Brown v Owen [2026] QSC 103

SUPREME COURT OF QUEENSLAND CITATION: Brown v Owen [2026] QSC 103 PARTIES: MS BROWN as legal guardian for her son NCO (Applicant) v MS OWEN, Executor (First respondent) and MR OWEN, Executor (Second respondent) FILE NO: 4 of 2026 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Cairns DELIVERED ON: 20 May 2026 DELIVERED AT: Cairns HEARING DATE: 8 May 2026 JUDGE: Henry J ORDERS: 1. Application dismissed. 2. The respondents will file and serve any further submissions in writing (not exceeding four pages) and any further affidavit evidence which they seek to advance, as to the appropriate order for costs by no later than 4pm 27 May 2026. 3. The applicant will file and serve any further submissions in writing (not exceeding four pages) and any further affidavit evidence which she seeks to advance, as to the appropriate order for costs by no later than 4pm 3 June 2026. 4. The respondent will file and serve any written submission in reply as to costs (not exceeding two pages) and any affidavit evidence in response, by no later than 4pm 8 June 2026. CATCHWORDS: SUCCESSION – APPLICATION FOR REMOVAL – SPECIAL GIFTS – where the respondents were appointed as executors of the deceased will – where the first respondent was the major beneficiary of the estate and the second respondent was the deceased’s brother – where the first respondent was married to the deceased and had two children together – where -- 1 of 9 -- 2 the applicant was the deceased’s former partner and they had a child together – where the deceased left special gifts in his will to his children – where the applicant acted as litigation guardian for her son – where the applicant’s son was a minor beneficiary – where the applicant brought an initially unserved application for removal of the respondents as executors – where estate funds were subsequently distributed to the first respondent – whether the Court should interfere with the testator’s choice of executor – whether there has been misconduct jeopardising the due and proper administration of the estate s 6, Part 4, s 41, s 44(3) Succession Act 1981 (Qld) Baldwin v Greenland [2007] 1 Qd R 117, cited Bates v Messner (1967) 67 SR (NSW) 987, cited Re Hartley [2020] QSC 251, cited COUNSEL: T J Naylor, for the respondents SOLICITORS: Applicant represented herself. The Will and All, solicitors for the respondents. [1] The applicant, Ms Brown, and the deceased had a child together, referred to in these reasons as NCO. NCO is now 15. [2] Subsequent to NCO’s birth, the deceased married the first respondent, Ms Owen. They had two children together, now aged nine and six. Prior to the deceased’s death on 4 April 2025 from thromboembolism and coronary atherosclerosis, NCO had been residing with the deceased and Ms Owen. That was evidently pursuant to Family Court parenting orders made in about 2015, which also provided for Ms Brown to have timetabled contact with NCO. [3] The deceased’s will, executed on 21 June 2018, appointed Ms Owen and the deceased’s brother, Mr Owen, as executors. In the event they were unable or unwilling to act or continue, the will appointed the deceased’s father, Mr Owen senior, as his executor. [4] The deceased’s will made specific gifts of his family service medals to be held on trust by the executors for his son NCO until he attains the age of 18; his service medals to be held on trust by his executors for his daughter OAO until she attains the age of 18; and his RAR beret to his mother, Mrs Owen senior. The will bequeathed the rest of the deceased’s estate to Ms Owen and, if she did not survive him, to all of his children in equal shares. Self-evidently, Ms Owen did survive him and is therefore entitled to the whole of the residual estate, other than the specific gifts. [5] The deceased’s death on 4 April 2025, was evidently unexpected and it is NCO who is said to have first discovered his body. In the wake of the deceased’s death there was a dispute over custody of NCO, resulting in proceedings in the Family Court, initiated on 17 April 2025 but not resolved until 22 September 2025 when orders were made, effectively giving Ms Brown custody of her son subject to Ms Owen being -- 2 of 9 -- 3 permitted some occasional rights of timetabled access. It is quite obvious that, while that final order was a consent order, Ms Brown considers Ms Owen’s initial resistance of that proceeding involved conduct unnecessarily prolonging its resolution. [6] Notwithstanding that, excluding specific gifts, the first respondent Ms Owen is the sole beneficiary of the residual estate, Ms Brown has brought an application, as NCO’s litigation guardian, for the removal of Ms Owen, and Mr Owen for that matter, as executors and for an independent administrator to be appointed by the Court. The determination of the application requires consideration of these issues: 1. Why is this not an application for further provision? 