In the Estate of Lenin Carl Daft

[2025] QSC 2

SUPREME COURT OF QUEENSLAND

CITATION:

In the Estate of Lenin Carl Daft [2025] QSC 2

PARTIES:

In the Estate of Lenin Carl Daft

JAYNE LOUISE HERRING

(applicant)

FILE NO/S:

BS 4180 of 2024

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Orders made on 6 January 2025

Judgment delivered on 6 January 2025

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Hindman J

ORDER:

1. Pursuant to rule 489(1) of the Uniform Civil Procedure Rules 1999 (Qld) this application is to proceed without oral hearing.

2.   Subject to the formal requirements of the Registrar, a Grant of Probate of a copy of the will of Lenin Carl Daft dated 12 December 2016, as contained in exhibit B to the affidavit of Jayne Louise Herring affirmed on 27 March 2024 and filed on 4 April 2024, be granted to Jayne Louise Herring as executor limited until the original will or more authenticated evidence thereof be brought into and left at the Registry of this Court.

CATCHWORDS:

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – LIMITED, SPECIAL AND CONDITIONAL GRANTS OF PROBATE AND ADMINISTRATION – PROBATE OF LOST WILL – where an original Will cannot be found – where there is a copy of the original Will – whether the copy can allow for admission to probate

SOLICITORS:

Swift Solicitors for the applicant

1. This is an application by Jayne Louise Herring that a copy of the Will of Lenin Carl Daft (deceased) dated 12 December 2016 be admitted to probate. The copy of that Will is exhibit B to the affidavit of Jayne Louise Herring affirmed on 27 March 2024 and filed on 4 April 2024.  The applicant is the daughter of the deceased and the named executor in the Will. 

2. This is the third occasion on which this file has been considered by this Court.  On the two previous occasions the application has been adjourned to a date to be fixed to permit the applicant to fix problems with the material filed in support of the application.  Those problems have now been addressed.   

3. I am satisfied that it is not inappropriate to deal with this application on the papers in circumstances where:

   (a)the application for probate was advertised;

   (b)the persons who might be interested in the grant of probate appear limited;

   (c)there is no evidence that suggests that the estate is complex;

   (d)there is evidence of the steps taken to find the Will;

   (e)the application does not raise any novel questions of law.

4. There are five matters that must be established for the admission to probate of a copy of the Will:

   (a)that the original Will existed;

   (b)that the original Will was duly executed;

   (c)the terms of the original Will and that it revoked all previous Wills;

   (d)that proper searches have been made for the original Will; and

   (e)that any presumption of revocation of the original Will is rebutted.[1]

   [1]See Frizzo v Frizzo [2011] QSC 107 at [161] where Applegarth J followed the New South Wales decision of Cahill v Rhodes [2002] NSWSC 561 at [55].

5. In this case the existence of the Will [requirement (a)] and the terms of the Will and that it revoked all previous wills [requirement (c)] are proved by the copy of the Will that was held electronically by the lawyers who prepared the Will for the deceased.

6. The due execution of the Will [requirement (b)] can be presumed because the copy of the Will has an attestation clause and appears to have been duly executed in circumstances where one would expect the formalities to be observed.[2]  In that respect, the Will has the deceased’s signature and that of two witnesses.  The two witnesses are a law student and a solicitor of the firm of lawyers who prepared the Will for the deceased.  The Will appears to have been executed at the premises of the firm of lawyers.  There is no affidavit from either of the witnesses to the Will affirming the signing of the Will, but that can be excused in the circumstances just mentioned.

   [2]See Kay v Fisher [2009] WASC 193 at [45].

7. The Will cannot be found despite searches [requirement (d)].  A copy of the Will has aways been in the possession of the lawyers for the deceased.  The lawyers’ usual practice is not to retain original wills but to provide the original plus a copy to the testator in a white envelope marked “Will”.  A search of their safe custody facilities has confirmed that they do not hold the original document. 

8. A search of the deceased’s effects has not uncovered the Will.  He did change residences after the Will was executed.  The applicant recalls seeing in the testator’s possession the relevant white envelope at both residences.  Inquiries of the deceased’s bank have not uncovered the Will.

9. It is known that the deceased consulted with his lawyers again in about February 2019 in relation to making amendments to an Enduring Power of Attorney and no issue about the Will appears to have been raised then.  The deceased is not known to have consulted with any other lawyers.     

10. The applicant is in possession of a copy of the Enduring Power of Attorney, but having searched her own records has not uncovered the Will. 

11. The Will has not been able to be located.  It is likely it has been accidentally lost.  There is evidence of a cognitive decline in the deceased prior to his death that resulted in him “tucking things away” and disposing of documents, which may have led to the loss of the Will.  Proper enquiries to locate the Will have been made.    

12. If a Will is last traced to the possession of the testator, and that Will cannot be found, a presumption arises that it was destroyed by the testator with intention of revoking it [requirement (e)].[3]  In this case I consider that presumption rebutted in circumstances where the deceased would have been expected to consult with his lawyers in February 2019 had he wished to make a new will, and there is evidence that the Will represented the deceased’s testamentary wishes as he had expressed them.  The intention to prefer the daughter over the two sons (whilst also providing for them) was expressed to the solicitors preparing the Will, it was mentioned in the Will itself and is consistent with the daughter having provided a high level of support to the deceased during his lifetime. 

    [3]Re Warren (deceased) [2014] QSC 101 at [11].

13. An order will be made in the terms identified on the first page.  No order as to costs was sought or is made.