In the Will of - [2024] QSC 8

SUPREME COURT OF QUEENSLAND

CITATION:

In the Will of Ardina Wilhelmina Theresia van Doore [2024] QSC 8

PARTIES:

IN THE WILL OF ARDINA WILHELMINA THERESIA VAN DOORE

Adrianus Theodorus van Doore

AND

Maree Ann Morris as Executors of the Will of Ardina Wilhelmina Theresia van Doore

(applicants)

FILE NO:

BS 16124 of 2023

DIVISION:

Trial Division

PROCEEDING:

Application on the papers

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 January 2024

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Sullivan J

ORDER:

A grant of probate of the will of Ardina Wilhelmina Theresia van Doore, as contained in a copy dated 25 March 2015, be issued to ADRIANUS THEODORUS VAN DOORE and MAREE ANN MORRIS, as executors, subject to the formal requirements of the Registrar, limited until the original will or more authenticated evidence be brought into and left in the Registry.

SOLICITORS:

Comino & Associates

I have before me an application on the papers for a grant of probate of a copy of the will of Ardina Wilhelmina Theresia van Doore (“the deceased”) dated 25 March 2015. I have been asked to consider this application on the papers.
Facts
The deceased died on 2 July 2023, leaving an estate in Queensland.
The deceased made her last will on 25 March 2015.
The applicants in this case are the children of the deceased and are named in that will as two of the three proposed executors. The third proposed executor was their father, Mr Franciscus Theodorus van Doore, who had passed away prior to the deceased.
The original will had been held by Robert Gunningham, solicitor. On or about 25 March 2015, Mr Gunningham released the original will to the deceased and her husband.
Mr van Doore, one of the applicants, deposes to the fact that he has been unable to locate the original will, despite making every attempt to do so. Mr van Doore exhibits the 25 March 2015 letter from Mr Gunningham, recording the delivery of the original will to the deceased and her husband. Mr van Doore exhibits a copy of the will which had been certified by a Commissioner for Declarations on 20 August 2015.
Mr van Doore deposes to the deceased having always been meticulous with her documentation and record-keeping. He located the certified copy of the will at the deceased’s unit at St Paul de Chartres Retirement Village after her death. That certified copy was located in the deceased’s files.
Mr van Doore also deposes, to his understanding, that the deceased and his father had a safe custody deposit at the Bank of Queensland at Sunnybank Hills, and that when his father had passed away, this is where the deceased had retrieved his father’s original will.
Mr van Doore deposes to the deceased having informed him (and others) that her original will was held in security at the bank. Mr van Doore deposes that the reference to “the bank” was understood by him to be the Sunnybank Hills branch of the…

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 8
Decision Date: 12 January 2024

CaseChat Overview and Summary

The case involves an application for the grant of probate for a copy of the will of Ardina Wilhelmina Theresia van Doore, who passed away on 2 July 2023. The applicants, her children, seek the probate of the copy of the will dated 25 March 2015. The deceased had appointed her children as two of the three executors of her will, with the third being their father, who predeceased her. The original will had been held by a solicitor but was lost before the deceased's death. The applicants have provided a certified copy of the will, which they located in the deceased's files after her death. The court is asked to decide whether this certified copy should be admitted to probate.

The court was required to determine whether the copy of the will was sufficiently authenticated and whether it met the legal requirements for probate. The applicants had to demonstrate that the will was properly executed and that the copy provided was an accurate reflection of the original. The court had to consider whether the circumstances of the case justified the granting of probate for the copy of the will in the absence of the original.

The court found that the certified copy of the will was executed in accordance with the requirements of the Succession Act 1981 (Qld). The will was signed by the deceased in the presence of two witnesses and included an appropriate attestation clause. The court was satisfied that the deceased had always been meticulous with her documentation and record-keeping, and there was no evidence to suggest that she intended to destroy the will. The court also noted that the deceased had informed her son that her will was held in security at a bank, which had records of a security packet for her but was unable to locate it. Based on these findings, the court concluded that it was appropriate to grant probate of the copy of the will.

The court made an order granting probate of the will of Ardina Wilhelmina Theresia van Doore, as contained in a copy dated 25 March 2015, to the applicants ADRIANUS THEODORUS VAN DOORE and MAREE ANN MORRIS, as executors, subject to the formal requirements of the Registrar. The grant of probate is limited until the original will or more authenticated evidence of it is brought into and left in the Registry.

Orders

Orders of the court

A grant of probate of the will of Ardina Wilhelmina Theresia van Doore, as contained in a copy dated 25 March 2015, be issued to ADRIANUS THEODORUS VAN DOORE and MAREE ANN MORRIS, as executors, subject to the formal requirements of the Registrar, limited until the original will or more authenticated evidence be brought into and left in the Registry.

