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

1. The applicant, Peter Duell, seeks an order that the photocopy of the Will of Jack McGee (the deceased) be admitted to probate.

2. 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.

3. 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.

4. 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.

5. The applicant continued to be employed by Quinn & Scattini until sometime in 2015.  After he left that firm, he was employed by another, Feeney Family Law.

6. Sometime between 2015 and August 2017, the Original Will was collected from Quinn & Scattini under a written authority provided to that firm.  I infer it was provided by the applicant and Mrs McGee as executors.  The Original Will was then placed in the securities storage of Feeney Family Law.

7. On 31 August 2017, the applicant left employment with Feeney Family Law.  He and Mrs McGee subsequently signed an authority and forwarded it to Feeney Family Law, authorising the firm to release the Original Will, I infer, to the applicant.

8. Feeney Family Law responded to the authority by informing the applicant that the Original Will was not held by the firm.  The applicant requested the firm carry out a thorough search.  Feeney Family Law subsequently advised the applicant that a thorough search of their securities storage had been carried out and that the Original Will could not be located.  The firm also advised that it held no evidence that the Original Will was forwarded to them by any person.

9. The applicant also contacted Quinn & Scattini about the matter.  That firm informed him that it had forwarded the Original Will to Feeney Family Law pursuant to the written authority it had received.

10. The applicant concluded that the Original Will has been lost or misplaced.  In the circumstances, that conclusion seems justified.

11. The applicant has deposed that, to the best of his knowledge, information and belief, the deceased had testamentary capacity at the time of executing the Original Will.  The known objective facts, the date the Original Will was made, the deceased’s age then and at his death and his fatal illness give no reason to conclude otherwise. 

12. In Frizzo v Frizzo [2011] QSC 107, Applegarth J, following the decision in Cahill v Rhodes [2002] NSWSC 561, held that an applicant must establish five matters to succeed in admitting a copy of a Will to probate. Those matters are:

    (a)that there was actually a Will;

    (b)that the Will revoked all previous Wills;

    (c)that the applicant overcomes the presumption that a Will, which cannot be produced to the Court, was destroyed by the testator with the intention of revoking it;

    (d)that there is evidence of the terms of the Will; and

    (e)that the Will was duly executed.

13. The photocopy of the Original Will produced by the applicant and his evidence of making the photocopy, is evidence that there was a Will.  The photocopy is also evidence that, by its terms, the deceased revoked all Wills and testamentary dispositions made by him before it.  The photocopy of the Will identifies the terms of the Original Will and shows it was duly executed.  The evidence of the applicant that he made the photocopy of the Original Will after the deceased passed away is sufficient to overcome the presumption that the testator destroyed the Will with the intention of revoking it.

14. It follows that it is appropriate for the Court to grant probate of the photocopy of the Will until the Original Will or more authenticated evidence be brought into Court. 

15. On 21 June 2019, a notice was published in the Queensland Law Reporter.  By it, the applicant gave notice of his intention to apply for a grant of probate of a copy of the Will.  On 14 June 2019, the applicant had served a copy of that notice on the Public Trustee, by email.  In the circumstances, it is appropriate to make an order admitting the photocopy of the Will to probate without requiring an oral hearing.

    Final disposition

16. The Order of the Court will be:

    (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.