King v Wogandt: Re Beutel

SUCCESSION - MAKING OF A WILL - STATUTORY POWER OF RECTIFICATION - where misdescription of named beneficiary as deceased's "late wife's niece" - where named beneficiary was the deceased's late wife's daughter - whether will should be rectified to refer to the deceased's niece of a different name

SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - where internal inconsistency between description and name of beneficiary - whether inconsistency can be resolved or gift fails as uncertain

SUCCESSION - PERSONAL REPRESENTATIVES - PROCEEDINGS BY AND AGAINST PERSONAL REPRESENTATIVES - COSTS - where not all litigation expenses were properly incurred testamentary or administration expenses - where some costs were attributable to the uncertain wording of the testamentary disposition - whether the respondent should be indemnified out of the estate

Succession Act 1981 (Qld) (Reprint No. 5C revised edition), s 28(b), s 31

Keulemans v Attorney-General (NSW) [2013] NSWSC 1772, cited

Kostka v The Ukrainian Council of NSW Inc [2013] NSWSC 222, cited

Miller v Cameron [1936] HCA 13; (1936) 54 CLR 572, referred to

Murdocca v Murdocca (No 2) [2002] NSWSC 505, cited

Perpetual Trustee Co Ltd v Gilmore (1979) 2 NSWLR 716, distinguished

Re Stone; Read v Dubua [1936] NSWStRp 50; (1936) 36 SR (NSW) 508, cited

Tasmanian Perpetual Trustees Ltd v Bell [2010] TASSC 1, cited

Trustees Executors & Agency Co Ltd v Johnston [1970] VicRp 77; [1970] VR 587, cited

[1] Jackson J: The disputes between the parties to this proceeding are over the estate of Charles William Leslie Beutel ("the testator"). The value of the estate is not much more than $300,000 in all. The applicant, Jeanette Therese King, alleges that she is a beneficiary under the testator's will. The respondent, June Annette Wogandt, is the executor appointed under the testator's last will. Ms King's application is for an order that the respondent show cause why she has failed to pay the sale proceeds of sale of a house at Mill Street, Rosewood ("the Rosewood house") to the applicant. Ms Wogandt, as executor and personally, cross-applies to rectify the will so that she is the named beneficiary entitled to the Rosewood house. Alternatively, she contends that under the will, properly construed, the house was given to her, or lastly that the gift of the house fails as uncertain.

[2] Thus, the questions for decision begin with who is entitled to the Rosewood house. If that person is the applicant, the remaining question is what order should be made on her application that the executor show cause as to her administration of the estate.

[3] The testator was married to his late wife for a period of approximately 40 years. She died in mid 1996. The applicant is her daughter. She is the stepdaughter of the testator.

[4] The testator's had owned the Rosewood house before his marriage to the applicant's mother. Following her mother's death, the testator asked the applicant to go to live with him there. She declined.

[5] The respondent is the testator's niece. She is the daughter of his sister. After the applicant declined to go to live with him, the testator asked if he could go to live with the respondent's family. She agreed.

[6] In August 1998, the testator made two wills only nine days apart. First, on 11 August 1998, he made a will appointing the respondent executor followed by four specific dispositions of chattels or money and a residuary disposition ("the 11 August will"). Leaving aside the specific dispositions, cl 3 provided:

"3. I GIVE the whole of my Estate to my Trustee UPON TRUST as follows:

(e) to divide the balance of my Estate between NATALIE MAREE WOGANDT, BIANCA JANE WOGANDT and JOSHUA RYAN WOGANDT as shall survive me and attain the age of twenty-one (21) years and if more than one in equal shares as tenants in common".

[7] The named residuary beneficiaries are the respondent's children.

[8] Clause 3(b) of the 11 August will provided that the testator's furniture and personal effects were to be distributed in accordance with separate written instructions.

