I've got the Power! (Or do I?) Part 2
Updated: Oct 22, 2020
In the last post, I outlined the jurisdictional issue raised in Uhlmann & Anor v Harris (No 2)  QSC 28 in circumstances where a State Court is asked to determine a dispute between residents of different States. The issue only arises when the dispute is centred around a matter that is not within the original jurisdiction of that State Court by virtue of, for example, locality or subject-matter.
In this post, I explore the potential issues faced by an applicant for provision from the estate of a deceased. I use the example of an application under Chapter 3 of the Succession Act 2006 (NSW) in relation to property held by the deceased in New South Wales, with the executor (and the majority of the deceased's assets) being located in Queensland.
In this scenario, the deceased's only asset in New South Wales is a house in Fingal Head. The applicant, Gary, is a son of the deceased and lives in the Fingal Head property, having done so for a number of years prior to the death of his father. Gary is in his mid-30's, a keen surfer, and has been attempting to make it in the pro-surfing world but with little success. He was a late addition to the family, and the result of the deceased's second marriage to a much younger bride. Unfortunately, Gary's mother died in childbirth and his father (the deceased) indulged Gary during his lifetime in an attempt to make up for him growing up without a mother.
Gary commenced his application for provision in the Supreme Court of New South Wales. In accordance with the Supreme Court Practice Note SC Eq 7, his matter was referred to court annexed mediation. His application was not resolved at that mediation.
The deceased, Bill, also had 4 other children from his first marriage. They are aged in their late 60's to mid 70's. None of these children were indulged in the way that Gary has been. They have had to make their own way in life and 2 of them have done little more than survive.
So, Bill left behind 5 children, with only 2 of whom having something in the way of assets. However, Bill had managed to amass substantial assets in his lifetime and his estate consisted of the Fingal Head house and 3 other properties in Queensland, together with some money in various bank accounts.
In his last Will, Bill appointed Harry, his eldest child, as the executor of his estate. Harry lives in Gympie in Queensland, a couple of streets away from where Bill lived until his death.
Besides Gary, 2 of Bill’s other children have also brought applications for provision. Gladys and Dudley commenced their applications in the Supreme Court of Queensland under the Succession Act 1981 (Qld).
Following the unsuccessful court annexed mediation of Gary's application, the Supreme Court of New South Wales, upon Gary's request, transferred his matter to the Supreme Court of Queensland to be heard with Gladys and Dudley's applications.
The applications brought by Gladys and Dudley have gone through the process required by the Consent Directions Order, including an unsuccessful mediation.
The result is that all 3 matters, that is, Gary, Gladys and Dudley's applications for provision, are ready to be heard by the Supreme Court of Queensland.
Gladys and Dudley are not seeking any particular property - they are simply seeking a greater share of Bill’s estate than provided for in his Will. Gary, however, is seeking an order that Bill’s last Will be read and construed as if the Fingal Head property was given to him. Gary believes that he must continue to live in the Fingal Head property because that will give him the greatest chance of turning professional with his surfing.
It is the order Gary seeks that will cause problems for him at the hearing.
The Supreme Court of Queensland has the jurisdiction to hear the 3 claims for provision insofar as they affect Bill’s assets within its original jurisdiction, that is, the assets in Queensland. The Fingal Head property is not within its original jurisdiction. The Queensland Court can take that property into account in its deliberations but it cannot make a specific order affecting that property.
If Gary had not sought to have his proceeding transferred to Queensland, the Supreme Court of New South Wales could, if it was so minded, make the order that Gary sought. That is because it has jurisdiction as a result of the locality of the property, and the operation of sections 38 and 39 of the Judiciary Act 1903 (Cth). But it is clear from the Uhlmann decision that the Supreme Court of Queensland does not have that jurisdiction.
If Gary lived in Queensland or if Gary sought an order that did not involve the Fingal Head property specifically, the jurisdictional issue would not arise. The Court would consider the 3 claims on the same basis – making orders in relation to the assets in Queensland and taking the existence of the Fingal Head property (and how it would be dealt with under Bill’s Will) into account in its deliberations.
Gary’s dreams of staying in the Fingal Head house in order to continue to pursue his dreams of joining the ranks of pro-surfers cannot be fulfilled by the Supreme Court of Queensland. (The issue of whether Gary might be able to fulfil that dream as a result of convincing Harry to use his power to appropriate the Fingal Heads property for him may be for another blog post!)
This scenario is why the jurisdictional issue in the Uhlmann
decision is so interesting to me. It may not happen very often but when it does happen, the Succession lawyer should be alive to the issue so that they can
provide appropriate advice to their client,
consider how to best structure the client’s claim for provision, and
most importantly, consider the appropriate jurisdiction to hear the claim.