In the Will of; Ex parte - [2025] QSC 94

SUPREME COURT OF QUEENSLAND

CITATION:

In the Will of Peter John Hammond; Ex parte Powers [2025] QSC 94

PARTIES:

SUZANNE ELIZABETH POWERS

(applicant)

FILE NO:

BS No 847 of 2025

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

8 May 2025

DELIVERED AT:

Brisbane

HEARING DATE:

2 May 2025

JUDGE:

Martin SJA

ORDER:

1. Pursuant to s 6 of the Succession Act 1981 (Qld), but subject to the formal requirements of the Registrar, a Grant of Probate with the Will of Peter John Hammond, deceased, (Deceased) dated 22 June 2024 be made to the Applicant.

2. The Applicant’s costs of the proceeding be paid from the estate of the Deceased on the indemnity basis.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – REVOCATION –– GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – where the deceased executed his last will on 22 June 2024 – where the deceased entered into a civil partnership on 5 August 2024 – whether the will was revoked by the deceased entering into a civil partnership – whether the will was made by the deceased in contemplation of entering into a civil partnership – whether probate should be granted

Succession Act 1981 (Qld), s 6, s 14A

Hoobin v Hoobin [2004] NSWSC 705, considered
Steel v Ifrah (2013) 38 VR 186; [2013] VSC 199, considered
Re Estate of O’Brien (dec’d) (2011) 4 IR 687; [2011] IEHC 327, considered
Re Estate of Grant (dec’d) [2018] NSWSC 1031, considered

COUNSEL:

K Kluss for the applicant

SOLICITORS:

The Estate Lawyers for the applicant

Peter Hammond died on 1 December 2024. In his last will of 22 June 2024 he named the applicant (Ms Powers) as his executor. She was his sister. On 5 August 2024 the deceased entered into a civil partnership with Ms Thi Que Vu.
Ms Powers contends that the will was made in contemplation of the deceased entering into a civil partnership with Ms Vu. Whether it was so made is the question before the court.
If it was, then Ms Powers seeks an order that she be granted probate. If it was not, then Ms Powers seeks an order that letters of administration upon intestacy issue to her.
All interested parties were served. None oppose the relief sought although three of them express this by saying that they “do not consent”.
The relevant provisions of the will
The deceased had three children from his first marriage and two from his second. Ms Vu had two children.
In his will, the deceased specifically excluded the children from his first marriage. The will distributed property in the following way:
(a)his superannuation fund to Ms Vu,
(b)his pension fund to his children from his second marriage, Ms Vu and the estate in equal shares,
(c)his residuary estate:
(i)20% to Ms Vu,
(ii)30% to each of his children from his second marriage,
(iii)20% to Ms Powers
(d)his unit:
(i)on trust for Ms Vu to reside rent free for five years…

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: [2025] QSC 94
Decision Date: 8 May 2025

CaseChat Overview and Summary

The case before the court involved a dispute regarding the validity and interpretation of a will executed by Peter John Hammond, who died on 22 June 2024. The central issue was whether the will was revoked by the deceased’s subsequent entry into a civil partnership with Ms Vu on 5 August 2024. Additionally, the court needed to determine whether the will was made by the deceased in contemplation of entering into a civil partnership, and if so, whether probate should be granted to Ms Powers, the nominated executor.

The court examined various pieces of evidence, including the nature of the relationship between the deceased and Ms Vu, the deceased's statements regarding his intentions to enter into a civil partnership, and the provisions of the will. The court concluded that the deceased had made the will with the intention of entering into a civil partnership with Ms Vu, as evidenced by his determination to enter into that relationship and provide for her. The court found that the deceased’s actions were more than a mere awareness of the possibility of entering into a civil partnership, but rather a firm intention to do so.

As a result, the court found that the will was not revoked by the deceased’s entry into the civil partnership. Instead, the will was made in contemplation of that partnership. Ms Powers, the deceased’s chosen executor, was deemed suitable to receive a plenary grant of probate. The court granted probate to Ms Powers, subject to formal requirements, and ordered that the applicant’s costs be paid from the deceased's estate on an indemnity basis.

Orders

Orders of the court

1. Pursuant to s 6 of the Succession Act 1981 (Qld), but subject to the formal requirements of the Registrar, a Grant of Probate with the Will of Peter John Hammond, deceased, (Deceased) dated 22 June 2024 be made to the Applicant.

2. The Applicant’s costs of the proceeding be paid from the estate of the Deceased 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

I find that the deceased made his will in contemplation of entering into a civil partnership with Ms Vu. His conduct was consistent with more than a mere consciousness of a possibility of entering into a civil partnership. He expressed a determination to enter into that relationship and to ensure that Ms Vu would be looked after. That conclusion is supported by:(a)the evidence of the relationship between the deceased and Ms Vu, (b)the deceased’s statements with respect to the visa application about his relationship,(c)the deceased’s statements to Mr Tong that he wanted to enter into a civil partnership and to make sure that Ms Vu was “looked after should anything happen to him”, and(d)the arrangements made for Ms Vu in the deceased’s will.Conclusions The will of the deceased was made in contemplation of him entering into a civil partnership with Ms Vu. Ms Powers was the deceased’s choice to be his executor. She is an appropriate person to whom a plenary grant of probate ought issue.Orders Pursuant to s 6 of the Succession Act 1981, but subject to the formal requirements of the Registrar, a Grant of Probate with the Will of Peter John Hammond, deceased, (Deceased) dated 22 June 2024, be made to the Applicant. The Applicant’s costs of the proceeding be paid from the estate of the Deceased on the indemnity basis.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	In the Will of Peter John Hammond; Ex parte Powers [2025] QSC 94
PARTIES:	SUZANNE ELIZABETH POWERS (applicant)
FILE NO:	BS No 847 of 2025
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	8 May 2025
DELIVERED AT:	Brisbane
HEARING DATE:	2 May 2025
JUDGE:	Martin SJA
ORDER:	1. Pursuant to s 6 of the *Succession Act* 1981 (Qld), but subject to the formal requirements of the Registrar, a Grant of Probate with the Will of Peter John Hammond, deceased, (Deceased) dated 22 June 2024 be made to the Applicant. 2. The Applicant’s costs of the proceeding be paid from the estate of the Deceased on the indemnity basis.
CATCHWORDS:	SUCCESSION – MAKING OF A WILL – REVOCATION –– GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – where the deceased executed his last will on 22 June 2024 – where the deceased entered into a civil partnership on 5 August 2024 – whether the will was revoked by the deceased entering into a civil partnership – whether the will was made by the deceased in contemplation of entering into a civil partnership – whether probate should be granted Succession Act 1981 (Qld), s 6, s 14A Hoobin v Hoobin [2004] NSWSC 705, considered Steel v Ifrah (2013) 38 VR 186; [2013] VSC 199, considered Re Estate of O’Brien (dec’d) (2011) 4 IR 687; [2011] IEHC 327, considered Re Estate of Grant (dec’d) [2018] NSWSC 1031, considered
COUNSEL:	K Kluss for the applicant
SOLICITORS:	The Estate Lawyers for the applicant