, if not doomed to fail. However, it is unnecessary to be more categorical for the reasons to follow. [57] While the Executor is by his application, the moving party, a fundamental obstacle to the pursuit of the maintenance application for the children, is the necessity for the direction or leave of the court for it to proceed, pursuant to s 41(8) of the Succession Act 1981. An unfettered discretion is to be exercised and relevant considerations include not only any adequate explanation for delay but also an assessment of the merit or prospects of success of the application and whether there will be prejudice to other beneficiaries. An important point is that this being a substantive rather than merely procedural time limit, there is an onus on an applicant to establish sufficient grounds for such a direction.": McElligott v McElligott [2014] QDC 178.

• Living together, separate finances, but joint intent to apply savings toward future plans: "Headnotes ... Held, granting the application: (1) That, if savings were being accumulated for the benefit of two parties out of the income of one party, there was support or maintenance being provided to the other if the moneys were to be used partly or wholly for the benefit of that other in the event that the relevant plans came to fruition. (2) That each of the applicant and the deceased was contributing to the support of the other as a result of living together in a household to whose finances both made contributions and the applicant, therefore, was a dependant of the deceased ... Kneipp J ... I have had some difficulty in this matter on the question whether the applicant was a dependant of the deceased as defined in s.40 of the Succession Act 1981–1987. She was a dependant if, among other things, she was being wholly or substantially maintained or supported (otherwise than for valuable consideration) by the deceased at the time of his death. The problem is this. Suppose an applicant and the deceased were until his death both working, earning substantially the same amounts of income and contributing to a common monetary fund and sharing expenses equally. Can it be said in those circumstances that either is supporting or maintaining the other? If one gives a money value to the various contributions and sets them off, then it can be said that neither in real terms is supporting the other. Each is supporting herself or himself. I have found no relevant authority on this problem, but there did come to my mind an authority from a different context which suggests — and it is merely a matter of common sense — that if two persons are living together, sharing outgoings such as rent and electricity, then the amount which they will spend on their joint upkeep should not be twice as much as would be spent by either living alone. In those circumstances, it may be said that each is contributing to the support or maintenance of the other. The statement to which I refer is contained in a decision of Devlin J. in a fatal accidents case, Burgess v. Florence Nightingale Hospital [1955] 1 All E.R.511. The present case is not quite so simple. The parties had come to an agreement as to the dispositions of their respective incomes. The applicant spent the whole of her income on groceries, electricity, the telephone, and on her own personal expenses. The deceased paid the rent of the premises in which they were living and paid for such maintenance as was effected on them. He also paid for casual outgoings, which I need not describe. The deceased, apparently, for some years before his death lived very frugally, and after the agreed payments out of his income he had balances which by agreement between the parties were banked in investments which were in his name but which were intended in due course to be used for the establishment of a jointly owned home. The moneys which he accumulated in investments, as I have said, were in his name and eventually they formed a substantial part of his small estate. If one sets off the contributions and leaves it at that, then it would seem that, if anything, the applicant was supporting the deceased and that he was not supporting her. However, I do not think that it is necessary that the provision of support or maintenance is necessarily confined to the provision of support or services or the like. It seems to me that if savings are being accumulated for the benefit of two parties, and if the savings come out of the income of one party, there is support or maintenance being provided to the other if the moneys are to be used partly or wholly for the benefit of that other in the event that the relevant plans come to fruition. In the present case, having regard to the agreement between the parties as to the dispositions of their respective incomes, it seems to me to be at least arguable that the applicant might have claimed a proportion of the moneys which had been invested by the deceased in accordance with the agreement between them. In the result, it seems to me that one should take an overall view of the situation, and in these circumstances I think that one can appropriately take the view that each was contributing to the support of the other as a result of their living together in a household to whose finances both made contributions. I therefore find, although I must confess I have found the matter to be one of considerable difficulty, that the applicant was a dependant of the deceased. There is no doubt about the merits of the application. The estate is small. I think that its value is around $30,000, and that will be substantially reduced by deduction of the costs of this application. I think that the only appropriate order is that the applicant should receive the whole of the estate. I order that provision for the applicant, Violet Elizabeth Jorgensen, be made out of the estate of the deceased, Michael John Cobb, by the payment or transfer to the applicant of the whole of the estate of the said deceased. I order that the costs of all parties, including the costs of the administrator ad litem be taxed as between solicitor and own client and paid out of the said estate.": Re Cobb [1989] 1 Qd R 522.

