In the Will of - [2011] QSC 360

SUPREME COURT OF QUEENSLAND

CITATION:

In the Will of Brian Lindsay O’Connor [2011] QSC 360

PARTIES:

PHYLLIS MAY O’CONNOR
(first applicant)
ANN MARGARET O’CONNOR
(second applicant)
PATRICIA LEE KATAJALA

(third applicant)

FILE NO:

SC No 7171 of 2011

DIVISION:

Trial Division

PROCEEDING:

Originating application

DELIVERED ON:

29 November 2011

DELIVERED AT:

Brisbane

HEARING DATE:

Application on the papers, without oral hearing

JUDGE:

Peter Lyons J

ORDER:

1. Pursuant to section 18 of the Succession Act 1981 (Qld), subject to the formal requirements of the Registrar, probate is granted to Phyllis May O’Connor, Ann Margaret O’Connor and Patricia Lee Katajala as executors, of the copy of the will signed on 16 June 2007, limited until the original will or more authenticated evidence of it be brought into and left in the Registry of this court.

2. The costs of and incidental to this application be paid from the estate of the deceased.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – EXECUTION – INFORMAL DOCUMENT INTENDED TO BE WILL – OTHER STATES OR TERRITORIES – where will of testator was not executed in accordance with s 10 of the Succession Act 1981 (Qld) – whether document was intended to form the will of the testator

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – WHEN LOST, MISLAID, DESTROYED OR NOT AVAILABLE – IN GENERAL – where original document purporting to be the will of the testator was lost – whether copy of document should be admitted to probate

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – INCORPORATION OF UNATTESTED AND DETACHED PAPERS – OTHER CASES – where papers of the deceased included an unsigned and undated note gifting money to specified persons – whether the note was a codicil to the will

Succession Act 1981 (Qld), s 10, s 18

Re Goodes [1922] SASR 180, cited
Chichester v Quatrefages [1895] P 186, cited
Queensland Trustees Limited v Ellison [1918] St R Qd 107, cited

Taylor v Waters (Unreported, Supreme Court of New South Wales, Powell J, 19 June 1992), cited

SOLICITORS:

de Groots for the applicants

Brian Lindsay O’Connor (the deceased) died on 29 July 2010.

The applicants are respectively his wife (Phyllis) and his two daughters (Ann and Patricia).

The applicants seek an order admitting to probate a copy of a document signed by the deceased, but not witnessed in accordance with s 10 of the Succession Act 1981 (Qld) (Succession Act). They seek that order, notwithstanding that the application was not served on any other person. Pursuant to r 489 of the Uniform Civil Procedure Rules 1999 (Qld), they propose that the application be decided without an oral hearing.

The document which it is sought to have admitted to probate is a handwritten document, dated 16 June 2007. The original of the document was written by the deceased, in the presence…

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: [2011] QSC 360
Decision Date: 29 November 2011

CaseChat Overview and Summary

The court was asked to determine the validity of a copy of a will in the estate of a deceased person. The original will, executed in Queensland, was lost, and the applicants sought to have a copy admitted to probate. The central issue was whether the copy accurately represented the deceased's testamentary intentions and if the document was indeed intended to serve as the will, given it was not executed in accordance with the formalities stipulated in the Succession Act 1981 (Qld). Additionally, the court had to decide whether an unsigned and undated note found among the deceased's papers, which appeared to be a codicil, should be incorporated into the will.

The court examined the circumstances surrounding the execution of the will and the nature of the lost document. It considered the evidence provided by witnesses who attested to the deceased's intention to create a will and the contents of the lost document. The court held that the copy provided was a faithful reproduction of the original will and granted probate to the executors named in the copy, subject to the original or more authenticated evidence being produced. The court also ruled that the unsigned note was not intended to be a codicil to the will, as there was insufficient evidence to support its incorporation.

Pursuant to section 18 of the Succession Act 1981 (Qld), the court granted probate to the executors of the copy of the will, with the condition that the grant remains limited until the original will or more authenticated evidence of it is produced. The costs associated with the application were to be paid from the estate of the deceased.

Orders

Orders of the court

1. Pursuant to section 18 of the Succession Act 1981 (Qld), subject to the formal requirements of the Registrar, probate is granted to Phyllis May O’Connor, Ann Margaret O’Connor and Patricia Lee Katajala as executors, of the copy of the will signed on 16 June 2007, limited until the original will or more authenticated evidence of it be brought into and left in the Registry of this court.

2. The costs of and incidental to this application be paid from the estate of the deceased.

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 Brian Lindsay O’Connor [2011] QSC 360
PARTIES:	PHYLLIS MAY O’CONNOR (first applicant) ANN MARGARET O’CONNOR (second applicant) PATRICIA LEE KATAJALA (third applicant)
FILE NO:	SC No 7171 of 2011
DIVISION:	Trial Division
PROCEEDING:	Originating application
DELIVERED ON:	29 November 2011
DELIVERED AT:	Brisbane
HEARING DATE:	Application on the papers, without oral hearing
JUDGE:	Peter Lyons J
ORDER:	1. Pursuant to section 18 of the Succession Act 1981 (Qld), subject to the formal requirements of the Registrar, probate is granted to Phyllis May O’Connor, Ann Margaret O’Connor and Patricia Lee Katajala as executors, of the copy of the will signed on 16 June 2007, limited until the original will or more authenticated evidence of it be brought into and left in the Registry of this court. 2. The costs of and incidental to this application be paid from the estate of the deceased.
CATCHWORDS:	SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – EXECUTION – INFORMAL DOCUMENT INTENDED TO BE WILL – OTHER STATES OR TERRITORIES – where will of testator was not executed in accordance with s 10 of the Succession Act 1981 (Qld) – whether document was intended to form the will of the testator SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – WHEN LOST, MISLAID, DESTROYED OR NOT AVAILABLE – IN GENERAL – where original document purporting to be the will of the testator was lost – whether copy of document should be admitted to probate SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – INCORPORATION OF UNATTESTED AND DETACHED PAPERS – OTHER CASES – where papers of the deceased included an unsigned and undated note gifting money to specified persons – whether the note was a codicil to the will Succession Act 1981 (Qld), s 10, s 18 Re Goodes [1922] SASR 180, cited Chichester v Quatrefages [1895] P 186, cited Queensland Trustees Limited v Ellison [1918] St R Qd 107, cited Taylor v Waters (Unreported, Supreme Court of New South Wales, Powell J, 19 June 1992), cited
SOLICITORS:	de Groots for the applicants