In the Will of - [2024] QSC 40

SUPREME COURT OF QUEENSLAND

CITATION:

In the Will of Raymond Bower [2024] QSC 40

PARTIES:

STEPHEN BOWER

(applicant)

FILE NO/S:

BS 2132 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application on the papers

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

1 March 2024

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Bradley J

ORDER:

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

2. Subject to the formal requirements of the Registrar, the photocopy of the will of Raymond Bower, formerly of 13/26 Church Street, Wollongong in the State of New South Wales but late of Kartaram Estate, Votualevu, Nadi in the Republic of Fiji, dated 25 August 1992, a copy of which document is exhibit “SB-1” to the affidavit of Stephen Bower supporting the probate application duly affirmed and filed herein, be admitted to probate until the original will or more authenticated evidence be brought into and left in the Registry.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – WHEN LOST, MISLAID, DESTROYED OR NOT AVAILABLE – GENERALLY – where the testator duly executed a will and a photocopy of the will was retained by the applicant – where the testator wrote on the back of the photocopy that the original will is stored in a Fijian bank – where the bank has advised that they do not hold any documents for the testator – whether the photocopy of the will should be admitted to probate

SUCCESSION – MAKING OF A WILL – REVOCATION – METHODS OF REVOCATION – DESTRUCTION OR MUTILATION, OR STRIKING OUT PORTIONS – PRESUMPTION THAT WILL MISSING FROM TESTATOR'S CUSTODY INTENDED TO BE REVOKED BY DESTRUCTION – where the testator duly executed a will and a photocopy of the will was retained by the applicant – where the testator wrote on the back of the photocopy that the original will is stored in a Fijian bank – where the bank has advised that they do not hold any documents for the testator – whether the presumption of revocation in the case of a lost will applies

Uniform Civil Procedure Rules 1999 (Qld), r 489

Cahill v Rhodes [2002] NSWSC 561, cited

The Will of Leonie Lyle Warren deceased [2014] QSC 101, cited

SOLICITORS:

Qld Law Group for the applicant

The applicant, Stephen Bower, seeks an order that the document comprising three pages, being a copy of the Will of Raymond Bower (the deceased), be admitted to probate. The applicant seeks that this application be decided without an oral hearing. For the reasons set out below, I am satisfied that the application should proceed without an oral hearing, pursuant to r 489(1) of the Uniform Civil Procedure Rules1999 (Qld).
The deceased executed a Will (the Will) on 25 August 1992 in the presence of two witnesses. The Will was prepared by the firm Higgins Dyson & Webley of Wollongong. The Will revokes all former…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] QSC 40
Decision Date: 1 March 2024

CaseChat Overview and Summary

The matter before the court involved the application for the admission of a photocopy of a will to probate. The applicant, Stephen Bower, sought to have the photocopy of his father Raymond Bower's will admitted to probate, as the original could not be located. The will in question was dated 25 August 1992, and the applicant retained a photocopy of the document. The testator had indicated that the original will was stored in a Fijian bank, but the bank confirmed that it did not hold any documents for the testator. The court was tasked with determining whether the photocopy could be admitted to probate and whether the presumption of revocation applied due to the missing original will.

The court needed to address two primary legal issues: whether the photocopy of the will could be admitted to probate despite the absence of the original document, and whether the presumption of revocation applied due to the missing will. The court considered the principles surrounding the admissibility of photocopies of wills and the presumption of revocation when a will is lost or destroyed. The applicant argued that the photocopy should be admitted to probate, given the circumstances, while the court had to consider the established legal precedents regarding wills that are not available for probate.

The court concluded that the photocopy of the will could be admitted to probate, subject to the formal requirements of the Registrar. The court found that the circumstances justified the admission of the photocopy, as the original could not be located, and the applicant had acted in good faith by retaining the photocopy. The court also held that the presumption of revocation did not apply in this case, as there was no evidence to suggest that the testator intended to revoke the will by failing to produce the original. The court's decision was based on the balance of probabilities and the overall circumstances of the case.

The court ordered that the application proceed without an oral hearing and that the photocopy of the will be admitted to probate, subject to the formal requirements of the Registrar. This decision allowed the estate to be administered according to the terms of the will as evidenced by the photocopy, pending the production of the original will or more authenticated evidence.

Orders

Orders of the court

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

2. Subject to the formal requirements of the Registrar, the photocopy of the will of Raymond Bower, formerly of 13/26 Church Street, Wollongong in the State of New South Wales but late of Kartaram Estate, Votualevu, Nadi in the Republic of Fiji, dated 25 August 1992, a copy of which document is exhibit “SB-1” to the affidavit of Stephen Bower supporting the probate application duly affirmed and filed herein, be admitted to probate until the original will or more authenticated evidence be brought into and left in the Registry.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	In the Will of Raymond Bower [2024] QSC 40
PARTIES:	STEPHEN BOWER (applicant)
FILE NO/S:	BS 2132 of 2024
DIVISION:	Trial Division
PROCEEDING:	Application on the papers
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	1 March 2024
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Bradley J
ORDER:	1. Pursuant to rule 489(1) of the *Uniform Civil Procedure Rules 1999* (Qld), this application proceed without an oral hearing. 2. Subject to the formal requirements of the Registrar, the photocopy of the will of Raymond Bower, formerly of 13/26 Church Street, Wollongong in the State of New South Wales but late of Kartaram Estate, Votualevu, Nadi in the Republic of Fiji, dated 25 August 1992, a copy of which document is exhibit “SB-1” to the affidavit of Stephen Bower supporting the probate application duly affirmed and filed herein, be admitted to probate until the original will or more authenticated evidence be brought into and left in the Registry.
CATCHWORDS:	SUCCESSION – MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – WHEN LOST, MISLAID, DESTROYED OR NOT AVAILABLE – GENERALLY – where the testator duly executed a will and a photocopy of the will was retained by the applicant – where the testator wrote on the back of the photocopy that the original will is stored in a Fijian bank – where the bank has advised that they do not hold any documents for the testator – whether the photocopy of the will should be admitted to probate SUCCESSION – MAKING OF A WILL – REVOCATION – METHODS OF REVOCATION – DESTRUCTION OR MUTILATION, OR STRIKING OUT PORTIONS – PRESUMPTION THAT WILL MISSING FROM TESTATOR'S CUSTODY INTENDED TO BE REVOKED BY DESTRUCTION – where the testator duly executed a will and a photocopy of the will was retained by the applicant – where the testator wrote on the back of the photocopy that the original will is stored in a Fijian bank – where the bank has advised that they do not hold any documents for the testator – whether the presumption of revocation in the case of a lost will applies *Uniform Civil Procedure Rules 1999* (Qld), r 489 *Cahill v Rhodes* [2002] NSWSC 561, cited *The Will of Leonie Lyle Warren deceased* [2014] QSC 101, cited
SOLICITORS:	Qld Law Group for the applicant