Keywords: Supreme Court of Queensland; Davis J; wills and estates; probate in common form; probate in solemn form; UCPR r 640; UCPR r 69; administrator; testamentary capacity; knowledge and approval; discretionary testamentary trusts; revocation of grant; Mount Nathan property; Succession Act 1981 (Qld); Trusts Act 1973 (Qld)
By Honest Grace Legal | Aug 2025
Subject
Interim administrator appointed pending challenge to 2023 will
What Happened
- Three siblings - Terrence, Holly and Todd (junior) - are the children of Jacalyn Jay Sullivan and Todd Paul Sullivan (senior).
- In 2019, each parent made a simple will leaving their estate to the other, then to the three children equally if the maker survived.
- Todd (senior) died on 27 September 2023. On 25 December 2023, Jacalyn executed a new, more complex will that created three discretionary testamentary trusts (one for each child). Holly and Kevin Murphy were named executors; Mr Murphy later renounced.
- Jacalyn died on 11 February 2024. Probate in common form of her 2023 will was granted to Holly on 12 July 2024.
- Terrence (a beneficiary under both regimes) contested validity of the latest will and sought protective orders. The main estate asset is a house at Mount Nathan that needs to be sold.
Key Legal Issues
- Whether the common form grant should be brought into the registry and the will proved in solemn form under r 640 UCPR. If so, what threshold applies to that discretion.
- Whether there is a real question about Jacalyn’s testamentary capacity on 25 December 2023.
- Whether there is a real question about knowledge and approval, given the radical shift from the 2019 wills, the discretionary trust structure, and the circumstances of preparation and execution.
- Whether to revoke the existing grant and/or remove Holly as executor, and whether to appoint an independent administrator to safeguard the estate pending determination.
What the Court Decided
Orders (in substance):
- Correct the first respondent’s description under r 69 UCPR.
- Require the executor to bring the original grant into the Brisbane Registry by 4 pm on Monday, 24 February 2025, and note the order on Probate File BS 7419/24.
- Appoint Prudence Poole (solicitor) as administrator of both Jacalyn’s and Todd (senior)’s estates with authority to: bring in and secure assets; prepare the Mount Nathan property for sale; sell that property; sell all other estate assets except Jacalyn’s jewellery; pay debts; and prepare estate accounts.
- Confer on the administrator all powers of a personal representative under the Succession Act 1981 (Qld) and Trusts Act 1973 (Qld) and at common law but prohibit any distribution without all parties’ consent or further order.
- Vest all estate assets (including real property) in the administrator; require the parties to deliver documents/information and estate funds to the administrator within 14 days.
- Fix the administrator’s remuneration and her solicitors’ costs to be assessed by an independent costs assessor on the Supreme Court scale at approximately three-monthly intervals and on completion; fees payable to the firm, not to the administrator personally.
- Administrator to have liberty to apply for directions in relation to administration of the estate.
- Costs: Terrence’s costs to date to be paid out of the estate on the indemnity basis in the first instance, with ultimate liability reserved.
Not ordered at this stage: Revocation of the grant; a direction compelling Holly to commence solemn form proceedings.
Key Findings
- Threshold under r 640: The Court adopted a “triable issue” approach - i.e., where there is a real question as to validity, it will generally be appropriate to bring a common form grant into the registry and move toward proof in solemn form.
- Capacity concerns: The timing (stroke on Christmas Eve, surgery, execution on Christmas Day shortly after family observations of confusion and slurred speech) raised a serious question about capacity at the time of execution.
- Knowledge and approval concerns: The 2023 will radically departed from the 2019 regime by vesting residue in three discretionary trusts and placing practical control with Holly. There was no evidence that a solicitor attended at execution to explain the terms or test capacity; post instruction communications to the drafter ran through Holly, including changes that increased her control.
- Trust effect in practice: Under the 2023 structure, Terrence and Todd (junior) have no vested entitlement unless and until discretion is exercised in their favour, and the trustee’s powers are deliberately broad.
Outcome
The Court preserved the status quo whist protecting the estate: it required the existing grant to be brought in and installed an independent administrator to realise assets and keep accounts. It did not revoke the grant at this stage, emphasising that removal of a chosen executor should be approached cautiously and may depend on evidence that emerges in any solemn form proceedings. It also declined to compel Holly to commence such proceedings, leaving the parties to propound the 2023 or 2019 will as they see fit.
Why This Case Matters
- Practical test for r 640: Showing a triable issue of invalidity (capacity and/or knowledge and approval) will usually justify bringing a common form grant.
- Heightened scrutiny for complex wills: When an elderly or unwell testator executes a complex discretionary trust will without a solicitor present, the lack of evidence that the will was explained and understood can be pivotal.
- Discretionary trusts vs absolute gifts: Moving from equal absolute shares to trusts controlled by one sibling is a major change that will attract close examination.
- Estate protection: Courts are willing to appoint an administrator to sell real property, control spending, and prevent distributions while a will’s validity is contested.
Source
https://archive.sclqld.org.au/qjudgment/2025/QSC25-020.pdf