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brothers - the respondent, the de facto partner of the deceased for the preceding 10 years, alleged that the will was revoked by the deceased – the respondent argued the relationships between the deceased and his brothers had deteriorated and that the evidence demonstrated the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

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.

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).

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

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…

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: [2014] QSC 66
Decision Date: 16 April 2014

CaseChat Overview and Summary

The case involves the application for the grant of probate of a lost will in the estate of Gregory Thomas Barnes, who passed away from lung cancer. Peter Roderick Barnes, one of the deceased's brothers, applied for probate of a copy of the deceased's will, dated 25 February 1991, which left the estate in equal shares to the deceased's brothers. The respondent, the de facto partner of the deceased for the preceding 10 years, opposed the application, claiming that the will had been revoked by the deceased. The respondent argued that the relationships between the deceased and his brothers had deteriorated and that the evidence indicated the deceased was interested in making a new will before his death. Given that the original will could not be located, there was a rebuttable presumption of revocation of will. The court had to decide whether the deceased had intended to die intestate, whether the deceased had reason to revoke his will by intentionally destroying it, and whether the presumption of revocation of the will was rebutted.

The court held that the presumption of revocation was not rebutted. The evidence showed that the deceased had not acted inconsistently with the existence of the will, and the respondent had not demonstrated that the deceased had taken positive action to revoke the will. The court found that the respondent had not discharged the onus of proving revocation of the will, and therefore, the presumption of revocation was not rebutted. The court noted that the deceased had not taken any steps to make a new will, and there was no evidence to suggest that the deceased had intentionally destroyed the original will. The court held that the applicant had satisfied the court that the copy of the will was a true copy of the original will, and therefore, the grant of probate should be made to the applicant.

The court made a grant of probate to Peter Roderick Barnes of the copy will of Gregory Thomas Barnes, dated 25 February 1991, subject to the formal requirements of the Registrar. The court also ordered that the applicant's costs of and incidental to this application be paid from the estate of the deceased on the indemnity basis.

Orders

Orders of the court

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.

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 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