2. Were the executors precluded from partly administering the estate? 3. Does the applicant have standing? 4. What must be shown to justify the Court’s intervention? 5. Should the Court intervene? Why is this not an application for further provision? [7] Probate of the deceased’s will had been granted to the respondents on 5 August 2025. On 18 September 2025 Queensland Estate Lawyers, solicitors engaged as NCO’s lawyers, by Ms Brown as his guardian, wrote to the respondents’ solicitors, The Will and All. The letter gave notice of Ms Brown’s intention to seek further and better provision from the deceased’s estate pursuant to Part 4 Succession Act 1981 (Qld), on the basis that adequate provision had not been made from the estate for NCO’s proper maintenance and support. The letter went on to assert that no distribution should be made from the estate until the intended claim was dealt with and requested various information about the content of the estate and about any distributions made. [8] On 27 October 2025 The Will and All, in turn, wrote to Queensland Estate Lawyers, enclosing a copy of the will, death certificate and ‘draft statement of assets, liabilities and testamentary expenses’ indicating estimated assets of $774,693.30 and liabilities and expenses totalling about $33,000. The letter confirmed no distributions had been made from the estate and that the respondents had been advised of their obligations to refrain from distributing the estate ‘until agreement or court order’. The letter went on to request a provision of an array of information on behalf of NCO, including a statement of financial position, information about NCO’s need for maintenance, education and advancement, and the intended disposition of any provision on NCO’s behalf. [9] The letter went on to state the following: Our clients acknowledge no provision has been made for [NCO] and welcome the opportunity to engage in meaningful discussion regarding the appropriate provision, once we have ascertained the assets and liabilities of the estate and superannuation entitlements are established. However, we are instructed that your client has failed to pay child support to the deceased as ordered, and that a total of approximately -- 3 of 9 -- 4 $36,000.00 is owed to the Estate. We are further instructed that in the course of family law matters spanning approximately a decade, your client failed to pay costs ordered by the Court totalling approximately $55,000.00. A copy of the Order of the Federal Circuit Court of Australia awarding costs is attached together with the Court’s reasons. Please advise of your client’s position in relation to these debts. If your client disputes these debts, it is our clients’ position that [Ms Brown] is in a position of conflict and is not a suitable litigation guardian for [NCO]. Our clients further take the position that an independent third party should be appointed to act as litigation guardian on [NCO’s] behalf. In circumstances where your client continues to act as litigation guardian for [NCO], we reserve our clients’ right to seek her removal and appointment of an independent third party and will rely on this correspondence with respect to the issue of costs. We anticipate receiving instructions from our clients to forward a without prejudice proposal once we have received information regarding [NCO’s] position and ascertained the assets and liabilities and superannuation entitlements. (emphasis added) [10] It emerged in the hearing of the present application that Ms Brown thought the position taken by the respondents’ solicitors about a potential conflict, her potential removal and the potential appointment of an independent third party to act on behalf of NCO meant she could not act on behalf of NCO in pursuit of an application for further provision for NCO from the deceased estate pursuant to s 41 Succession Act 1981 (Qld). That is incorrect. The position taken in the letter did no more than flag a potential future opposition to Ms Brown being allowed by the Court to act as her son’s litigation guardian. [11] Solicitors involved in litigation or potential litigation commonly assert issues against their opponents about which they purport to reserve their rights. There is sometimes substance to those assertions and sometimes there is not. Moreover, such assertions are sometimes made so prematurely that it is impossible to predict whether there is substance to them. It is not possible and, in any event, unnecessary to express any concluded view about whether there would be substance to a complaint of conflict if raised. It is sufficient to observe that in a case of the present kind, where Ms Owen herself has an obvious financial interest in conflict with the prospective interest of NCO as a claimant for further provision against the estate, that a court would likely be reluctant, without knowing more, to preclude NCO’s own mother from acting as his