In the Will of - [2021] QSC 117

SUPREME COURT OF QUEENSLAND

CITATION:

In the Will of Jack McGee (deceased) [2021] QSC 117

PARTIES:

PETER STANLEY DUELL
(applicant)

FILE NO/S:

BS5739 of 2021

DIVISION:

Trial Division

PROCEEDING:

Application on the papers

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

25 May 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 photocopy of the Will of JACK McGEE of 132 Sapphire Street, Holland Park, Brisbane in the State of Queensland that is exhibit “A” to the Affidavit in support of probate application of Peter Stanley Duell sworn 22 July 2019 be admitted to probate until the Original Will or more authenticated evidence be brought into and left in the Registry.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – WHEN LOST, MISLAID, DESTROYED OR NOT AVAILABLE – where a copy of the original will was executed and provided to a named executor – where the original will was misplaced and never located – where the only evidence of the will is the copy made by the executor – whether the copy of the original will should be admitted to probate

Uniform Civil Procedure Rules 1999 (Qld) r 7, r 489, r 598

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

SOLICITORS:

Peter Stanley Duell, the applicant

The applicant, Peter Duell, seeks an order that the photocopy of the Will of Jack McGee (the deceased) be admitted to probate.
The deceased executed a Will (the Original Will) on 18 December 1985 in the presence of two witnesses, D and G M Jones, who were then his neighbours, residing at 134 Sapphire Street, Holland Park. The Will bears no mark indicating by whom it was prepared. It appoints the deceased’s wife, Patricia Jean McGee, and the applicant as executors and trustees of the Will. The applicant is the brother-in-law of the deceased.
The deceased would have been about 56 years of age when the Original Will was made. He survived for another 28 years, dying in the Princess Alexandra Hospital on 4 January 2014 at 85 years of age. The cause of his death was ST-elevation myocardial infarct, Ischaemic heart disease, Gastrointestinal bleed, hypertension. His last illness was of two days’ duration.
After the deceased died, his widow, Mrs McGee, gave the Original Will to the applicant. At that time, the applicant was employed as a solicitor in the firm Quinn & Scattini. The Original Will was placed in that firm’s securities storage. Before it was secured, the applicant made a photocopy of the Original Will and placed the photocopy on the firm’s file.
The applicant continued to be employed by Quinn & Scattini until sometime in 2015. After he left that firm, he…

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.

Keep reading for free

Create a free CaseChat account to read In the Will of and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] QSC 117
Decision Date: 25 May 2021

CaseChat Overview and Summary

The case involved an application for the probate of a copy of a will, as the original document could not be located. The deceased, Jack McGee, had executed a will, and a copy was provided to Peter Stanley Duell, one of the named executors. However, the original will was misplaced and never found, leaving the copy as the sole evidence of the deceased's testamentary intentions. The application was heard in the Queensland Supreme Court, with the court tasked with determining whether the copy of the will should be admitted to probate in the absence of the original document.

The central legal issue before the court was whether the copy of the will, made by one of the executors, could be admitted to probate despite the original will being lost. The court had to consider the requirements for proving the contents of a lost will, as well as the circumstances in which a copy of a will may be admitted as evidence of its contents. The court needed to determine whether the copy provided by Duell was sufficiently reliable and authentic to serve as the basis for granting probate.

The court found that the copy of the will provided by Duell was admissible as evidence of the deceased's testamentary intentions. The court reasoned that the copy was made by an executor and had been in his possession since the execution of the will. Furthermore, the court noted that there was no evidence suggesting that the copy had been altered or that it did not accurately reflect the deceased's intentions at the time of execution. The court concluded that the copy was a reliable and authentic representation of the deceased's will, and it should be admitted to probate in the absence of the original document.

The court ordered that the copy of the will, as exhibited in the affidavit, should be admitted to probate, subject to the formal requirements of the Registrar. The court also directed that the application proceed without an oral hearing, pursuant to rule 489(1) of the Uniform Civil Procedure Rules 1999 (Qld). This decision allows the executors to proceed with the administration of the estate based on the copy of the will, pending the possibility of the original document being located or more authenticated evidence being provided.

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 photocopy of the Will of JACK McGEE of 132 Sapphire Street, Holland Park, Brisbane in the State of Queensland that is exhibit “A” to the Affidavit in support of probate application of Peter Stanley Duell sworn 22 July 2019 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 Jack McGee (deceased) [2021] QSC 117
PARTIES:	PETER STANLEY DUELL (applicant)
FILE NO/S:	BS5739 of 2021
DIVISION:	Trial Division
PROCEEDING:	Application on the papers
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	25 May 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 photocopy of the Will of JACK McGEE of 132 Sapphire Street, Holland Park, Brisbane in the State of Queensland that is exhibit “A” to the Affidavit in support of probate application of Peter Stanley Duell sworn 22 July 2019 be admitted to probate until the Original Will or more authenticated evidence be brought into and left in the Registry.
CATCHWORDS:	SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – WHEN LOST, MISLAID, DESTROYED OR NOT AVAILABLE – where a copy of the original will was executed and provided to a named executor – where the original will was misplaced and never located – where the only evidence of the will is the copy made by the executor – whether the copy of the original will should be admitted to probate Uniform Civil Procedure Rules 1999 (Qld) r 7, r 489, r 598 Cahill v Rhodes [2002] NSWSC 561, considered Frizzo & Anor v Frizzo & Ors [2011] QSC 107, followed
SOLICITORS:	Peter Stanley Duell, the applicant