In the Will of

[2024] QSC 309

SUPREME COURT OF QUEENSLAND

CITATION:

In the Will of Julie Michel Farr [2024] QSC 309

PARTIES:

In the Will of Julie Michel Farr  

ASH ANDREW KARNAUCHOW

(applicant)

FILE NO/S:

BS 16075 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Orders made on 5 December 2024

Judgment delivered on 6 December 2024

DELIVERED AT:

Brisbane

HEARING DATE:

Application 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 Julie Michel Farr dated 30 March 2019, as contained in exhibit AAK-2 to the affidavit of Ash Andrew Karnauchow filed on 26 November 2024, be granted to Ash Andrew Karnauchow as executor limited until the original will or more authenticated evidence thereof be brought into and left at the Registry of this Court.

3.   The applicant’s costs of the proceeding be paid out of the estate of Julie Michel Farr on the indemnity basis.

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

COUNSEL:

J Wilson-Smith for the applicant

SOLICITORS: 

Kruger Law Pty Ltd for the applicant

1. This is an application by Ash Andrew Karnauchow that a copy of the Will of Julie Michel Farr (deceased) dated 30 March 2019 be admitted to probate. The copy of that Will is exhibit AAK-2 to the affidavit of Karnauchow filed 26 November 2024.  The applicant is the widower 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)the estate is not complex and of modest value;

   (d)there is evidence of the steps taken to find the Will and that the Will existed at the time of the deceased’s death;

   (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 photocopy of the Will.

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]  The Will has the deceased’s signature and that of the two witnesses.  One of the witnesses (and friend of the deceased), Deborah Kuster, has affirmed her signing of the Will and has identified the signature of the other witness as being that of her then-partner.   

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

6. The Will cannot be found despite searches [requirement (d)].  The Will was in the possession of the applicant after the death of the deceased, stored with his original will.  The Will was sighted by the deceased’s mother after the deceased’s death in the applicant’s possession.  The applicant thought the Will had been re-stored where it had been previously stored in his home. 

7. However the Will has not now been able to be located.  Nor has the applicant’s original will (which should have been in the same location) now been able to be located.  It appears most likely that both original wills were accidentally disposed of when decluttering of the home was being undertaking in preparation for a property sale.  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)].[3]  However, that presumption does not arise here because the Will was (until it went missing) in the possession of the applicant.

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

9. An order will be made in terms of the draft.