When parties navigate the Queensland litigation process, they have a practical tool at their disposal. This tool is Rule 366 of the Uniform Civil Procedure Rules (UCPR). This tool is often overlooked. Rule 366 is found in Chapter 10 (Court supervision), Part 3 (Directions). It empowers the Court to manage proceedings. This rule also helps actively keep cases moving toward efficient resolution.
Rule 366 is fundamental. It defines how the Court can issue directions about the conduct of a proceeding. This can be done on its own initiative or at a party’s. These applications can be made at any time. They can be a standalone or part of a broader relief application. The rule also extends to matters in the Court of Appeal, underscoring its broad procedural reach.
The philosophy behind Rule 366 is consistent with the overarching purpose of the UCPR: avoiding unnecessary delay, cost, and technicality. Court-ordered directions are a key mechanism for ensuring proceedings stay on track.
Rule 366 operates alongside several complementary provisions. Rule 367 gives the Court broad discretion to make any orders or directions it considers appropriate. This applies even if they cut across other procedural rules. Such discretion is exercised in the interests of justice. Chapter 11, Part 8 provides rules including rule 447 on applications to the Court. It governs situations where correspondence replace affidavit evidence for applications made under this part.
Together, these rules form a critical procedural framework that supports judicial efficiency and practicality in Queensland’s civil justice system.
The case highlights the risks of poorly drafted wills. It also shows the dangers of unethical use of court processes. This reminds professionals to act transparently and ethically.
A Family, Two Wills, and a Very Complicated Property Arrangement
Guy Austin Gibbons is the applicant. He is a solicitor and the executor of the estate of the deceased. He has applied to the Court for directions on the distribution of the estate.
The deceased was married to Margaret Ann Herbert. He had two children from an earlier relationship—Tania (now Moore) and Iain Herbert. Margaret also had five children from a prior relationship: Gale, Paula, Wendy, Peter, and Christopher. Both sons predeceased her.
The deceased died on 13 September 2012. They left a Will dated 29 January 2007. This Will appointed the Senior Partner of Bennett Carroll Solicitors as executor. At the time of Keith’s death, the applicant held that position. The applicant then obtained probate on 6 December 2012.
At the time the deceased made the Will, he owned a property at Jimboomba. Nonetheless, the exact nature of his ownership is uncertain. Counsel advising the applicant assumed the deceased was the sole registered proprietor. There was no evidence of any legal or fair interest held by Margaret.
Under his Will, the deceased made provision for Margaret, his two children, and—albeit indirectly—Margaret’s children.
The key problem? Keith’s Will contained ambiguous and inconsistent clauses dealing with
“the property I may own and normally reside in at the time of my death”.
The Will includes significant drafting problems. Clause 4 assumes the deceased owns a property he is living in at his death. Trustees will hold this property on trust. They will allow Margaret to live there under clause 5.
Clause 6 then assumes the trustees can sell that property and buy another for Margaret to occupy under clause 5. Yet, the Will gives no obvious power to sell, except under clause 7. It is unclear how clause six operates. Under clauses 4 and 5, it is not realistic that the deceased sell the property against Margaret’s wishes. This is true while she still lived there. If Margaret chooses not to stay, it would trigger Clause 7. The sale proceeds would be paid to Tania and Iain. There would be no funds left for a replacement property.
Clause 6 also refers to the
“proceeds of sale of this property.”
It additionally mentions
“any substituted property purchased as a result of this subclause.”
Nonetheless, there is no “subclause”. Clause six itself confers no power to sell or buy replacement property. Moreover, clause 7 refers to selling “my share”, even though Keith owned his Jimboomba property outright. The Will assumed Keith later acquire property jointly with Margaret. Nevertheless, the drafting does not align with that scenario.
Structure of the Will
Clause 3 gives a small charitable gift. It then divides the residue: 50% is given jointly to Tania and Iain. The other 50% is designated to Margaret. There is a substitution for Margaret’s children if she predeceased Keith.
After selling the Jimboomba property, Keith did not buy another freehold home. Instead, he and Margaret acquired a licence to live in a retirement village unit, funded by a $335,000 “incoming contribution”.