[9] On 15 August 1998, the testator signed separate instructions in relation to a number of those chattels. They included that his washing machine and microwave oven were to be given to the applicant who was described as his "stepdaughter". Apart from the specific items all other items were to be sold and given to the respondent who was described as "my niece". However, she was not otherwise a beneficiary under the 11 August will.

[10] Secondly, on 20 August 1998, the testator made his last will ("the 20 August will"). It has been admitted to probate. Again, the respondent was appointed executor. However there was a change made to cl 3 of the 11 August will. An extra provision was added, in cl 3(a), as follows:

"I GIVE the whole of my Estate to my Trustee UPON TRUST as follows:

(a) my house at 6 Mill Street, Rosewood or the proceeds of sale therefrom to my late wife's niece JEANETTE KING."

[11] The residuary disposition was unchanged. The only other change to the dispositions was to delete a gift of a ride on lawn mower to Dorothy Kealing, a neighbour.

[12] On 27 November 2003, the testator died. Because that date was before the commencement of s 7 of the Succession Amendment Act 2006 (Qld), the current provisions of Part 2 of the Succession Act 1981 (Qld) do not apply to his will. Accordingly, the proceeding was conducted on the footing that the relevant provisions previously in force continue to apply to the testator's will. References in these reasons to "the Act" refer to the Succession Act in that form.

[13] On 15 September 2010, the 20 August will was admitted to probate. The delay is explained by the circumstances that there were two later documents purporting to be wills of the testator, respectively dated 8 November 1998 and 6 November 2002. The court determined in another proceeding that the testator lacked capacity at the times of the later documents.

[14] On 1 November 2011, the applicant learned that she may have been named as a beneficiary of the Rosewood house under the 20 August will. However, a dispute emerged between the applicant and the respondent over the gift. The description of the beneficiary under cl 3(a) as "my late wife's niece" was wrong, if the beneficiary was the applicant. The applicant was not the testator's late wife's niece. She was her daughter. There was no niece of the testator's late wife, if that description refers to a daughter of a sibling of the applicant's mother. The respondent was the testator's niece, being his sister's daughter. His late wife was her aunt only by marriage to the testator.

[15] On 26 July 2011, the Rosewood house was sold. The net sale proceeds were $168,734.93. Deductions were made from that amount for legal fees incurred by the respondent in connection with the estate. The balance which remains in the respondent's present solicitors' solicitor's trust account is $131,263.59.

[16] Because her claim is that the testator's intention was to give the Rosewood house to her, the respondent has delayed in administering the estate so as to pay the proceeds of sale to the applicant. Eventually, the applicant was moved to bring an application that the respondent show cause why she has failed to pay the proceeds of sale to the applicant ("the show cause application").

[17] Faced with that application, the respondent cross-applied for an order to rectify the will under s 31 of the Act or for a declaration that she is the beneficiary under cl 3(a) of the will, on its proper construction ("the cross-application")

(1) As from the commencement of this Act the court shall have the same jurisdiction to insert in the probate copy of a will material which was accidentally or inadvertently omitted from the will when it was made as it has hitherto exercised to omit from the probate copy of a will material which was accidentally or inadvertently inserted in the will when it was made.

(2) Unless the court otherwise directs, no application shall be heard by the court to have inserted in or omitted from the probate copy of a will material which was accidentally or inadvertently omitted from or inserted in the will when it was made unless proceedings for such application are instituted before or within 6 months after the date of the grant in Queensland."

[19] The respondent's cross-application for rectification is brought outside the six month period. However, she applies for a direction that the application be heard. In the circumstances set out below, it is unnecessary to deal separately with that subject matter.

[20] The basis of the respondent's claim for rectification is that she says she recalls an occasion where she drove the testator to the offices of Walker Pender Solicitors for an appointment with the testator's solicitor over the testator's will. She identifies that as being on 20 August 1998.

[21] While in the car, she discussed the purpose of the visit to the solicitor with the testator. She says the testator told her that "I'm leaving the house to you", meaning the Rosewood house. She says she protested against that but during further discussion in the car she suggested that the testator should leave the house to her children, instead of leaving it to her. She says that the testator agreed.

