In the Will of

[2025] QSC 98

SUPREME COURT OF QUEENSLAND

CITATION:

In the Will of Kenneth Thomas Strutt [2025] QSC 98

PARTIES:

In the Will of Kenneth Thomas Strutt  

Gail Patricia Cater
AND
Karen Lee Krueger
AND
Shelley Lynne Cooke

(applicants)

FILE NO/S:

BS SE01389/25

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Orders made on 9 May 2025

Judgment delivered on 9 May 2025

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Freeburn J

ORDER:

1.   Subject to the formal requirements of the Registrar, probate of the Will of Kenneth Thomas Strutt (dec’d) dated 7 October 2025, as contained in the copy of that Will which is exhibit DBS1 to the affidavit of Dean Bradley Stibbe filed on 4 February 2024, be granted to the applicants, until the original of that Will or more authentic evidence of that Will be proved.

2.   Costs reserved.

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 photocopy of the original Will – whether the copy can allow for admission to probate

SOLICITORS:

Files Stibbe Lawyers for the applicant

1. This is an application by Gail Patricia Cater, Karen Lee Krueger and Shelley Lynne Cooke that a copy of the Will of Kenneth Thomas Strutt (deceased) dated 7 October 2023 be admitted to probate. The copy of that Will is exhibit DBS1 to the affidavit of Dean Bradley Stibbe.

2. 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].

3. In this case the existence of the Will and the terms of the Will and that it revoked all previous Wills are proved by the photocopy of the Will.

4. The due execution of the Will 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]  The Will has the deceased signature and that of the two witnesses.  It was a Will made by a trustee company.

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

5. The Will cannot be found despite searches.  It was not amongst the deceased’s papers and one would expect the original to be in the packet kept by a third party – but only copies were there.

6. 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.[3]  However, that presumption does not arise here because the Will was always (until it went missing) in the possession of the Perpetual.

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

7. An order will be made in terms of the draft.