In the Will of

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…