[22] She says that she then accompanied the testator into the solicitor's office, where they together met with the solicitor. I interpolate that the solicitor who prepared the 20 August will was Robert Walker who also gave evidence at the hearing. The respondent says that she recalls the testator instructing the solicitor to give the Rosewood house to her in the will. Although that was inconsistent with what was discussed in the car, she says that she did not say anything because she did not want to cause a scene or embarrass the testator in front of the solicitor.

[23] The respondent further says the testator did not give any instructions to give the Rosewood house to Jeanette King. She says the testator did not even mention Jeanette King's name during the consultation.

[24] Finally, the respondent says that after the discussion with the solicitor, the will was prepared and that she and the testator returned on the same day to the solicitor's office where the deceased signed it. She says the deceased only glanced at the will and did not read it before signing it.

[25] The version as to events on 20 August 1998 summarised above was given by the respondent in her affidavit made on 24 February 2014. It does not sit satisfactorily with the contents of the 11 August will and the 20 August will.

[26] First, her recollection of the conversation in the car is that it resulted in agreement between her and the testator that he would leave the Rosewood house to her children. That is the effect of what he did by the 11 August will, nine days beforehand. The respondent gave no evidence about her knowledge or lack of knowledge of the 11 August will.

[27] Secondly, the only way in which the respondent's account reconciles with the contents of the 20 August will is by accepting two pieces of evidence. One is that although her account of the instructions given to the solicitor on 20 August 1998 is inconsistent with the agreement made between her and testator in the car, because she was to receive the Rosewood house rather than her children, she said nothing about that when she was in the solicitor's office with the testator. The second is that neither the testator nor the respondent saw or noticed that cl 3(a) of the will provided that the Rosewood house be given to Jeanette King. On the respondent's version of events, there was no reference at all to Jeanette King on 20 August 1998. How the applicant's name came to be inserted in the will is left unexplained.

[28] There are other unsatisfactory aspects. As previously stated, the respondent makes no mention of the 11 August will. But if she and the testator were driving to the solicitor's office on 20 August 1998 so that he could give instructions for a new will, the fact was that the testator had made the 11 August will only nine days earlier. If they agreed in the car that he would leave the Rosewood house to the respondent's children, there was no reason to continue to the solicitor's office. The 11 August will already provided that the testator's property, which included the Rosewood house, was to go to the respondent's children.

[29] Faced with this difficulty, the respondent's counsel submitted that perhaps the respondent did not know about the 11 August will. That is possible, but it seems to me to be unlikely that if the testator and the respondent discussed the contents of what was to become his 20 August will within ten days of his having made the 11 August will that there would be no reference to it or that he had in effect already left the house to the respondents children.

[30] What is more likely, in my view, is that the conversation in the car occurred before the testator made his 11 August will. In my view, I should not accept the following parts of the respondent's evidence: that the testator in her presence instructed the solicitor to give the Rosewood house to her; that she did not want to cause a scene or embarrass the testator in front of the solicitor as her reason for not mentioning that such a gift was inconsistent with her conversation with the testator in the car; and that the testator did not read the will before signing it when she was present.

[31] I am confirmed in that view by the evidence of Robert Walker, the solicitor upon whom the testator attended on 11 August 1998 when the 11 August will and enduring power of attorney were prepared and executed and on 20 August 1998 when the 20 August will was prepared and executed.

[32] Mr Walker's recollection of his meetings with the testator on those two days is understandably limited. But there are important aspects of it which I accept.

[33] First, I accept that he recalls meeting the testator and the respondent on a day when the testator executed a will and an enduring power of attorney. The dates borne by the 11 August will and enduring power of attorney confirm that was on 11 August 1998.