litigation guardian merely because she and Ms Owen are in disagreement as to whether the mother owes the estate anything. [12] Be all that as it may, Ms Brown’s misunderstanding of the correct position appears, regrettably, to have caused her to not pursue a provision application on behalf of her son and to, instead, pursue the present application. Were the executors precluded from partly administering the estate? -- 4 of 9 -- 5 [13] Ms Owen’s lawyers, not having had a response to their letter of 27 October 2025, again wrote to Ms Brown’s solicitor, Queensland Estate Lawyers, on 25 November 2025, asking when they might anticipate a response to their correspondence and disclosing in respect of the deceased’s superannuation that no binding death benefit nomination was in place and that information about the deceased’s account indicated the likely balance of the deceased’s superannuation was approximately $576,515.55. On the same date, Queensland Estate Lawyers responded, indicating they had sought their clients’ instructions and instructions had not been received. [14] Then, on 4 December 2025 Queensland Estate Lawyers again wrote to the respondents’ solicitors, announcing: We confirm we no longer act for [NCO] via his guardian and parent [Ms Brown]. We have sought instructions from [Ms Brown] to provide you with her contact details and she has declined. We apologise we cannot assist further with those details. [15] It is not without irony that Ms Brown, in choosing not to allow her contact details to be provided, complained to the Court at the first return date of her application that she did not have the respondents’ contact details. [16] Ms Brown had purported to serve the present application upon the respondents by delivering it to The Will and All on 13 January 2026. The Will and All sought instructions from the respondents whether they had instructions to accept service of the proceeding. The respondents indicated they would not provide such instructions, well understanding this would mean that Ms Brown would need to personally serve them. Notably, The Will and All must have been continuing to act as the respondents’ solicitors in connection with the estate because the trust transfer record of The Will and All shows that on 5 February 2026 $15,391.50 was transferred to an ‘estate administration matter’ from funds held in respect of the prospective ‘family provision application’ to funds held for the estate. [17] This avoidance of service by instructing the estate’s lawyers not to receive service of an application against them as executors, necessitated Ms Brown having to come back before the Court to obtain an order for substituted service. In circumstances where Ms Brown deposed to not being able to ascertain the respondents’ contact details and it was obvious that The Will and All would have been in a position to communicate with them, I made that order on 18 February 2026. [18] In the meantime, on 2 February 2026, knowing they had to that point avoided service of the present proceeding, the executors distributed $593,493.50, which was the bulk of estate funds, to the first respondent, Ms Owen, as beneficiary. [19] It will be recalled that the applicant gave notice of the intended application for provision on 18 September 2025. This had the consequence, pursuant to s 44(3) Succession Act 1981 (Qld) that, as long as the executors did not distribute part of the estate prior to the expiration of nine months from the deceased’s death, no action can lie against them by reason of making a distribution. Nine months from then would have been 4 January 2026. On the face of it then, no action can lie against the executors by reason of them having made the abovementioned distribution, however -- 5 of 9 -- 6 unattractive it may seem that they did not make the distribution until after they avoided the attempt to serve them via their solicitors. To remove doubt, this was not a case in which there was any interim order precluding their continued administration of the estate pending the service and hearing of this application. Does the applicant have standing? [20] The threshold issue in an application of the present kind is whether the applicant has standing to bring it. At the hearing it was eventually acknowledged that Ms Brown has standing as NCO’s litigation guardian to bring the present application on his behalf. What though of whether, through her, NCO has standing? For the reasons explained in Re Hartley1, he would, as an applicant for provision have standing, yet no such application has been made. However, he is in any event a beneficiary, albeit a very minor beneficiary, under the existing will and thus has an interest in the due administration of the estate sufficient to sustain the standing to bring the present application. What must be shown to justify the Court’s intervention? [21] That NCO is only a very minor beneficiary under the will and that