Estate Assets and Joint Property
On Keith’s death, the executor (Mr Gibbons) identified a small inheritance from Keith’s father’s estate. There were also QSuper funds, which were later the topic of a deed with Margaret and the children. Additionally, there was the residential licence held between Keith and Margaret as tenants in common. Other jointly held assets (vehicle, shares, and a joint bank account) passed to Margaret by survivorship. The MLC superannuation also passed to Margaret under a binding nomination.
Margaret later made her own Will. She appointed a new executor. She left her estate equally to her three daughters and to Peter’s children. She expressly noted she had not provided for Tania and Iain. She expected them to get Keith’s half-share of the retirement village exit entitlement on her death.
By the time the deceased died, he no longer owned the family home. Instead, he and Margaret had purchased a retirement village licence in their joint names—a structure they had never contemplated.Exit Entitlement and Margaret’s Assumptions
Exit Entitlement and Margaret’s Assumptions
On Margaret’s death, the exit entitlement under the licence was repayable, with half belonging to Keith’s estate. Clause 5 of Margaret’s Will shows she believed Keith’s half would pass to Tania and Iain. This would occur under clause 7 of Keith’s Will. That understanding was mistaken. The deceased and Margaret jointly held the licence. It passed in part to residue. Margaret’s children ultimately get 75% of the estate. 50% through Margaret’s direct ownership plus half of the deceased’s 50% via residue under his Will and then Margaret’s Will.
The deceased thought his “property” included the residential licence, and Margaret acted consistently with that view. With her children now benefiting from the drafting mistake.
Effect on Tania and Iain
Tania and Iain’s only entitlement is through residue. Much of that has been diminished by legal costs. This leaves each with roughly $24,000. The applicant, nevertheless, must follow the deceased’s Will strictly as written.
The applicant sought counsel’s advice. They wanted to know if the deceased’s interest in the exit entitlement was “property [he] may own.” They questioned whether he would live in it normally at the time of his death. This was to understand the meaning of clause 4. Counsel concluded that the deceased’s share of the exit entitlement was part of the residue under clause 8. It was not the specific gift to Tania and Iain under clause 7. Tania and Iain ultimately accepted that conclusion.
In Queensland, moving into a retirement village doesn’t usually involve buying the unit itself. Instead, residents enter into arrangements including a licence to occupy or a long-term lease. These give them the right to live in a particular unit. At the same time, ownership remains with the village operator. These arrangements are regulated by the Retirement Villages Act 1999 (Qld). That key disclosure documents are given to residents well before any contract is signed. Prospective residents are encouraged to obtain independent advice.
How a licence to occupy works
- Right to live in the unit – The licence gives a resident the legal right to occupy a specific unit. Yet, it does not offer ownership of the property.
- Operator keeps ownership – The village operator continues to own both the unit and the land.
- Contract-based arrangement – a resident’s rights, responsibilities, fees, and village rules are all set out in a formal residence contract.
- Entry and ongoing fees – Most agreements involve an upfront entry payment. They also include recurring charges for services, maintenance, and village facilities.
- Exit entitlement – When a resident leaves, they are typically refunded of part of the entry fee. This refund depends on the contract terms and any exit fees.
After the deceased’s death, the applicant served as the estate’s executor. Years later, after Margaret’s death, a dispute emerged about the distribution of the deceased’s exit entitlement from the retirement village.
When someone dies, their named executor carries out the Will. The executor administers the estate according to the Succession Act 1981(Qld). Executors hold significant authority managing an estate, but equal obligations. Beneficiaries have a right to be informed about the estate’s administration. They should know about anything affecting the timing or value of their inheritance.
At the heart of an executor’s role is a fiduciary duty to the estate. Executors must prioritise the interests of the estate over their own. They have to manage estate assets responsibly. Executors must keep those assets separate from their personal property. An executor must act honestly and transparently with all parties involved. Executors don’t need to respond to every query from a beneficiary. But need to give meaningful updates including any development altering the beneficiary’s entitlement.
Courts are cautious about interfering with a deceased person’s choice of executor. As confirmed in Budulica v Budulica [2017] QSC 60, removing an executor generally requires evidence of serious mismanagement. Even then, the Court weighs factors. These include whether the executor has remedied earlier mistakes. Another factor is how far the administration has progressed. In short, the role carries both power and accountability. The law expects executors to meet that responsibility with diligence and integrity.