[34] Secondly, I accept that he recalls meeting the testator on a second occasion, not long afterwards, when the testator changed his will. I accept his evidence that the respondent was not present with the testator when he took instructions from the testator on the second occasion. I accept that he has a recollection of changes that were discussed between the 11 August will and 20 August will. As he said at one point:

"The distinction between changing it away so that not all of it goes in the one direction, but goes to another part of the family, being the wife's family, I think is material, and that part of the conversation is fairly clear in my mind."

[35] I also accept that at the time he did not know who Jeanette King was and that it was the testator who gave him that name.

[36] Acceptance of those parts of Mr Walker's evidence can only be reconciled with the respondent's evidence by reaching the conclusion that the respondent has mistakenly or otherwise confused her conversation in the car with the testator and her meeting with the testator and Mr Walker of 11 August 1998 with the testator's attendance on Mr Walker on 20 August 1998.

[37] It is unnecessary and unhelpful, in my view, to go further in making findings adverse to the respondent. I do not do so. From the findings I have made, it follows that the respondent cannot discharge the onus of proof she carries on her application under s 31 of the Act, of showing that her name was accidently or inadvertently omitted from cl 3(a) of the 20 August will and that the applicant's name was accidently or inadvertently inserted instead.

[38] The respondent's alternative claim in the cross-application for the Court to declare who is the beneficiary entitled to the gift under cl 3(a) of the 20 August will is made to the Court as a court of construction. The construction of a proved or unproved will is undertaken in the equitable jurisdiction of the Court. Amendments to the constituting and procedural legislation affecting this Court appear to have clouded the statutory basis for such an application.

[39] In former times, the substantive jurisdiction of the Court as a court of probate jurisdiction and equitable jurisdiction in relation to wills was thought to have been contained in the Supreme Court of Queensland Act 1867 (Qld), s 23. More recently, the equitable jurisdiction was contained in the Supreme Court of Queensland Act 1995 (Qld), s 201. The Constitution of Queensland 2001, s 94, repealed that section. The general jurisdiction of the Court in equity is now expressly provided by the Constitution of Queensland, s 58.[1]

[40] In addition, the Succession Act 1981 (Qld), s 6(1) provides that:

"Subject to this Act, the court has jurisdiction in every respect as may be convenient to grant and revoke probate of the will or letters of administration of the estate of any deceased person, to hear and determine all testamentary matters and to hear and determine all matters relating to the estate and the administration of the estate of any deceased person; and has jurisdiction to make all such declarations and to make and enforce all such orders as may be necessary or convenient in every such respect." (emphasis added)

[41] Historically, a proceeding for the construction of a will was brought by way of an administration action. However, a summary procedure was provided for under the Rules of the Supreme Court 1900, O 64 r 1A. In 1999, on the repeal of those rules of court and their replacement by the Uniform Civil Procedure Rules 1999 (Qld) ("UCPR"), no equivalent summary procedure was provided for in Ch 15 or elsewhere. However, UCPR 11 provides, inter alia, that "[a] proceeding may be started by application if... the only or main issue in the proceeding is an issue of law and a substantial dispute of fact is unlikely". In most cases, that is a sufficient basis for an originating application to have the proper construction of a will declared. The proper construction of the instrument is a question of law. And in most cases, there is unlikely to be any substantial dispute of fact going to that question of law. Where there is likely to be a substantial dispute of fact, the proceeding should be started by claim, but the jurisdiction of the Court to entertain it is not affected by an error of that kind: UCPR rr 13 and 367.

[42] The respondent made alternative submissions that, properly construed, cl 3(a) either refers to the respondent or is uncertain and void.

[43] The first alternative was that the inconsistency in cl 3(a) between the words "my wife's niece" as a description of the beneficiary and "Jeanette King" as a named beneficiary should be resolved in favour of the description and the conclusion, arrived at by extrinsic evidence, that the respondent was "my wife's niece".

