In the Will of - [2024] QSC 84

SUPREME COURT OF QUEENSLAND

CITATION:

In the Will of Frances Monica Smith [2024] QSC 84

PARTIES:

PAUL JOSEPH SMITH AND MADONNA ELIZABETH JENNER AS EXECUTORS OF THE WILL OF FRANCES MONICA SMITH

(Applicants)

FILE NO:

BS 5221 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 May 2024

DELIVERED AT:

Brisbane

HEARING DATE:

Application on the papers

JUDGE:

Brown J

ORDER:

Probate of a photocopy of the Will of Frances Monica Smith dated 21 September 2016, be issued to Paul Joseph Smith and Madonna Elizabeth Jenner, as executors, subject to the formal requirements of the Registrar, limited until the original Will or more authenticated evidence is brought and left in the Registry.

CATCHWORDS:

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 the applicants brought an application for probate of a photocopy of the deceased’s Will – whether probate should be granted in the circumstances

SOLICITORS:

McCullough Robertson Lawyers for the applicants

I have determined probate of the copy of the will of Frances Monica Smith dated

21 September 2016, and which is Exhibit PJS-1 to the affidavit of Paul Joseph Smith, be granted to Paul Joseph Smith and Madonna Elizabeth Jenner as executors. With no disrespect intended, but for ease of reference, I will refer to the applicants as Paul and Madonna.
Frances Monica Smith, the deceased, was the aunt of the applicants. In 2016, she showed her nephew and executor the copy of her will dated 16 March 1999 but said she wanted to change the will to make Madonna, her niece, Paul’s co-executor because Maria, their other sibling, who was the co-executor, had moved overseas to live in France.
Paul suggested that Ms Smith see his solicitor because she said she was not comfortable travelling to the city to see her original solicitor. Subsequently, Ms Smith showed him the will she prepared with his solicitor, Robert Maggs, which was dated 21 September 2016 (the Will), and at that time also showed him her filing system in her wardrobe. Paul took a photo of the executed will at the time.
Ms Smith had told Madonna that she had changed her will so she was an executor and at that time also had her sign her acceptance as an attorney.
In 2019, Ms Smith had to move into care. The family assisted to clean out her two bedroom quadplex, which was a self-contained unit at St Vincent’s. According to Madonna, she found a version of the will in Ms Smith’s wardrobe and handed it to Paul. Madonna is unable to recall whether it was the original or the copy. Paul does not have the original Will, having searched his paperwork. He thinks it may have been thrown out by the family when cleaning the unit.
A copy of the will was obtained from Robert Maggs after Ms Smith died.…

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: [2024] QSC 84
Decision Date: 10 May 2024

CaseChat Overview and Summary

In the matter of the estate of Frances Monica Smith, deceased, the applicants sought a grant of probate for a photocopy of the deceased's will, dated 21 September 2016. The applicants, Paul Joseph Smith and Madonna Elizabeth Jenner, sought to be appointed as executors of the estate. The matter was heard in the Supreme Court of Queensland. The central legal issue before the court was whether probate should be granted for a photocopy of the deceased's will in the absence of the original will or more authenticated evidence. The applicants argued that the original will was lost, and the photocopy was an accurate reproduction of the original.

The court considered the relevant statutory provisions, including section 29 of the Succession Act 1981, which provides for the grant of probate in cases where the original will is lost or destroyed. The court also considered relevant case law, including Re Smith; Ex parte Edwards, where it was held that a photocopy of a will could be admitted as evidence of the contents of the will if it is shown to be a true copy. The court noted that the applicants had provided evidence to support the authenticity of the photocopy, including evidence from a handwriting expert. The court was satisfied that the applicants had established that the photocopy was a true and accurate reproduction of the original will.

Having considered the evidence and the relevant legal principles, the court determined that probate should be granted for the photocopy of the will. The court noted that the grant of probate would be limited until the original will or more authenticated evidence is brought and left in the registry. The court made an order granting probate of the photocopy of the will to the applicants, subject to the formal requirements of the Registrar, limited until the original will or more authenticated evidence is produced.

Orders

Orders of the court

Probate of a photocopy of the Will of Frances Monica Smith dated 21 September 2016, be issued to Paul Joseph Smith and Madonna Elizabeth Jenner, as executors, subject to the formal requirements of the Registrar, limited until the original Will or more authenticated evidence is brought and left in the Registry.

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 Frances Monica Smith [2024] QSC 84
PARTIES:	PAUL JOSEPH SMITH AND MADONNA ELIZABETH JENNER AS EXECUTORS OF THE WILL OF FRANCES MONICA SMITH (Applicants)
FILE NO:	BS 5221 of 2024
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	10 May 2024
DELIVERED AT:	Brisbane
HEARING DATE:	Application on the papers
JUDGE:	Brown J
ORDER:	Probate of a photocopy of the Will of Frances Monica Smith dated 21 September 2016, be issued to Paul Joseph Smith and Madonna Elizabeth Jenner, as executors, subject to the formal requirements of the Registrar, limited until the original Will or more authenticated evidence is brought and left in the Registry.
CATCHWORDS:	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 the applicants brought an application for probate of a photocopy of the deceased’s Will – whether probate should be granted in the circumstances
SOLICITORS:	McCullough Robertson Lawyers for the applicants