• Former de facto wife with child of the relationship - dependance and support, successful, novel application, dependant under s 40 of the Act: Snodgrass v Estate of McLaren [2017] QSC 132.

• Adult child dependant - principles: "[128] In relation to a claim by an adult child, the following principles are useful to remember: (a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his or her children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801. (c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child’s life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise, they would be left destitute: Taylor v Farrugia, at [58]. (d) If the applicant has an obligation to support others, such as a parent’s obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland (dec’d) [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2 ; (1979) 143 CLR 134 at 148; Goodman v Windeyer at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons: Re Buckland (dec’d)at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams, at [86]. (e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37, per Nicholson J at 45. (f) The adult child’s lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003) at [179]–[182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164, at [17]. (g) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd, at 149. (h) Although some may hold the view that equality between children requires that “adequate provision” not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the court’s determination of an applicant’s case. (i) There is no obligation on a parent to equalise distributions made to his or her children so that each child receive benefits on the same scale as the other: Cooper v Dungan at 542. In Blore v Lang (1960) 104 CLR 124, Fullagar and Menzies JJ said, at 135: The measure to be applied is not what has been given to one, but what the other needs for his or her proper maintenance, giving due regard to all the circumstances of the case … The … legislation [is] for remedying, within such limits as a wide discretion would set, breaches of a testator’s moral duty to make adequate provision for the proper maintenance of his family — not for the making of … a fair distribution of … [the] estate … Equality is not something to be achieved by the application of the Act, although in some cases equality may set a limit to the order to be made — for instance, where there is not enough to provide proper maintenance for all entitled to consideration whose need is the same. ...": Wheat v Wisbey [2013] NSWSC 537.

Adequate Provision

• Includes any promises: "[110] And by the comments of Callinan and Heydon JJ in Vigolo v Bostin, at 230–231: We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors. ...": Wheat v Wisbey [2013] NSWSC 537.

• adapted to confirm with community standards: "[122] Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (NSWSC, Young J, 17 May 1996 unreported); Vigolo v Bostin at 199 and 204; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. How those community expectations or standards are determined cannot be explained other than by reference to the Act: Andrew v Andrew at [36]; 664. [123] In all cases under the Act, what is adequate and proper provision is necessarily fact specific.": Wheat v Wisbey [2013] NSWSC 537.

• INTERACTION with Family Law Act 1975 (Cth), see Family Provision in Wong on Family Law. 

[&] Singapore

• Probate & Administration Toolkit (Family Justice Courts Singapore, ver 2, 2021) <https://www.judiciary.gov.sg/docs/default-source/family-docs/probate-toolkit---ver-2--nov-2021-(002).pdf?sfvrsn=53e80230_2>, archived at <https://web.archive.org/web/20221118164720/https://www.judiciary.gov.sg/docs/default-source/family-docs/probate-toolkit---ver-2--nov-2021-(002).pdf?sfvrsn=53e80230_2>. 

• 'Grant of Probate Guide' (PKWA) <https://pkwalaw.com/grant-of-probate/>, archived at <https://archive.is/hPqFj>. 

• Double probate: court to reserve the power to make a like grant to those others who are competent to act and who have not renounced: 

> UJT v UJR [2018] SGHC 44; [2018] SGHCF 6 <https://www.elitigation.sg/gd/s/2018_SGHCF_6>. 

© Jing Zhi Wong, 2023-2025