[44] As the respondent's argument was finally developed, the second alternative submission was that no extrinsic evidence is receivable to show what the testator's intention actually was on 20 August 1998. The respondent submitted that no evidence of that kind was admissible under the provisions of the Act applicable to the testator's will (ie. prior to the 2006 amendments) and that in the absence of any such evidence the inconsistency between the relationship of the beneficiary, "my late wife's niece" and the name of the beneficiary, "Jeanette King", could not be resolved. It was submitted that it is impossible in those circumstances to say from the terms of the will itself who the testator intended to favour under cl 3(a). The consequence that follows is that the gift fails for uncertainty and is void. In that event, the Rosewood house is "property... to be included... in any residuary disposition in the will".[2]

[45] The respondent relied on Perpetual Trustee Co Ltd v Gilmore[3] in support of those contentions. In my view, that case is not relevant here. The problem is not of the same kind.

[46] Here the question is how to resolve an internal inconsistency in cl 3(a) between the description of the relation of the intended beneficiary to the testator's late wife and the name of the intended beneficiary. Although one can find dictionary meanings of "niece" which would extend it beyond a daughter of a sibling of the testator's late wife,[4] and the case law considers whether a reference to a "niece" in a will is a reference to a niece by affinity or marriage as well as a niece by blood relationship or consanguinity,[5] it seems to me that a better approach in the present case is to see whether the resolution of the inconsistency appears if the Court places itself in the position of knowledge that the testator had of the relevant family members,[6] or whether the disposition is, even then, insensible.

[47] Of course, the testator knew that the respondent is the daughter of his sister. She also falls within the scope of the ordinary meaning of the word "niece" in relation to the testator's late wife. But in ordinary parlance, some people distinguish between nieces and nephews by marriage and nieces and nephews by blood. There is no apparent reason why the testator would have described the respondent as his "late wife's niece" when she was his niece because she was the daughter of his sister. It seems more likely that he might have described her as his own niece, that is "my niece", rather than "my late wife's niece".

[48] In addition, the testator knew that Jeanette King was his late wife's daughter, not her niece. In his 15 August 1998 instructions, he described her correctly as his "stepdaughter". There was no other niece of the testator's late wife, let alone one named Jeanette King.

[49] In my view, any doubt about who is the intended beneficiary by reason of the inconsistency between the expression of relationship and the name in cl 3(a) of the testator's last will and testament is resolved in favour of the name. There is no reason I can see, in the circumstances, why the appropriate conclusion is that the inconsistency cannot be resolved. The gift is not so insensible that it must fail as being uncertain.

[50] Alternatively, from what appears above, there can be no doubt that, if Mr Walker's evidence could be received on that subject, the inconsistency between "my late wife's niece" and "Jeanette King" should be resolved in favour of "Jeanette King". However, I have not found it necessary to rely on that evidence.

[51] For those reasons, in my view, whilst it should be directed that the respondent's cross-application for rectification of the will should be heard, the claim for the orders sought in pars 1 and 2 thereof must be dismissed.

[52] As to par 3, it should be declared that the applicant Jeanette Therese King is the beneficiary identified in cl 3(a) of the testator's last will.

[53] The progress of the administration of the estate under the will has been slow but not productive. An executor's duties are provided for by the Act, in s 52, as follows:

"(1) The personal representative of a deceased person shall be under a duty to -

(a) collect and get in the real and personal estate of the deceased and administer it according to law; and

(b) when required to do so by the court, exhibit on oath in the court a full inventory of the estate and when so required render an account of the administration of the estate to the court; and

(c) when required to do so by the court, deliver up the grant of probate or letters of administration to the court; and

(d) distribute the estate of the deceased, subject to the administration thereof, as soon as may be; and

(i) from the first anniversary of the death of the testator until payment of the legacy; or

(ii) in the case of a legacy that is, pursuant to a provision of the will, payable at a future date - from that date until payment of the legacy;

at the rate of 8% per annum or at such other rate as the court may either generally or in a specific case determine, unless any contrary intention respecting the payment of the interest appears by the will.

