Re Dart (deceased)

Case [2025] QSC 191

SUPREME COURT OF QUEENSLAND

CITATION:

Re Dart (deceased) [2025] QSC 191

PARTIES:

IN THE WILL OF SHIRLEY LYNETTE DART

(deceased)

TONI LEE ALLEN

(applicant)

FILE NO:

SE 5707 of 2025

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

19 August 2025

DELIVERED AT:

Brisbane

HEARING DATE:

Application on the papers

JUDGE:

Davis J

ORDERS:

1. Pursuant to r 489(1) of the Uniform Civil Procedure Rules 1999 (Qld), this application is to proceed without an oral hearing.

2.    Subject to the formal requirements of the Registrar, letters of administration upon intestacy for the estate of Shirley Lynette Dart (deceased) be granted to the applicant Toni Lee Allen as administrator.
CATCHWORDS:

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – LIMITED, SPECIAL AND CONDITIONAL GRANTS OF PROBATE AND ADMINISTRATION – where the deceased made a will – where the deceased was married and had two children – where the will left her estate to her husband unless he predeceased her and then to her two children – where both the deceased’s husband and one of the children predeceased her – where the original will was, after its execution, retained by the deceased – where upon the death of the deceased the original will could not be located – where the surviving child was estranged from the deceased for a period prior to the deceased’s death – where the surviving child accepts she cannot overcome the presumption of revocation of the will – where the surviving child made application for letters of administration in intestacy – where the surviving child has priority to letters of administration – whether letters of administration of the will ought to be granted to the surviving child

Succession Act1981 (Qld), s 35, s 36A
Uniform Civil Procedure Rules 1999 (Qld), r 489, r 494, r 495, r 610

Allan v Morrison [1900] AC 604, followed
Cahill v Rhodes [2002] NSWSC 561, followed
Frizzo v Frizzo[2011] QSC 107, followed

In the will of Dianne Margaret Cardie [2013] QSC 265, followed
In the will of Leonie Lyle Warren deceased [2014] QSC 101, followed

COUNSEL:

Written submissions for the applicant prepared by D J Morgan

SOLICITORS:

Lacey Lawyers for the applicant

  1. This is an application by Toni Lee Allen for letters of administration upon intestacy of the estate of her deceased mother, Shirley Lynette Dart,[1] who died on 10 November 2024.

    [1]For convenience, but with no disrespect intended, I shall refer to all persons by their Christian names.

  2. Shirley was married to Geoffrey Kingston Dart.  He died on 18 December 2012.

  3. Shirley had two children, Toni and a son, Craig Andrew, by a relationship other than with Geoffrey.  Craig predeceased Shirley.

  4. On 24 February 2003, Shirley made a will.  By that will she appointed Geoffrey as executor and trustee but in default of that appointment she appointed Toni and Steven Anthony Allen.  There is no direct evidence as to the…

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AGLC
Re Dart (deceased) [2025] QSC 191
Case
[2025] QSC 191
Decision Date

CaseChat Overview and Summary

The matter of Re Dart (deceased) involved the deceased, Shirley, who had executed a will in 2003 leaving her estate to her husband, Geoffrey, with a contingent remainder to her children, Toni and Craig. Both Geoffrey and Craig predeceased Shirley, leaving Toni as the sole beneficiary under the will. Upon Shirley's death, the original will could not be located, leading to a dispute over the administration of her estate. Toni, the surviving child, acknowledged that she could not overcome the presumption of revocation of the will and applied for letters of administration in intestacy.

The primary legal issue before the court was whether letters of administration of the will should be granted to Toni despite the absence of the original will. The court needed to determine if the will had been revoked by Shirley and, if so, whether Toni could be granted letters of administration of the estate in intestacy. The court also considered the applicability of Rule 489 of the Uniform Civil Procedure Rules 1999 (Qld), which allows for decisions without an oral hearing under certain conditions.

The court found that proceeding without an oral hearing was appropriate as there were no respondents requiring an oral hearing, Toni had not abandoned the request for a decision without an oral hearing, and the Chief Justice had not suspended the operation of Rule 489. The court examined the five factors necessary for admitting a copy of a will to probate as outlined in Frizzo v Frizzo. While factors 1, 2, 4, and 5 were satisfied, Toni could not overcome the presumption that Shirley destroyed the will with the intention of revoking it. Consequently, the court concluded that Shirley died intestate. Under Rule 610 of the Uniform Civil Procedure Rules 1999, the order of priority for letters of administration upon intestacy placed Toni as the next of kin with priority to administer the estate.

The court granted letters of administration upon intestacy to Toni Lee Allen as the administrator of Shirley Lynette Dart's estate, subject to the formal requirements of the Registrar.

