Banzhaf, In the Will of [2008] QSC 147

SUPREME COURT OF QUEENSLAND CITATION: In the Will of Banzhaf [2008] QSC 147 PARTIES: CHARLIE ANTHONY MARINO (Applicant) v In the Will of PATRICIA TERESA BANZHAF (Respondent) FILE NO/S: 105 of 2008 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court at Cairns DELIVERED ON: 12 May 2008 DELIVERED AT: Cairns HEARING DATE: 2 May 2008 JUDGE: Jones J ORDER: 1. Letters of Administration, with a copy of the will dated 27 August 1993 attached, be granted to Charles Anthony Marino subject to the formal requirement of the Registrar. 2. The costs of and incidental to this application be assessed on an indemnity basis and paid from the residuary estate. CATCHWORDS: SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – JURISDICTION AND DISCRETION OF THE COURT – Where executor renounces executorship – where beneficiary renounces gift – Section 6 Succession Act 1981 COUNSEL: Mr J Sheridan on behalf of the applicant SOLICITORS: Marino Moller Lawyers on behalf of the applicant [1] This is an application by certain beneficiaries of the Estate of Patricia Teresa Banzhaf for the appointment of Charles Anthony Marino as administrator of the Estate with the will attached. [2] The testator died on 23 September 1995 and by her last will appointed Ross Robert Harold Norman as executor and trustee, or alternatively, the firm of Bevan and Griffith, solicitors. Both Mr Norman and the principals of Bevan and Griffith have renounced the executorship. -- 1 of 3 -- 2 [3] The original will has been lost, misplaced or destroyed but a copy of the will is sought to be proven. The provenance of the will and the circumstances in which it was lost is explained in the affidavit of Ross Norman1 . [4] On 8 September 1995, shortly before her death, the testatrix purported to make a new will appointing her brother John Bernard Doyle as executor and leaving her property solely to her son Christian Christopher Karl Banzhaf. 2 That statement of testamentary intent was not witnessed in compliance with the statutory provisions and is therefore not a valid will nor a renunciation of the earlier will. [5] The sole beneficiary under the lost will is the testatrix’ sister, Margaret Mary Doyle. In the event of her predeceasing the testatrix the sole beneficiary was her brother John Doyle. As is seen that condition has not been fulfilled but Margaret Doyle has renounced both her entitlement to administer the estate and to take the beneficial interest under that will. Her view was that, despite the terms of the will, the testatrix at the time of death wished to benefit her son Christian and Ms Doyle supports effect being given to that wish. She consents to the appointment of Mr Marino as administrator. [6] The testatrix had only three children namely – Erika Sonja Banzhaf Sonja Banzhaf Christian Christopher Karl Banzhaf Each of the children has renounced any right to administer the estate and each consents to the appointment of Mr Marino as administrator. [7] Apart from her children and her sister Margaret Doyle, the testatrix was survived by her brothers John Doyle and Kevin Doyle and another sister Maureen and by her ex- husband, Harold Banzhaf. On 29 November 1996 in an attempt to finalise the Estate, all the parties (other than John Doyle) with a possible potential interest in the Estate entered into a Deed whereby it was agreed that Harald Banzhaf and Christian Banzhaf would jointly administer the estate with the intention that Christian receive the entire estate.3 Harald Banzhaf was to administer the estate. [8] Proceedings were commenced in the Townsville Registry (S959/1997) to give effect to the Deed but these stalled when Harald Banzhaf became concerned about a conflict of interest and there was a concern that John Doyle might claim an interest. These proceedings have been discontinued. [9] It was not until December 2005 that the testatrix’ brother John Doyle became aware that his sister Margaret renounced her interest in the Estate. This of course raised the question of whether he had any entitlement to claim under the will. He advised 1 Ex “CAM3” to the affidavit of Charles Marino sworn 4 March 2008 2 Ex “CAM14” to the affidavit of Charles Anthony Marino filed 7 March 2008 3 Ex “CAM15” -- 2 of 3 -- 3 that by email dated 21 January 2006 that he intended to pursue an interest in the estate and he retained solicitors K A Taylor to act on his behalf. 4 [10] As mentioned above John Doyle had signed a consent to allow Mr Marino to act as administrator of the Estate but by email dated 24 September 2007 he expressed a reservation about his having done so. In that email he expressed concern with what appeared to be the family’s proposal that Christian Banzhaf should receive the testatrix’ property and so I infer that he maintains an interest in having the Estate administered but on the basis that he reserves his right to pursue some interest under the will. [11] It is clear that the estate must be wound up. The appointment of an administrator will allow a consideration of all claims against the estate and will ensure there is a person against whom legal claims can be pursued. [12] The Court has a broad jurisdiction pursuant to s 6 of the Succession Act 1981 to hear and determine all matters relating to the estate and the administration of the estate of any deceased person and this includes the appointment of an administrator in circumstances raised here. [13] I am satisfied that Mr Marino is a suitable person to administer the estate and he enjoys the confidence of each of the persons with a potential interest in the estate’s administration. The winding up of the estate will, of course, necessitate the resolution of the issue which has been raised in recent correspondence by Mr John Doyle. There is nothing in the material before me which would indicate any reason why Mr Marino should be disqualified from undertaking the administration. [14] I therefore make the following orders:- 1. Letters of Administration, with a copy of the will dated 27 August 1993 attached, be granted to Charles Anthony Marino subject to the formal requirement of the Registrar. 2. The costs of and incidental to this application be assessed on an indemnity basis and paid from the residuary estate. 4 Ex “LAB11” to affidavit of Linda April Barlow sworn 4 March 2008 -- 3 of 3 --