(1A) Nothing in subsection (1) abrogates any rule or practice deriving from the principle of the executor's year or any rule or practice under which a beneficiary is entitled to receive interest upon any legacy from the date of the testator's death.

(2) If the personal representative neglects to perform his or her duties as aforesaid the court may, upon the application of any person aggrieved by such neglect, make such order as it thinks fit including an order for damages and an order requiring the personal representative to pay interest on such sums of money as have been in the personal representative's hands and the costs of the application."

"(1) This rule applies if an executor, administrator or trustee neglects or refuses to comply with a beneficiary's written request -

(a) to apply for and take all necessary steps to register the transmission of any real or leasehold estate; or

(b) if the executor, administrator or trustee has or is entitled to the legal estate in the land - to convey or transfer the land to the person entitled to it; or

(c) to pay or hand over any legacy or residuary bequest to the person entitled to it.

(2) The beneficiary may apply by application for an order calling on the executor, administrator or trustee to show cause why the person should not comply with the request.

(3) The court may direct that the proceedings the court considers appropriate be taken against the executor, administrator or trustee."

[55] The testator died on 27 November 2003. As previously mentioned, by the time of his death, he had made purported wills later than the 20 August will. The respondent applied for letters of administration for one of those wills. On 6 November 2009, the Court decided that the testator did not have testamentary capacity at the time of making the later purported wills. On 15 September 2010, the respondent proved the 20 August will.

[56] At the time of his death, the testator's assets were:

11/20 tenant in common interest in 9 River Park Court Dundathu ($156,000 x 11/20) (the Dundathu property)

[57] On 16 June 2011, the Rosewood house was sold for a little over $200,000. The proceeds of sale were dealt with as follows:

[58] That sum was held in the respondent's solicitors' trust account. Two amounts were deducted from that balance on account of legal fees for the administration of the estate, as follows:

[59] Section 59 of the Succession Act 1981 (Cth) provides for the order in which debts payable out of a solvent estate should be paid out of the assets of the estate. According to that order the first relevant class of assets comprises property comprising the residuary estate of the deceased, which includes the estate's 11/20 share of 9 River Park Court, Dundathu.

[60] The respondent accepts that the legal fees on account of the administration should have been paid out of the residuary estate. They should not have been paid out of the fund created by the proceeds of sale of the Rosewood house.

[61] Reversing the effect of those deductions, the respondent's solicitor swore that the assets and liabilities of the estate near the date of hearing were:

Proceeds of sale of 97 Mill Street, Rosewood (actual balance is $131,263.59 after costs have been paid in amounts of $19,754.58 and $17,013.56)

Interest earned to 31 March 2014 on proceeds of sale of Rosewood property

11/20 tenant in common interest in 9 River Park Court, Dundathu ($245,000 x 11/20)

Mortgage over 9 River Park Court, Dundathu ($75,500 x 11/20)

Monies possibly owed to Public Trustee of Queensland

Executor's costs paid to Geldard Sherrington Lawyers

[62] The evidence shows a number of points. First, the respondent has on any view delayed the resolution of the affairs of the estate. I infer that the reasons for doing so have included her dissatisfaction with the gift made by the testator to the applicant and her interest in and possession of the Dundathu property. Second, the respondent erroneously authorised the deduction of the lawyers' fees from the proceeds of sale of the Rosewood house. Third, the proceeds of sale of the Rosewood house do not appear to have been invested appropriately pending resolution of the question of the beneficiary entitled to the gift of the Rosewood house. Fourth, the respondent has not collected and got in the estate's interest in the Dundathu property. The respondent has an interest in that property and has been living in it throughout the relevant period. Fifth, it may be that the respondent seeks to have her legal fees of these proceedings treated as expenses of the administration. If the liabilities of the estate are as stated, the residuary estate is insufficient to restore to the applicant the balance of the proceeds of sale of the Rosewood house and to meet those liabilities. That is before any question of the applicant's costs is dealt with.

