Lemon v Lemon

Case [2014] QSC 123

SUPREME COURT OF QUEENSLAND

CITATION:

Lemon v Lemon & Anor [2014] QSC 123

PARTIES:

SHERIDAN LEMON

(applicant)

v

BRIDGETTE STACEY LEMON

(first respondent)

BROOKE AMANDA LEMON

(second respondent)

FILE NO/S:

BS4383/14

DIVISION:

Trial

PROCEEDING:

Application on the papers

DELIVERED ON:

2 June 2014

DELIVERED AT:

Brisbane

HEARING DATE:

28 May 2014

JUDGE:

Alan Wilson J

ORDER:

The order of the court is that:

1.       Subject to the formal requirements of the Registrar, a grant of probate of a copy of the Will of Eunice Brealey, late of Beenleigh Nursing Home, 45 York Street, Beenleigh in the State of Queensland dated 16 June 1989 issue to Sheridan Lemon as sole executor limited until the original will or more authenticated evidence be brought into and left in the Registry.

2.       That the Applicant’s costs of and incidental to this Application be paid out of the estate of Eunice Brealey on an 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 the applicant has applied on the papers for probate, in solemn form, of a photocopy of the will of her late mother – where the applicant is the sole executor of the will – where the original will has been lost – whether the applicant should be granted probate in solemn form

Succession Act 1981 (Qld)

Allan v Morrison [1900] AC 604

Frizzo & Anor v Frizzo & Ors [2011] QSC 107

Price v Tickle & Ors [2011] QSC 206

Re: Cardie [2013] QSC 265

COUNSEL:

The matter was heard and determined on the papers under Ch 13 Pt 6 of the Uniform Civil Procedure Rules 1999.

SOLICITORS:

McLaughlin & Associates Lawyers for the applicant and respondents

  1. Wilson J:  Ms Sheridan Lemon has applied on the papers for probate, in solemn form, of a photocopy of the will of her late mother, Eunice Brealey.  Mrs Brealey died in a nursing home at Beenleigh on 8 October 2012.  She was predeceased by her husband Robert Brealey who died on 22 March 2007.  Mrs Lemon is the only child of their marriage and the copy will names her to be sole executor.  The respondents are Mrs Lemon’s daughters.  They do not oppose the application.

  1. There is evidence satisfying the procedural requirements enabling the application to be heard and determined without an oral hearing.  Submissions have been received on Mrs Lemon’s behalf.

  1. It has been accepted in Queensland that for a copy of a lost will to be admitted to probate five matters must be established.[1] 

  1. It must be shown that there was actually a will – here, the evidence of the solicitor achieves that end.  Second, it must be established that the document revoked all previous wills – on…

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AGLC
Lemon v Lemon [2014] QSC 123
Case
[2014] QSC 123
Decision Date

CaseChat Overview and Summary

The case of Lemon v Lemon involved Sheridan Lemon, who sought a solemn form grant of probate for a photocopy of her late mother's will. The original will had been lost, and Sheridan was the sole executor named in the will. The matter was heard in the Queensland District Court, where Justice Byrne had to decide whether Sheridan should be granted probate in solemn form based solely on the photocopy of the will.

The primary legal issue before the court was whether Sheridan could be granted probate in solemn form based on a photocopy of the will, given that the original had been lost. This raised questions about the admissibility of a photocopy of a will as evidence and the court's discretion in granting probate under such circumstances. The court had to consider whether the photocopy was sufficiently authenticated and whether it met the requirements for solemn form probate under the relevant legislation.

Justice Byrne concluded that the photocopy of the will was sufficiently authenticated, and the application should be granted. The court found that the photocopy was an accurate representation of the original will and that there were no grounds to doubt its authenticity. The court exercised its discretion to grant probate in solemn form, subject to the formal requirements of the Registrar, and until the original will or more authenticated evidence was produced. The court also ordered that Sheridan's costs be paid from the estate on an indemnity basis.

The orders of the court were that a grant of probate of the photocopy of the will be issued to Sheridan Lemon as the sole executor, subject to the formal requirements of the Registrar, and that her costs be paid from the estate. This decision highlights the court's willingness to grant probate in solemn form based on a photocopy of a will, provided that the copy is sufficiently authenticated and the applicant meets the necessary requirements.

Orders

Orders of the court

The order of the court is that:

1. Subject to the formal requirements of the Registrar, a grant of probate of a copy of the Will of Eunice Brealey, late of Beenleigh Nursing Home, 45 York Street, Beenleigh in the State of Queensland dated 16 June 1989 issue to Sheridan Lemon as sole executor limited until the original will or more authenticated evidence be brought into and left in the Registry.

2. That the Applicant’s costs of and incidental to this Application be paid out of the estate of Eunice Brealey on an indemnity basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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