Re Schubert (deceased) [2025] QSC 193 | Case summary

Judgment (45 paragraphs)

[1]

[1] This is an application brought for revocation of a grant of probate and the grant of letters of administration to a will where the estate is almost completely distributed.
[2] Bernhardt Edlewyn Schubert also known as Bernhard Edlewyn Schubert formerly known as Bernard Edlebert Schubert, who I will, with respect refer to simply as "Bernhardt"[1] was married to Gloria Loveday Myee Frewen Schubert. By a prior relationship Bernhardt had a son, Bernard Neil Schubert. He also had a daughter, Glennis Dulcie Syddll.
[3] On 22 December 1995, Bernhardt made what would be his last will.
[4] By the will, Bernhardt:

[2]

(a) appointed Martin John Kurvink, the present first applicant, and Gloria as executors and trustees of his estate;

(b) left a life estate in parcels of land in Victoria to Gloria with the remainder interest to Bernard;

(c) made a number of specific bequests; and

(d) left the rest and residue to Gloria, but if she should not survive him then to Bernard and Glennis in equal shares.

[3]

[5] Bernhardt died on 13 May 2002. Probate was granted to Martin and Gloria on 3 October 2002.
[6] Martin and Gloria administered the estate pursuant to the will. The specific bequests were paid and the rest and residue passed to Gloria.
[7] The land in Victoria remained registered in the name of Bernhardt. That property is commercial in nature and Bernard has, since Bernhardt's death, conducted upon it a business known as "Schuberts' Nursery". That business was originally operated by Bernhardt and Bernard.
[8] In recognition of Gloria's life estate in the land in Victoria, Bernard paid all rates and other charges and insurance costs, and paid Gloria rental of $1200 per month.
[9] Gloria died on 6 October 2022. Martin does not wish to continue as an executor of the estate.
[10] The only step left to take in the administration is the transfer of the Victorian properties to Bernard.

[4]

(a) whether the application should proceed without oral hearing; and

(b) whether Martin should be removed as executor and letters of administration granted to Bernard.

[5]

Should the application be determined without oral hearing?

[6]

[12] Rule 489 of the Uniform Civil Procedure Rules 1999 (Qld) provides for applications to be determined without oral hearing. Rule 489 provides:

[7]

"489 Proposal for decision without oral hearing

[8]

(1) A party making an application, including an application in a proceeding, may propose in the application that it be decided without an oral hearing.

[9]

(2) If the applicant proposes the application be decided without an oral hearing, the court must decide the application without an oral hearing unless -

[10]

(a) under rule 491, the court considers it inappropriate to do so; or

(b) under rule 494, the respondent requires an oral hearing; or

(c) under rule 495, the applicant abandons the request for a decision without an oral hearing; or

(d) the Chief Justice or Chief Judge suspends the operation of this rule by direction."

[11]

(a) jurisdiction to proceed without an oral hearing is granted;

(b) that jurisdiction is enlivened by a proposal by an applicant; and

(c) the proposal must be accepted by the Court in the absence of any of the circumstances prescribed in rr 489(2)(a)-(d).

[12]

[14] Here, Martin and Bernard make the proposal that the application be decided without an oral hearing.[2]
[15] Further:

[13]

(a) there are no respondents and in particular, there is no respondent requiring an oral hearing;[3]

(b) neither Martin nor Bernard has abandoned the request for a decision without an oral hearing;[4] and

(c) the Chief Justice has not suspended the operation of r 489 by direction.[5]

[14]

[16] Therefore, the only question is whether it is appropriate to proceed without an oral hearing.[6]
[17] Here, the application is not contentious. The facts are clear. The relief sought is sensible and pragmatic and, for reasons which appear below, should be given. There is nothing to suggest that it is inappropriate to proceed by way of oral hearing and the application should proceed on that basis.

[15]

Should the probate granted to Martin be revoked and letters of administration granted to Bernard?

[16]

[18] Rule 642 provides as follows:

[17]

(1) The court may, on application, revoke a grant or make a limited grant if -

[18]

(i) the personal representative is no longer capable of acting in the administration; or

(ii) the personal representative can not be found; or

(iii) the grant was made because of a mistake of fact or law; or

[19]

(b) the personal representative wants to retire from the administration.

[20]

(2) With the consent of the parties, the registrar may exercise the jurisdiction of the court under this rule.

[21]

(3) If the court revokes a grant or replaces it with a limited grant, the personal representative must bring the original grant into the registry as soon as practicable after the order is made.

[22]

(4) On the hearing of an application under this rule, the court may direct that the proceeding continue as if started by claim and give any directions it considers appropriate."

[23]

[19] Here, the jurisdiction is enlivened by r 642(1)(b) as Martin wishes to retire as executor.
[20] There is no evidence of any default by Martin in the administration, nor any opposition to his retirement by Bernard who is the only person with an interest in the estate.
[21] The grant of probate to Martin should be revoked. There is no need for an order pursuant to r 642(3) that he brings the original grant into the registry as the original probate is already on the Court file.
[22] Rule 603 concerns the priority for applicants for letters of administration with the will. Rule 603(1) provides:

[24]

"603 Priority for letters of administration with the will

[25]

(1) The descending order of priority of persons to whom the court may grant letters of administration with the will is as follows -

[26]

(b) a life tenant of any part of the residuary estate;

[27]

[28]

(e) a person otherwise entitled to all or part of the residuary estate, by full or partial intestacy;

[29]

(g) a creditor or person who has acquired the entire beneficial interest under the will;

[30]

(2) The court may grant letters of administration with the will to any person, in priority to any person mentioned in subrule (1).

[31]

(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.

[32]

(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.

[33]

(5) A document providing evidence for subrule (4) must be an exhibit to the affidavit in support of the application.

[34]

(6) The applicant need not establish priority for a person equal to or lower than the applicant in the order of priority."

[35]

[23] Gloria is deceased and all other beneficiaries named in the will have received their benefits. Bernard and Glennis, as beneficiaries of the residue,[7] have priority over Bernard as a specific legatee.[8] Rule 603 does not limit the Court's jurisdiction to appoint the most appropriate administrator notwithstanding that person may have priority.[9] The only outstanding issue is the transfer of the Victorian properties to perfect the specific grant to Bernard.
[24] Bernard stands in priority. He has the only remaining interest in the partially administered estate. He should receive a grant of letters of administration so that he can perfect the gift of the land in Victoria to himself.
[25] Although an order for costs might not have any practical effect, Bernard should have an order for costs.

[36]

[26] It is ordered:
1. That the grant of probate of the will issued by the Court to Martin John Kurvink and Gloria Loveday Myee Frewen Schubert in proceedings number BS 8931 of 2002 on 3 October 2002 be revoked pursuant to Uniform Civil Procedure Rules 1999 (Qld), r 642(1)(b).
2. That letters of administration of the will of Bernhardt Edlewyn Schubert also known as Bernhard Edlewyn Schubert formerly known as Bernard Edlebert Schubert be granted to Bernard Neil Schubert subject to the formal requirements of the Registrar.
3. That the applicants' costs of and incidental to the application be paid from the estate of the deceased on the indemnity basis.

[37]

[1] I will, for the sake of convenience and without intending any disrespect, refer to the persons by their Christian names.

[38]

[2] Uniform Civil Procedure Rules 1999, r 489(1).

[39]

[3] Uniform Civil Procedure Rules 1999, r 494.

[40]

[4] Uniform Civil Procedure Rules 1999, r 495.

[41]

[5] Uniform Civil Procedure Rules 1999, r 489(2)(d).

[42]

[6] Uniform Civil Procedure Rules 1999, r 489(2)(a).