[63] In my view, the respondent has not shown cause why she has not complied with the applicant's request that she pay the applicant the balance proceeds of sale of the Rosewood house as a legacy under cl 3(a) of the will. Subject to any order for costs that might be made and to the need for the fund held to discharge the gift under cl 3(a) being required to meet the debts of the estate, an order should be made that the respondent pay that sum to the applicant from the assets of the estate, if the estate were in liquid funds. At present, there are insufficient liquid funds, because of the deductions of the legal fees incurred in the administration of the estate referred to previously, which should not have been made, and because the respondent has not proceeded to collect and get in the balance of the estate represented by the Dundathu property.

[64] It is appropriate to deal with the question of costs of these proceedings and the estate's liability for any such costs before dealing with other matters. The respondent submits that the costs of the applicant's show cause application and of the respondent's cross-application for rectification and construction be paid from the proceeds of the sale of the Rosewood property.

[65] The basis of the respondent's costs submission is that the costs of the parties should be paid out of the estate, as testamentary expenses, and that the testator caused the problem or that the problem only concerned the gift in cl 3(a), so that the discretion should be exercised by ordering the costs to be paid out of the fund held to discharge that gift.[7]

[66] The relevant statutory framework as to an order for costs begins with the Court's power, contained in the Civil Proceedings Act 2011 (Qld), s 15, to "award costs in all proceedings unless otherwise provided". Before that section was introduced, the power resided in the Supreme Court of Queensland Act 1995 (Qld), s 221. The UCPR provides for the exercise of that power as well, by Pt 2 of Ch 17A, including rr 681 and 700.

[67] Second, s 57 of the Succession Act 1981 (Qld) recognises the priority that is given to the payment of testamentary and administration expenses by providing that where the estate of a deceased person is insolvent, "the funeral, testamentary and administration expenses have priority". Third, the costs of obtaining proper legal advice including the costs of any application to the Court as to the interpretation of the will may be "testamentary expenses".[8]

[68] Thus, the respondent submits that even though she was unsuccessful on her cross-application, the costs of that application including any costs which she might be ordered to pay to the applicant should be ordered to be paid from the assets of the estate or that she is entitled to an indemnity for those costs as a testamentary or administration expense.

[69] The respondent submitted that the order of payment of testamentary expenses as a debt under s 59 of the Succession Act 1981 (Qld) would require that the amount of an order for costs be paid out of the property comprising the residuary estate. However, she relied on s 100 of the Trusts Act 1973 (Qld) as authorising a different order. In my view, it is not clear that s 100 applies. Its terms are not as clear as s 93 of the Trustee Act 1925 (NSW). But I accept that the court has the power to order that the costs of the proceedings over cl 3(a) of the will should be ordered to be paid out of the estate and an order that the costs should be paid out of the fund held to discharge that gift.

[70] In my view, the whole of the costs of the proceedings in the present case do not sit comfortably as properly incurred testamentary or administration expenses to which the respondent should be entitled to an indemnity. I accept that there was a question whether on the proper construction of the will the applicant was the person entitled to the benefit of the gift under cl 3(a). Had the respondent confined her opposition to that question and done so avoiding "undue delay, expense and technicality",[9] an order that the costs of the respondent's application to determine that question be paid out of the estate from the fund held to discharge the gift under cl 3(a) might have been appropriate. However, the respondent's application for rectification of the will under s 31 of the Succession Act 1981 (Qld) was not that. It was her attempt to overturn the testator's gift to the applicant, made in her own, that is personal, interest. Second, the respondent's delay has not been justified. The delay alone, together with the unsatisfactory nature of the respondent's responses to written requests to pay the applicant her bequest warranted the applicant's application that she should show cause under UCPR, r 643.

[71] Nevertheless, some of the costs incurred by both parties might be attributed to the erroneous description of the applicant as the testator's late wife's niece in the will. It is also true to say that those costs were attributable to the testator in terms of the drafting of the will and only concerned the gift in cl 3(a), so to that extent it might be appropriate to order that the costs be paid out of the fund held to discharge the gift under cl 3(a).