Importantly, notifying the beneficiaries is necessary if the estate becomes involved in litigation. Through a Family Provision Claim or a challenge to the Will’s validity; actions ultimately changing the distribution of the estate.
Ultimately, all parties accepted that Keith’s half-share fell into the residue under clause 8 of the Will. It wasn’t a specific gift to Tania and Iain under clause 7. In other words, the parties resolved the substantive dispute before the court proceedings commenced.
What the Executor Did Next
There was no live controversy about the Will’s construction. Despite this, the applicant insisted. Tania and Iain had to sign an extensive Deed of Release and Indemnity before the distribution of the estate. The deed would have:
- released the applicant from all potential liability,
- protected his law firm (which drafted both Keith’s and Margaret’s wills), and
- protected the executor of Margaret’s estate.
The beneficiaries refused. As a result, the applicant commenced action under Rule 366 of the Uniform Civil Procedure Rules 1999. This rule empowers the Court to give directions in a proceeding. Ordinarily, under s 96(1) of the Trusts Act 1973 an applicant files a written statement of facts. Nevertheless, the applicant did not do this.
The application sought the next orders:
- Distribution Order — that the executor distribute the estate’s only remaining asset. This asset is the exit entitlement payable under a 2008 Residence Contract with Bethany Christian Care. It should be distributed under clause 8 of the deceased’s Will.
- Indemnity Order — indemnifies the executor out of the estate for any liability he incurs in implementing that distribution.
- Costs Order — Tania (Tania Nicole Herbert/Moore) and Iain Andrew Herbert must personally pay the costs of the application. This payment should be on an indemnity basis. This is not because he needed directions about distribution (he didn’t). It is because he wanted the Court to compel or justify the obtaining of indemnities.
Nonetheless, neither Tania nor Iain objected on procedural grounds. The Court plainly has jurisdiction to issue directions to the applicant.
The Court’s View: “This Was Misconceived and Unreasonable”
Davis J was blunt: there was no active dispute requiring judicial determination when the executor made the application. The applicant had attempted to gain a collateral advantage. They used a directions application to pressure the beneficiaries into signing an all-encompassing indemnity. This was not a proper step in administering the estate.
The applicant’s conduct was “unreasonable” and justified costs on an indemnity basis against him. His Honour dismissed the application and ordered the applicant:
- is to pay Tania and Iain’s costs on an indemnity basis.
- is not to be indemnified from the estate for his own legal costs. He must pay for the expenses to the beneficiaries.
In effect, the applicant was made personally financially responsible—an outcome courts reserve for serious missteps.
Why This Case Matters
- Ambiguous wills cause real-world problems
Keith’s solicitor Will drafting was particularly unclear around the property clause. Years later, this fueled confusion, conflict, and cost.
Lesson: Precise drafting of property dispositions is crucial. This includes life interests, substitution clauses, and jointly owned property. It builds trust and confidence in estate planning. Additionally, it reduces future conflicts.
- Retirement village licences are not “property” in the usual sense. The deceased wanted his children to inherit his home. This intention included any replacement. But a joint licence can defeat testamentary intentions.
Lesson: Retirement village contracts need explicit treatment in estate planning. - Executors can not use court processes to force beneficiaries’ hands.
Executors only seek judicial directions when genuinely uncertain. They can not use it as leverage for sweeping indemnities.
Lesson: The Court expects trustees and executors to act reasonably. They should also act neutrally. This fosters confidence that estate management is fair. They should seek directions only when genuinely necessary.
- Solicitors acting as executors face heightened scrutiny
Here, the same firm had drafted both wills and administered both estates. The Court was sensitive to the appearance of conflict and the effort to obtain broad releases.
Lesson: Professional executors must be transparent and neutral. They should reassure clients and colleagues that their actions are ethical. It is important to stay unbiased and avoid self-protective manoeuvres.
Final Thoughts
This case is a stark reminder. Even apparently simple wills can unravel when intentions are unclear. This happens especially if property is held in structures the Will never anticipated. It also highlights that executor powers are fiduciary, not tactical. A fiduciary can’t use court processes to shield executors or law firms from potential claims.
For lawyers and executors alike, the message is clear:
Draft clearly.
Administer transparently.
Use the courts only when necessary.