In the Will of

[2025] QSC 1

SUPREME COURT OF QUEENSLAND

CITATION:

In the Will of Christina Boyd [2025] QSC 1

PARTIES:

In the Will of Christina Boyd  

PAUL BOYD

(applicant)

FILE NO/S:

SE 2142 of 2024

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Orders made on 6 January 2025

Judgment delivered on 6 January 2025

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Hindman J

ORDER:

1. Pursuant to rule 489(1) of the Uniform Civil Procedure Rules 1999 (Qld) this application is to proceed without oral hearing.

2.   Subject to the formal requirements of the Registrar, a Grant of Probate of a copy of the will of Christina Boyd dated 16 February 2018, as contained in exhibit A to the affidavit of Paul Boyd affirmed on 20 November 2024 and filed on 19 December 2024, be granted to Paul Boyd as executor limited until the original will or more authenticated evidence thereof be brought into and left at the Registry of this Court.

CATCHWORDS:

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – LIMITED, SPECIAL AND CONDITIONAL GRANTS OF PROBATE AND ADMINISTRATION – PROBATE OF LOST WILL – where an original Will cannot be found – where there is a photocopy of the original Will – whether the copy can allow for admission to probate

SOLICITORS:

Ormeau Legal Pty Ltd for the applicant

1. This is an application by Paul Boyd that a copy of the Will of Christina Boyd (deceased) dated 16 February 2018 be admitted to probate. The copy of that Will is exhibit A to the affidavit of Paul Boyd affirmed on 20 November 2024 and filed on 19 December 2024.  The applicant is the son of the deceased and the named executor in the Will. 

2. I am satisfied that it is not inappropriate to deal with this application on the papers in circumstances where:

   (a)the application for probate was advertised;

   (b)the persons who might be interested in the grant of probate appear limited;

   (c)there is no evidence that suggests that the estate is complex;

   (d)there is evidence of the steps taken to find the Will;

   (e)the application does not raise any novel questions of law.

3. There are five matters that must be established for the admission to probate of a copy of the Will:

   (a)that the original Will existed;

   (b)that the original Will was duly executed;

   (c)the terms of the original Will and that it revoked all previous Wills;

   (d)that proper searches have been made for the original Will; and

   (e)that any presumption of revocation of the original Will is rebutted.[1]

   [1]See Frizzo v Frizzo [2011] QSC 107 at [161] where Applegarth J followed the New South Wales decision of Cahill v Rhodes [2002] NSWSC 561 at [55].

4. In this case the existence of the Will [requirement (a)] and the terms of the Will and that it revoked all previous wills [requirement (c)] are proved by the copy of the Will that was held electronically by the lawyers who prepared the Will for the deceased.

5. The due execution of the Will [requirement (b)] can be presumed because the copy of the Will has an attestation clause and appears to have been duly executed in circumstances where one would expect the formalities to be observed.[2]  In that respect, the Will has the deceased’s signature and that of two witnesses.  The two witnesses are a paralegal and solicitor of the firm of lawyers who prepared the Will for the deceased.  The Will appears to have been executed at the premises of the firm of lawyers.  There is no affidavit from either of the witnesses to the Will affirming the signing of the Will, but that can be excused in the circumstances just mentioned.

   [2]See Kay v Fisher [2009] WASC 193 at [45].

6. The Will cannot be found despite searches [requirement (d)].  An electronic copy of the Will has aways been in the possession of the lawyers for the deceased.  A search of their safe custody facilities has confirmed that they do not hold the original document.[3]  There is no evidence as to whether the deceased was ever in possession of the original Will, but that would be a reasonable inference to draw.  A search of the deceased’s effects at the aged care facility at which she resided has not uncovered the Will.  It is known that the deceased consulted with her lawyers again in about November 2023 in relation to making an Enduring Power of Attorney and no issue about the Will appears to have been raised then.[4]  The deceased is not known to have consulted with any other lawyers.     

   [3]Note, that fact ought to have been sworn to, but is in fact only contained in the submissions made on behalf of the applicant.  However as those submissions have been prepared by a solicitor for the firm, I am prepared to proceed on the basis that the assertion is correct. 

   [4]Again, not this is a fact that ought to have been contained in an affidavit from a solicitor of the firm, not merely in submissions.   

7. The Will has not been able to be located.  It is likely it has been accidentally lost.  Proper enquiries to locate the Will have been made.    

8. If a Will is last traced to the possession of the testator, and that Will cannot be found, a presumption arises that it was destroyed by the testator with intention of revoking it [requirement (e)].[5]  In this case I consider that presumption (if it in fact arises given it is not clear that the deceased ever had possession of the original Will) rebutted in circumstances where the deceased would have been expected to consult with her lawyers in November 2023 had she wished to make a new will, and there is evidence that the Will represented the deceased’s testamentary wishes as she had expressed them to her son Paul (that is, that the two brothers share equally in her estate after some specific gifts given). 

   [5]Re Warren (deceased) [2014] QSC 101 at [11].

9. An order will be made in the terms identified on the first page.  No order as to costs was sought or is made.