In the will of - [2013] QSC 265

SUPREME COURT OF QUEENSLAND

CITATION:

In the will of Dianne Margaret Cardie [2013] QSC 265

PARTY:

HEATHER JOY NEWBERY
(applicant)

FILE NO/S:

SC No 7653 of 2012

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

26 September 2013

DELIVERED AT:

Brisbane

HEARING DATE:

26 September 2013

JUDGE:

Chief Justice

ORDERS:

It is ordered that:

1. A grant of probate of the will of DIANNE MARGARET CARDIE (“the Deceased”), as contained in a copy, dated the twenty-first day of April, 1989 be issued to HEATHER JOY NEWBERY, subject to the formal requirements of the Registrar, as sole executor limited until the original will or more authenticated evidence be brought into and left in the Registry of this Court.

2. The Applicant’s costs of and incidental to this application be paid out of the Deceased’s estate on the indemnity basis.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – WHEN LOST, MISLAID, DESTROYED OR NOT AVAILABLE – IN GENERAL – a copy of the deceased’s will was provided to the Public Trustee by her mother – the original will could not be found despite a comprehensive search and public advertisements seeking information on its whereabouts – whether the copy will should be admitted to probate – whether the basis for the admission of the copy will to probate was under s 18 of the Succession Act 1981 (Qld) or the common law

Probate Rules 2004 (SA), r 68
Succession Act 1981 (Qld), s 18

Cahill v Rhodes [2002] NSWSC 561, considered
Curley v Duff (1985) 2 NSWLR 716, approved
Frizzo & Anor v Frizzo & Ors [2011] QSC 107, approved
Price v Tickle [2011] QSC 206, approved

COUNSEL:

R D Williams for the Applicant

SOLICITORS:

Crilly Lawyers for the Applicant

CHIEF JUSTICE: Earlier today I ordered that a copy will, dated 21 April 1989, of the deceased Dianne Margaret Cardie, be admitted to probate, with a grant in favour of the deceased’s only sister, Heather Joy Newbery, the executor named in that copy will.
Mr Williams, Counsel for the applicant, asked me to express the reasons why I made the order.
The deceased’s mother had provided a copy of the deceased’s will to the Public Trustee. The Public Trustee was appointed guardian and administrator of the estate of the deceased – who was hospitalized with alcoholic dementia and died on 14 May 2012. A comprehensive search has not uncovered the original will, and public advertisements seeking information about its location produced no result. The deceased’s only child, her son David, is her only beneficiary under the will.
The copy will, if authentic, indicates that the original was properly executed, and its content involved rational distribution of the deceased’s estate. In the original of the copy, the testator revokes all former wills.
The son of the deceased, incidentally, would also be the only beneficiary on an intestacy. The practical consequence of now admitting the copy…

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.

Keep reading for free

Create a free CaseChat account to read In the will of and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] QSC 265
Decision Date: 26 September 2013

CaseChat Overview and Summary

Dianne Margaret Cardie passed away, leaving behind a copy of her will. The Public Trustee, acting on behalf of the estate, sought a grant of probate for the will, which was provided by the deceased’s mother. Despite extensive efforts, including public advertisements, the original will could not be located. The central issue before the court was whether the copy of the will could be admitted to probate, and if so, whether the authority to do so was grounded in section 18 of the Succession Act 1981 (Qld) or the common law.

The court examined the statutory provision, section 18, which allows for the admission of a copy of a will to probate if the original cannot be found. The court also considered the common law precedents that permit the admission of a copy of a will when the original is lost or destroyed. The court concluded that the copy of the will could be admitted to probate based on the statutory authority provided by section 18, as the circumstances clearly aligned with the statutory criteria. The court noted that the common law principles were not necessary to resolve the matter at hand.

In light of the above, the court ordered that a grant of probate be issued for the copy of the will. The executor, Heather Joy Newbery, was to be granted probate of the will as provided in the copy, subject to the formal requirements of the Registrar. The court further directed that the applicant’s costs associated with the application be paid from the estate on an indemnity basis. This decision ensures that the deceased’s wishes, as evidenced by the copy of her will, are legally recognised and implemented.

Orders

Orders of the court

It is ordered that:

1. A grant of probate of the will of DIANNE MARGARET CARDIE (“the Deceased”), as contained in a copy, dated the twenty-first day of April, 1989 be issued to HEATHER JOY NEWBERY, subject to the formal requirements of the Registrar, as sole executor limited until the original will or more authenticated evidence be brought into and left in the Registry of this Court.

2. The Applicant’s costs of and incidental to this application be paid out of the Deceased’s estate on the indemnity basis.

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 Dianne Margaret Cardie [2013] QSC 265
PARTY:	HEATHER JOY NEWBERY (applicant)
FILE NO/S:	SC No 7653 of 2012
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	26 September 2013
DELIVERED AT:	Brisbane
HEARING DATE:	26 September 2013
JUDGE:	Chief Justice
ORDERS:	It is ordered that: 1. A grant of probate of the will of DIANNE MARGARET CARDIE (“the Deceased”), as contained in a copy, dated the twenty-first day of April, 1989 be issued to HEATHER JOY NEWBERY, subject to the formal requirements of the Registrar, as sole executor limited until the original will or more authenticated evidence be brought into and left in the Registry of this Court. 2. The Applicant’s costs of and incidental to this application be paid out of the Deceased’s estate on the indemnity basis.
CATCHWORDS:	SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – WHEN LOST, MISLAID, DESTROYED OR NOT AVAILABLE – IN GENERAL – a copy of the deceased’s will was provided to the Public Trustee by her mother – the original will could not be found despite a comprehensive search and public advertisements seeking information on its whereabouts – whether the copy will should be admitted to probate – whether the basis for the admission of the copy will to probate was under s 18 of the Succession Act 1981 (Qld) or the common law Probate Rules 2004 (SA), r 68 Succession Act 1981 (Qld), s 18 Cahill v Rhodes [2002] NSWSC 561, considered Curley v Duff (1985) 2 NSWLR 716, approved Frizzo & Anor v Frizzo & Ors [2011] QSC 107, approved Price v Tickle [2011] QSC 206, approved
COUNSEL:	R D Williams for the Applicant
SOLICITORS:	Crilly Lawyers for the Applicant