Masih v Masih

[2021] QSC 207

SUPREME COURT OF QUEENSLAND

CITATION:

Masih v Masih [2021] QSC 207

PARTIES:

EDWIN PREMIL MASIH

(applicant)

v
EDWARD ELVIS SANJAY MASIH

(respondent)

FILE NO:

SC No 12579 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

19 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

2 June 2021

JUDGE:

Wilson J

ORDERS:

1.   The application is dismissed.

2.   The estate pay each party’s costs on the indemnity basis (as agreed or assessed) unless either party files written submissions to the contrary within seven days.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – WHEN LOST, MISLAID, DESTROYED OR NOT AVAILABLE – IN GENERAL – where a copy of the deceased’s will was found but the original could not be located – where the deceased left the original will in the safe custody of a solicitors firm in 1993 – where the firm underwent a merger in 2008 – where a safe custody card listing the deceased’s original will was located at the firm with a red line drawn through it – where the meaning of the red  line was unclear – whether the deceased had retaken possession of his original will prior to his death – whether the presumption that the deceased had destroyed the original will with the intention of revoking it arose

Cahill v Rhodes [2002] NSWSC 561, cited
Frizzo v Frizzo [2011] QSC 107, cited
Jones v Dunkel (1959) 101 CLR 298, cited
In the will of Leonie Lyle Warren deceased [2014] QSC 101, cited
Welch v Phillips (1836) 1 Moo PCC 299; 12 ER 828, cited

COUNSEL:

R J Leneham for the applicant

J A Sheean for the respondent

SOLICITORS:

Ryan Murdoch O’Regan Lawyers for the applicant
Smith & Stanton Lawyers for the respondent

The application

1. Prem Mani Masih (“the deceased”) made a will on 20 January 1993 and died on 9 April 2020.  A copy of this will exists, but the original cannot be found.  The issue before the Court is whether the deceased should be presumed to have destroyed the original will with the intention of revoking it, such that he is taken to have died intestate.

2. The applicant, Edwin Premil Masih, is the biological son of the deceased.  The applicant sought various orders, which were refined at trial to the following:

   (a)the Court declares that the deceased died intestate;

   (b)letters of administration on intestacy be granted to the applicant, subject to the formal requirements of the registrar; and

   (c)all parties’ costs be paid by the estate on the indemnity basis, as agreed or assessed.  

3. The applicant has two biological children, Edward Elvis Sanjay Masih (who is the respondent in this matter) and Edweana Elizabeth Shalini Chadwick.[1]  The deceased and his wife immigrated from Canada to Australia in 1983 with their grandchildren, while the applicant remained in Canada.  The deceased and his wife formally adopted both the respondent and Edweana when they immigrated to…