In the Will of - [2021] QSC 269

SUPREME COURT OF QUEENSLAND

CITATION:

In the Will of Mary Elizabeth Patchett (deceased) [2021] QSC 269

PARTIES:

NEIL SIMON PATCHETT
(applicant)

FILE NO:

BS 8907 of 2021

DIVISION:

Trial Division

PROCEEDING:

Application on the papers

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

18 October 2021

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 is to proceed without an oral hearing.

2. Subject to the formal requirements of the Registrar, the copy of the Will of Mary Elizabeth Patchett of E. M. Tooth Residential Aged Care Home, 162 Oceana Terrace, Manly in the State of Queensland, dated 2 October 2014 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 – where an original will was executed and four original pages and two copied pages provided to a named executor – where the missing two original pages were misplaced and never located – where the only evidence of the will is the combination of the original and copied pages provided to the executor – whether the copy of the will should be admitted to probate

Uniform Civil Procedure Rules1999 (Qld) r 489 (1), r 601 (1)(c)

Cahill v Rhodes [2002] NSWSC 561, considered
Frizzo & Anor v Frizzo & Ors [2011] QSC 107, followed

SOLICITORS:

McInnes Wilson Lawyers for the applicant

The applicant, Neil Simon Patchett, seeks an order that the document comprising four original pages and two copied pages of the Will of Mary Elizabeth Patchett (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 rule 489(1) of the Uniform Civil Procedure Rules 1999 (Qld).
The deceased executed a Will (the Will) on 2 October 2014 in the presence of two witnesses, Kirsten Jensen and Helen Stowasser. It appears Ms Jensen was then a neighbour, residing at 15 Moreton Avenue, Wynnum. Ms Stowasser then lived at Mapleton. The Will bears no mark indicating by whom it was prepared. The applicant has deposed to typing the Will on a device at the deceased’s home in about August 2014. The deceased advised the applicant of her intentions, which he typed “word for word”. The applicant then printed the Will on the deceased’s printer at her home and left it with the deceased for her to sign in front of her witnesses.
The Will appoints the applicant, who is a child of the deceased, as her executor and trustee of the Will. It makes other provision in the event that the applicant did not survive the deceased, which did not occur. It revokes all former wills. Apart from specific gifts 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: [2021] QSC 269
Decision Date: 18 October 2021

CaseChat Overview and Summary

In the case of the deceased, Mary Elizabeth Patchett, the dispute centred around the testamentary disposition of her estate. Patchett executed a will on 2 October 2014, which was to be executed in six pages. Four original pages and two copied pages were provided to the named executor. Unfortunately, the two original pages were misplaced and never located. The only remaining evidence of the will is the combination of the original and copied pages provided to the executor. The court had to determine whether the copy of the will should be admitted to probate in the absence of the two original pages.

The legal issue before the court was whether the copy of the will, when combined with the four original pages, constituted sufficient evidence to admit the will to probate. The court had to balance the principles of testamentary freedom and the need to ensure that the deceased's intentions were accurately reflected in the will. The court had to consider whether the missing pages could have materially affected the disposition of the estate and whether the copy provided was a reliable representation of the missing pages.

The court found that the missing pages did not materially affect the disposition of the estate as the testamentary intentions were clearly expressed in the remaining pages. The court held that the copy of the will, when combined with the four original pages, provided sufficient evidence to admit the will to probate. The court noted that the copy was made contemporaneously with the execution of the will and was therefore a reliable representation of the missing pages. The court also noted that the named executor had no interest in the estate and had acted in good faith throughout the proceedings.

The court ordered that the copy of the will be admitted to probate until the original will or more authenticated evidence was brought into and left in the Registry. The court also ordered that the application proceed without an oral hearing, subject to the formal requirements of the Registrar. This decision provides guidance on the admissibility of copies of wills in the absence of the original document and highlights the importance of ensuring that testamentary intentions are accurately reflected in the will.

Orders

Orders of the court

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 Mary Elizabeth Patchett of E. M. Tooth Residential Aged Care Home, 162 Oceana Terrace, Manly in the State of Queensland, dated 2 October 2014 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 Mary Elizabeth Patchett (deceased) [2021] QSC 269
PARTIES:	NEIL SIMON PATCHETT (applicant)
FILE NO:	BS 8907 of 2021
DIVISION:	Trial Division
PROCEEDING:	Application on the papers
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	18 October 2021
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 is to proceed without an oral hearing. 2. Subject to the formal requirements of the Registrar, the copy of the Will of Mary Elizabeth Patchett of E. M. Tooth Residential Aged Care Home, 162 Oceana Terrace, Manly in the State of Queensland, dated 2 October 2014 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 – where an original will was executed and four original pages and two copied pages provided to a named executor – where the missing two original pages were misplaced and never located – where the only evidence of the will is the combination of the original and copied pages provided to the executor – whether the copy of the will should be admitted to probate Uniform Civil Procedure Rules1999 (Qld) r 489 (1), r 601 (1)(c) Cahill v Rhodes [2002] NSWSC 561, considered Frizzo & Anor v Frizzo & Ors [2011] QSC 107, followed
SOLICITORS:	McInnes Wilson Lawyers for the applicant