no application for provision has been made on his behalf, are nonetheless unhelpful to the merits of his application. That is particularly so given that, but for the gifts of medals and a beret, the residue of the estate was bequeathed to the same beneficiary who Ms Brown seeks to remove as executor. [22] There is not a skerrick of evidence to suggest that Ms Owen and Mr Owen will fail to honour their obligations as executors under the will to pass on the deceased’s gift of some medals to NCO when he turns 18. What other possible concern can be advanced on behalf of NCO in support of an application to remove the very person who is entitled to the balance of the estate as the executor of that estate? [23] In an application of the present kind it is not enough that the applicant, or at least the applicant’s litigation guardian, has no personal confidence in the executor because of a history of dispute between the litigation guardian and executor. The Court’s inherent power, and its implied power pursuant to s 6 Succession Act 1981 (Qld), to remove executors will ordinarily be exercised only exceptionally, for the Court will not lightly interfere with a testator’s choice of appointment of executor.2 Implicit in that choice is that, even if a litigant such as Ms Brown has no confidence in the person chosen, the testator plainly did. [24] In an application of the present kind the Court’s decision-making is informed by the nature of the executor’s obligation, namely the due and proper administration of the estate in the interests of creditors and beneficiaries.3 The question then becomes whether the conduct of the executor has prevented or put the due and proper administration of the estate and the interests of those beneficiaries entitled under the will in jeopardy. Should the Court intervene? 1 [2020] QSC 251. 2 Baldwin v Greenland [2007] 1 Qd R 117 [44]. 3 Bates v Messner (1967) 67 SR (NSW) 187, 191-2. -- 6 of 9 -- 7 [25] It is conceivable there may be cases in which it is shown by a combination of conduct, in connection with the administration of the estate and other conduct, that the executor should no longer be entrusted to carry out the due and proper administration of the estate.4 [26] The arguments advanced by the applicant seized upon the so-called cumulative effect of an array of matters set out in summary in the italic subheadings below. Beneath each of those subheadings these reasons now explain why there is no substance to the matters complained of in connection with the present application. (a) Prolonged guardianship proceedings resulting from material non-disclosure It is unnecessary to resolve whether there was material non-disclosure by Ms Owen in the Family Court proceeding relating to NCOs custody. Such evidence as there is of her conduct in that litigation does not support some broad inference that she is generally an unfit person to be an executor. Further, Ms Owen’s role in that litigation was in her own right and not in her capacity as an executor of the estate. Even if, in the conduct of the Family Court custody litigation, Ms Owen prolonged the proceeding because of the alleged material non-disclosure, it does not logically follow that she will not honestly and in a timely way tend to the due and proper administration of the estate. Indeed, to the extent there is evidence of delay in the due administration of the estate, it lies in the delay in the timeframe for distribution occasioned by Ms Brown’s giving of notice of the intention to bring a provision application which she did not then bring. (b) Estate administration progressing while [NCO] lacked independently recognised representation The complaint simply reflects Ms Brown’s misconception of the letter from The Will and All as meaning that she could not represent NCO as his litigation guardian. Until such time as a court orders she cannot do so, and it is not necessarily apparent a court would so order, she has been entitled to advance a provision application for her son and failed to do so. (c) Inconsistent treatment of asserted liabilities (d) Unsupported executor assertions (e) Absence of documentary records (f) Absence of updated accounting treatment (g) Unresolved accounting questions Matters (c) to (g) inclusive involve a bundle of complaints regarding the accuracy of the information provided by the executors about the estate. It is sufficient to observe that they lack substance and stem largely from Ms Brown’s disagreement with such information as has been provided because of how the executors categorise assets and liabilities of the estate, with the strongest disagreement going to whether Ms Brown has a debt to the estate. The matters 4 See, for example, the observations of Asprey JA in Bates v Messner (1967) 67 SR (NSW) 187, 192. -- 7 of 9 -- 8 raised lack substance in the present setting because none of them suggest NCO’s interest as a beneficiary is in jeopardy. To