Background

Background to the litigation

I have before me an application on the papers for a grant of probate of a copy of the will of Ardina Wilhelmina Theresia van Doore (“the deceased”) dated 25 March 2015. I have been asked to consider this application on the papers.Facts The deceased died on 2 July 2023, leaving an estate in Queensland. The deceased made her last will on 25 March 2015. The applicants in this case are the children of the deceased and are named in that will as two of the three proposed executors. The third proposed executor was their father, Mr Franciscus Theodorus van Doore, who had passed away prior to the deceased. The original will had been held by Robert Gunningham, solicitor. On or about 25 March 2015, Mr Gunningham released the original will to the deceased and her husband. Mr van Doore, one of the applicants, deposes to the fact that he has been unable to locate the original will, despite making every attempt to do so. Mr van Doore exhibits the 25 March 2015 letter from Mr Gunningham, recording the delivery of the original will to the deceased and her husband. Mr van Doore exhibits a copy of the will which had been certified by a Commissioner for Declarations on 20 August 2015. Mr van Doore deposes to the deceased having always been meticulous with her documentation and record-keeping. He located the certified copy of the will at the deceased’s unit at St Paul de Chartres Retirement Village after her death. That certified copy was located in the deceased’s files. Mr van Doore also deposes, to his understanding, that the deceased and his father had a safe custody deposit at the Bank of Queensland at Sunnybank Hills, and that when his father had passed away, this is where the deceased had retrieved his father’s original will. Mr van Doore deposes to the deceased having informed him (and others) that her original will was held in security at the bank. Mr van Doore deposes that the reference to “the bank” was understood by him to be the Sunnybank Hills branch of the Bank of Queensland, located at the Sunnybank Hills Shoppingtown. He deposes to having personal knowledge that this was the only bank which the deceased dealt with. Mr van Doore also deposes to the fact that a few days before the deceased’s death, when she had been taken to Greenslopes Hospital, the deceased requested Mr van Doore and his siblings to attend the hospital. In discussions with Mr van Doore at the hospital, the deceased then reminded him that the will and important documents were held at “the bank”. Mr van Doore deposes to the fact that at no time did the deceased ever indicate to him, or to the best of his knowledge any other member of the family, an intention to destroy the will. After the deceased’s death, Mr van Doore deposes to having discussions with an identified Bank of Queensland officer, who held the position of ‘Customer Service Manager’ for the Bank of Queensland at Sunnybank Hills. In those conversations, he pressed the bank officer on several occasions about the documents which, he understood from the deceased, had been stored by her at the bank in security. The officer told him that the bank had sent all security documents to its head office in Brisbane, and had conducted a thorough investigation and were unable to locate any documents held on behalf of the deceased. Mr van Doore was further informed by that officer that the Bank of Queensland did have records of a security packet for the deceased, but they had been unable to locate it. The bank officer suggested that his mother had probably collected the envelope.

Evidence

Evidence Before The Court

The photocopy of the certified copy of the will provides evidence of the terms of the will. There must be evidence of the will’s execution The photocopy of the certified copy of the will evidences that it was executed in accordance with the requirements of s 10 of the Succession Act 1981 (Qld), in that it was signed by the deceased in the presence of two witnesses with an appropriate attestation clause to that effect.Conclusion Having been satisfied of the matters set out above, it is appropriate that I make orders to admit the copy to probate on the usual basis, that is, until the original will or more authenticated evidence of it be brought and left in the Registry.Orders1.A grant of probate of the will of Ardina Wilhelmina Theresia van Doore, as contained in a copy, dated 25 March 2015, be issued to ADRIANUS THEODORUS VAN DOORE and MAREE ANN MORRIS, as executors, subject to the formal requirements of the Registrar, limited until the original will or more authenticated evidence be brought into and left in the Registry.

Decision

Reasons for decision

The photocopy of the certified copy of the will evidences that it was executed in accordance with the requirements of s 10 of the Succession Act 1981 (Qld), in that it was signed by the deceased in the presence of two witnesses with an appropriate attestation clause to that effect.Conclusion Having been satisfied of the matters set out above, it is appropriate that I make orders to admit the copy to probate on the usual basis, that is, until the original will or more authenticated evidence of it be brought and left in the Registry.Orders1.A grant of probate of the will of Ardina Wilhelmina Theresia van Doore, as contained in a copy, dated 25 March 2015, be issued to ADRIANUS THEODORUS VAN DOORE and MAREE ANN MORRIS, as executors, subject to the formal requirements of the Registrar, limited until the original will or more authenticated evidence be brought into and left in the Registry.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	In the Will of Ardina Wilhelmina Theresia van Doore [2024] QSC 8
PARTIES:	IN THE WILL OF ARDINA WILHELMINA THERESIA VAN DOORE Adrianus Theodorus van Doore AND Maree Ann Morris as Executors of the Will of Ardina Wilhelmina Theresia van Doore (applicants)
FILE NO:	BS 16124 of 2023
DIVISION:	Trial Division
PROCEEDING:	Application on the papers
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	12 January 2024
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Sullivan J
ORDER:	A grant of probate of the will of Ardina Wilhelmina Theresia van Doore, as contained in a copy dated 25 March 2015, be issued to ADRIANUS THEODORUS VAN DOORE and MAREE ANN MORRIS, as executors, subject to the formal requirements of the Registrar, limited until the original will or more authenticated evidence be brought into and left in the Registry.
SOLICITORS:	Comino & Associates