In the will of

[2014] QSC 66

SUPREME COURT OF QUEENSLAND

CITATION:

In the will of Gregory Thomas Barnes [2014] QSC 66

PARTIES:

PETER RODERICK BARNES
(applicant)
v
DANIEL JOHN SULLIVAN

(respondent)

FILE NO/S:

SC 7208 of 2013

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 April 2014

DELIVERED AT:

Brisbane

HEARING DATE:

11 April 2014

JUDGE:

Chief Justice

ORDER:

Subject to the formal requirements of the Registrar, a grant of probate be made to Peter Roderick Barnes of the copy Will of Gregory Thomas Barnes, dated 25 February 1991, a copy of which is exhibit ‘PRB-1’ to the affidavit of Peter Roderick Barnes sworn 31 March 2014.1.    

The applicant’s costs of and incidental to this application be paid from the estate of the deceased on the indemnity basis.2.    

CATCHWORDS:

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – LIMITED, SPECIAL AND CONDITIONAL GRANTS OF PROBATE AND ADMINISTRATION – PROBATE OF LOST WILL – the original of a will, executed over 20 years earlier, could not be located when the deceased died of lung cancer – the will left the deceased’s estate in equal shares to the deceased’s brothers - the respondent, the de facto partner of the deceased for the preceding 10 years, alleged that the will was revoked by the deceased – the respondent argued the relationships between the deceased and his brothers had deteriorated and that the evidence demonstrated the deceased was interested and inquired into making a new will before his death – as the original will could not be located, there exists a rebuttable presumption of revocation of will – whether the deceased had intended he would die intestate – whether the deceased had reason to revoke his will by intentionally destroying it – whether the presumption of revocation of the will of the deceased is rebutted

Re Cardie [2013] QSC 265, applied

COUNSEL:

R M Treston QC with C Tam for the applicant

P A Kronberg for the respondent

SOLICITORS:

Catton Roderick for the applicant

Martin & Co for the respondent

1. CHIEF JUSTICE: This is an application for the admission to probate of a copy will of the deceased dated 25 February 1991.  The deceased died of lung cancer on 18 April 2013.

1. Under the copy will, the original of which was formally executed, the deceased appointed the applicant Peter Barnes, his elder brother, as his executor, revoked all former wills, and left his estate in equal shares to his three brothers (Peter, Graham and Patrick).

1. Notwithstanding diligent searches, the original of the will has not been found.  Accordingly, a rebuttable presumption of revocation arises.

1. Mr Daniel Sullivan, the respondent, who contends he was the deceased’s de facto partner, lodged a caveat on 19 July 2013, so that Peter Barnes’s application for probate was requisitioned.  In Re Cardie [2013] QSC 265, I reviewed the principles applicable to the admission to probate of copy wills. The critical issue for the present is whether the presumption that the original will was destroyed has been overcome. The other conditions for the admission of the copy are clearly met.

1. The evidence of the solicitor Stephen Burton shows that the deceased was interested in making a new will, as his condition deteriorated, possibly giving Daniel Sullivan the right to occupy his house after his death, but that no such will was executed or agreed to.  Mr Burton’s statutory declaration warrants the conclusion that up until when he probably lost testamentary capacity, the deceased regarded his current will as the original of which we have the copy.

1. The copy of the will which was executed in 1991 makes an apparently careful and complete disposition of the deceased’s property.  The question arises whether over the ensuing two decades, anything arose which shows the deceased had reason to revoke that will by destroying it. 

1. Daniel Sullivan points to his de facto partner relationship with the deceased over the 10 years prior to his death.  On Mr Burton’s evidence, however, while the deceased was up until his death considering making some provision for Daniel, he did not get around to doing so, and was apparently proceeding on the basis that his will of which we have the copy would operate unless and until changed. 

1. Another consideration is whether there was a serious problem in the relationship between the deceased and his brothers such as may have prompted his cutting them out of his estate.  There is evidence that the deceased was upset they did not attend his 50^th birthday celebration.  I heard oral evidence from Peter and Joanne Barnes and I was satisfied on that evidence that no major rupture of relevance occurred and that the brothers continued to communicate amicably.  The significance of the deceased’s estate going to his brothers is explained by the fact that the deceased did not marry and had no children of his own. 

1. There are other considerations.  In late 2012, the deceased told Joanne Barnes, his sister-in-law, that the issue of his will was “all sorted”, with everything “filed together”.  In January the following year, the deceased told Peter Barnes, consistently with the 1991 will, that Peter Barnes was his executor.  Jennifer Hurst deposes that a few days prior to the death, Daniel Sullivan spoke to her about “changing Greg’s will”, as if a will was then subsisting.  The copy will was actually provided to Peter Barnes by Daniel Sullivan’s solicitors, after the deceased’s death, without any accompanying suggestion that it had been revoked (where Daniel had had some discussion with the solicitor Burton prior to the death).

1. The deceased was a careful man who would not have contemplated, by destroying his will and not making another, that he would die intestate.

1. While I have not referred in these reasons to all of the relevant circumstances, it is these principal circumstances which combine to rebut the presumption of revocation.  There will be orders in terms of paragraphs 1 and 3 of the application filed 4 April 2014.