remove doubt, none of them go to whether the executors can be trusted to pass on the gifted medals to NCO when he turns 18. Rather, they relate to the balance of the estate excluding the specific gifts, all of which has been bequeathed to the first respondent Ms Owen. It can scarcely be thought Ms Owen will fail to duly and properly administer that component of the estate of which she is the sole beneficiary. What is more, since the distribution of a substantial component of the estate, the protective nine-month timeframe for the bringing of a provision application on behalf of NCO having lapsed, the existing assets of the estate have dwindled to an amount in the vicinity of $37,000. That the remaining size of the undistributed estate is small is a consideration weighing against the Court’s intervention and imposition of the expense to the estate of the appointment of an independent administrator. (h) Depletion of estate funds during the active dispute. As already explained, the substantial distribution, which occurred back on 2 February this year, occurred after the lapse of the protective period invoked by the giving of notice of the intended application for provision. There is no ‘active dispute’ regarding provision, because no application for provision has been made. The timely distribution of estate assets is an inherent part of the executors’ obligation. It is illogical to argue that the executors cannot be trusted to perform their obligations merely because they continued to perform them when aware of the existence of an unserved application complaining they ought not be entrusted to perform their obligations. (i) Absence of preserved protection for [NCO’s] position As already explained, the executors’ obligation to preserve protection of the position of NCO as a prospective applicant for provision ended nine months after the deceased’s death on 4 January 2026. (j) Absence of demonstrated independent oversight by [Mr Owen] There is no evidence to support this allegation. The applicant’s reliance on the absence of a separate filed affidavit from Mr Owen in this context is misconceived. [27] The upshot is that, giving full weight to Ms Brown’s repeated argument that it is the cumulative effect of the above matters which supports the Court’s intervention, those matters are collectively incapable of supporting a legitimate basis for the Court to accede to the application to remove the executors. The application should be refused. Orders [28] In the normal course, costs should follow the event, with the consequence that the applicant Ms Brown should be ordered to pay the respondents’ costs of the application. They would usually be ordered to be assessed on the standard basis if not agreed. -- 8 of 9 -- 9 [29] The respondents’ outline asserted such costs should be ordered to be paid on the indemnity rather than standard basis, essentially because the applicant had no reasonable grounds to commence the application. It is not presently apparent to me that there has been such unreasonableness associated with Ms Brown’s application as to warrant an order that she ought bear the costs of it on an indemnity basis. However, I am content to provide the respondents with an opportunity to make written submissions in support of their contention if they wish to press it. [30] The respondents also filed an affidavit deposing to costs incurred to date and the anticipated additional costs up to the conclusion of the hearing. This was doubtless done in the hope I might fix costs, however, the amounts deposed to are not so minor as to allow me to infer their appropriateness without more information than the bare assertion of their quantum. I am additionally cautious to avoid requiring Ms Brown to pay any costs of the respondent associated with the era of avoidance of service on the basis the executors’ solicitors were not instructed to accept service. [31] In the circumstances I will afford the respondents and Ms Brown an opportunity to make further submissions as to costs in writing, to avoid the further cost of an appearance. In the event neither party makes further submissions I will order the applicant to pay the respondent’s costs to be assessed on the standard basis. [32] My orders are: 1. Application dismissed. 2. The respondents will file and serve any further submissions in writing (not exceeding four pages) and any further affidavit evidence which they seek to advance, as to the appropriate order for costs by no later than 4pm 27 May 2026. 3. The applicant will file and serve any further submissions in writing (not exceeding four pages) and any further affidavit evidence which she seeks to advance, as to the appropriate order for costs by no later than 4pm 3 June 2026. 4. The respondent will file and serve any written submission in reply as to costs (not exceeding two pages) and any affidavit evidence in response, by no later than 4pm 8 June 2026. -- 9 of 9 --