In the Will of - [2022] QSC 136

SUPREME COURT OF QUEENSLAND

CITATION:

In the Will of Nina Elizabeth Mary Greer [2022] QSC 136

PARTIES:

BARBARA JANE DANSON
(applicant)

FILE NO/S:

BS 6528 of 2022

DIVISION:

Trial Division

PROCEEDING:

Application on the papers

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

5 July 2022

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Bradley J

ORDER:

The Order of the Court is that:

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

2. Subject to the formal requirements of the Registrar, the copy of the Will of Nina Elizabeth Mary Greer, deceased, of 16B Oyster Point Esplanade, Scarborough in the State of Queensland, dated 19 May 2004 be admitted to probate until the original of the Will or more authenticated evidence is brought into and left in the Registry.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – WHEN LOST, MISLAID, DESTROYED OR NOT AVAILABLE – where an original will was executed and a copy retained by the testatrix and one of the beneficiaries – where the original Will is missing and has not been located – where the evidence of the will is the copy of the Will provided to a beneficiary – whether the copy of the will should be admitted to probate.

Cahill v Rhodes [2002] NSWSC 561, cited.

COUNSEL:

A Rae for the applicant

SOLICITORS:

Spink Legal for the applicant

The applicant, Barbara Jane Danson, seeks an order that a copy of the Will of Nina Elizabeth Mary Greer (the deceased), be admitted to probate. 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 19 May 2004 in the presence of two witnesses, William John Allen and Kelly Maree Connelly. Mr Allen was a solicitor. The Will was prepared by his firm WJ Allen. Ms Connelly described her occupation as housewife. She lived in the same suburb as the deceased and near to the solicitor’s office.
The Will revokes all former Wills and testamentary dispositions made by the deceased. It appoints the deceased’s daughter, Lorraine Elizabeth Milner, to be the executrix and trustee of the Will. It provides that if Ms Milner does not survive the deceased for 30 days, then the applicant, as another daughter of the deceased, is to be the executrix and trustee of the Will.
The whole of the deceased’s real and personal estate is given, devised and bequeathed to the trustee on trust for such of the deceased’s children as shall survive her and, if there is more than one, then to her surviving children as tenants in common in equal shares.
The material before the Court deposes that the deceased made known to a number of her children the fact that she had made the Will and that a…

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: [2022] QSC 136
Decision Date: 5 July 2022

CaseChat Overview and Summary

In the matter of the succession to the estate of Nina Elizabeth Mary Greer, the court was asked to determine whether a copy of her will should be admitted to probate, given that the original document was missing. Greer executed her will on 19 May 2004 and retained a copy for herself while providing another to a beneficiary. The original has since been lost or destroyed, and efforts to locate it have been unsuccessful. The central issue before the court was whether the copy of the will, in the absence of the original, could be admitted to probate.

The court considered whether the copy of the will provided by the beneficiary met the legal criteria for probate in the absence of the original document. The court recognised that the original will was not available and examined the circumstances under which the copy had been retained and provided. The court concluded that the copy of the will could be admitted to probate as it was the best available evidence of the deceased’s testamentary intentions, and there was no suggestion of fraud or error in its creation. The court also noted the lack of evidence that the copy had been altered since it was executed.

The court determined that the formal requirements for probate were satisfied by the copy of the will, and it granted an order admitting the copy to probate. The court emphasised that this order was conditional on the formal requirements being met by the Registrar and would remain in effect until the original will or more authenticated evidence was produced. This decision ensures that the testamentary intentions of the deceased are given effect, and the estate can be administered according to the terms of the will as evidenced by the copy.

Orders

Orders of the court

The Order of the Court is that:

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

2. Subject to the formal requirements of the Registrar, the copy of the Will of Nina Elizabeth Mary Greer, deceased, of 16B Oyster Point Esplanade, Scarborough in the State of Queensland, dated 19 May 2004 be admitted to probate until the original of the Will or more authenticated evidence is 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 Nina Elizabeth Mary Greer [2022] QSC 136
PARTIES:	BARBARA JANE DANSON (applicant)
FILE NO/S:	BS 6528 of 2022
DIVISION:	Trial Division
PROCEEDING:	Application on the papers
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	5 July 2022
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Bradley J
ORDER:	The Order of the Court is that: 1. Pursuant to rule 489(1) of the *Uniform Civil Procedure Rules* 1999 (Qld) this application is to proceed without an oral hearing. 2. Subject to the formal requirements of the Registrar, the copy of the Will of Nina Elizabeth Mary Greer, deceased, of 16B Oyster Point Esplanade, Scarborough in the State of Queensland, dated 19 May 2004 be admitted to probate until the original of the Will or more authenticated evidence is brought into and left in the Registry.
CATCHWORDS:	SUCCESSION – MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – WHEN LOST, MISLAID, DESTROYED OR NOT AVAILABLE – where an original will was executed and a copy retained by the testatrix and one of the beneficiaries – where the original Will is missing and has not been located – where the evidence of the will is the copy of the Will provided to a beneficiary – whether the copy of the will should be admitted to probate. Cahill v Rhodes [2002] NSWSC 561, cited.
COUNSEL:	A Rae for the applicant
SOLICITORS:	Spink Legal for the applicant