[72] The applicant submitted that the respondent's overall opposition should be seen as adversarial and as acting for the benefit of herself and her children. She submits that the only reasonable construction of the will is that she is the true beneficiary under cl 3(a) as the named beneficiary. Therefore, the applicant submits that even the costs of the construction question are costs that the estate should not be ordered to pay. The applicant submits that the respondent should be ordered to pay the applicant's costs personally. The Court has the discretionary power to make such an order.[10]

[73] In my view, as between the present parties, the estate should bear some of the costs out of the fund held to discharge the gift under cl 3(a), and the respondent should be ordered to pay the balance of the applicant's costs. The applicant is not otherwise concerned with any entitlement to an indemnity that the respondent might have or not have, provided that the applicant's costs are not limited to the assets of the estate under UCPR, r 700.

[74] Accordingly, in my view, it should be ordered that the sum of $30,000, being $15,000 of the applicant's costs of the respondent's cross-application and $15,000 of the respondent's costs of the respondent's cross-application, be paid from the balance proceeds of the sale of the Rosewood house. Otherwise, in my view, the respondent should be ordered to pay the applicant's costs of the applicant's show cause application and the respondent's cross-application for rectification and construction of the will. Further, in my view, the respondent should not be entitled to an indemnity from the assets of the estate for her costs of these proceedings, including the costs she is ordered to pay to the applicant, except to the extent of the sum of $30,000 previously referred to.

[75] After deduction of the sum of $30,000 on account of costs from the balance proceeds of the sale of the Rosewood house, the amount payable to the applicant in respect of the gift to her under cl 3(a) of the testator's last will is $138,031.73.

[76] At the conclusion of oral argument on the applications, I requested that the parties attempt to agree upon the order that should be made for the progress of the winding up of the estate. Regrettably, they were not able to do so. Both parties made written submissions as to the orders that should follow, including an interim distribution to the applicant. However, there are other beneficiaries and creditors whose interests would or might be affected by those orders who were not heard upon the question whether an interim distribution order should be made.

[77] In the circumstances, the respondent should be ordered to sell the estate's interest in the Dundathu property so as to collect and get in the estate of the testator and to administer the estate according to law. If she fails to do so within a reasonable time, the applicant may apply for an order that she be replaced as the personal representative of the estate.

[78] The respondent should be ordered to pay the applicant's costs of the applicant's application to show cause filed on 10 January 2014.

[1] It is unnecessary for present purposes to consider the impact of the Constitution of Australia.

[2] Succession Act 1981 (Cth) (Reprint No. 5C revised edition), s 28(b).

[3] (1979) 2 NSWLR 716, 719.

[4] For example, "a remote female descendant": Shorter Oxford English Dictionary, (Oxford, Oxford University Press, 2007, 6 ed), p 1925.

[5] Trustees Executors & Agency Co Ltd v Johnston [1970] VicRp 77; [1970] VR 587, 588.

[6] Woodgate v Tanks [2013] QSC 204, [16]; O'Brien v Smith [2013] 2 Qd R 223, [14]-[15]; Re Minton; Public Curator (Qld) v Toohey [1939] St R Qd 159; Re Lawton (1909) 5 Tas LR 1.

[7] Keulemans v Attorney-General (NSW) [2013] NSWSC 1772, [45]-[48]; Kostka v The Ukrainian Council of NSW Inc [2013] NSWSC 222, [72]; Tasmanian Perpetual Trustees Ltd v Bell [2010] TASSC 1, [36]; Murdocca v Murdocca (No 2) [2002] NSWSC 505, [71]-[80].

[8] Murdocca v Murdocca (No 2) [2002] NSWSC 505 [41]; Re Stone; Read v Dubua [1936] NSWStRp 50; (1936) 36 SR (NSW) 508, 524-525.

[10] For example, see Miller v Cameron [1936] HCA 13; (1936) 54 CLR 572, 578-579.