Orders

Orders of the court

1. Pursuant to r 489(1) of the Uniform Civil Procedure Rules 1999 (Qld), this application is to proceed without an oral hearing.

2. Subject to the formal requirements of the Registrar, letters of administration upon intestacy for the estate of Shirley Lynette Dart (deceased) be granted to the applicant Toni Lee Allen as administrator.

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

Rule 489 of the Uniform Civil Procedure Rules 1999 (Qld) provides for decisions without an oral hearing of an application:“489 Proposal for decision without oral hearing(1)A party making an application, including an application in a proceeding, may propose in the application that it be decided without an oral hearing.(2)If the applicant proposes the application be decided without an oral hearing, the court must decide the application without an oral hearing unless—(a) under rule 491, the court considers it inappropriate to do so; or(b) under rule 494, the respondent requires an oral hearing; or(c) under rule 495, the applicant abandons the request for a decision without an oral hearing; or(d) the Chief Justice or Chief Judge suspends the operation of this rule by direction.” The structure of r 489 is that:(a)jurisdiction to proceed without an oral hearing is granted;(b)that jurisdiction is enlivened by a proposal by an applicant; and(c)the proposal must be accepted by the Court in the absence of any of the circumstances prescribed in rr 489(2)(a)-(d). Here:(a)there are no respondents to the application and therefore no respondent who requires an oral hearing;[2](b)Toni has not abandoned the request for a decision without an oral hearing;[3] and(c)the Chief Justice has not suspended the operation of r 489 by direction.[4][2]Uniform Civil Procedure Rules 1999, rr 494 and 489(2)(b).[3]Uniform Civil Procedure Rules 1999, rr 495 and 489(2)(c).[4]Uniform Civil Procedure Rules 1999, r 489(2)(d). Consequently, the only question is whether it is inappropriate to proceed without oral hearing.[5][5]Uniform Civil Procedure Rules 1999, r 489(2)(a). There are two possibilities. The first is that the 2003 will was not revoked by Shirley and, therefore, a copy of that will should be admitted to probate. The second alternative is that Shirley destroyed the will with the intention of revoking it and she has died intestate. There is no suggestion that the 2003 will was not valid, so it served to revoke all prior testamentary instruments, whether or not it was then itself revoked. Upon the death of Geoffrey, Toni became the sole beneficiary under the 2003 will. As Craig died without issue, Toni would take the entirety of Shirley’s estate under the rules of intestacy.[6] Therefore, Toni is the only person interested in Shirley’s estate. There are no facts seriously in issue. The principles of law concerning the grant of probate of a copy of a will are well established and do not, for reasons which later appear, require any analysis. It is appropriate to deal with the application without oral hearing.[6]Succession Act 1981, s 35, s 36A, sch 2.Should there be a grant of letters of administration upon intestacy? The original of the will is not available. A copy of a will can be admitted to probate. In Frizzo v Frizzo,[7] Applegarth J followed Cahill v Rhodes[8] and held that five matters must be established for a successful application for the admission to probate of a copy will.[9] These are:(a)there was actually a will or a document purporting to embody the testamentary intentions of the deceased person (factor 1);(b)that will or document revoked all previous wills (factor 2);(c)the applicant must overcome the presumption[10] that if the will cannot be produced to the Court, it was destroyed by the testator with the intention of revoking it (factor 3);(d)there is evidence of the terms of the will (factor 4); and(e)the will was duly executed or that the deceased person intended the document to constitute his or her will (factor 5).[7][2011] QSC 107.[8][2002] NSWSC 561.[9]Frizzo v Frizzo [2011] QSC 107 at [161]. See also In the Will of Leonie Lyle Warren deceased [2014] QSC 101 at [8].[10]See Allan v Morrison [1900] AC 604; In the Will of Leonie Lyle Warren deceased [2014] QSC 101 at [11].

Ratio Decidendi

Legal Principle Established

There are two possibilities. The first is that the 2003 will was not revoked by Shirley and, therefore, a copy of that will should be admitted to probate. The second alternative is that Shirley destroyed the will with the intention of revoking it and she has died intestate. There is no suggestion that the 2003 will was not valid, so it served to revoke all prior testamentary instruments, whether or not it was then itself revoked. Upon the death of Geoffrey, Toni became the sole beneficiary under the 2003 will. As Craig died without issue, Toni would take the entirety of Shirley’s estate under the rules of intestacy.[6] Therefore, Toni is the only person interested in Shirley’s estate. There are no facts seriously in issue. The principles of law concerning the grant of probate of a copy of a will are well established and do not, for reasons which later appear, require any analysis. It is appropriate to deal with the application without oral hearing.[6]Succession Act 1981, s 35, s 36A, sch 2.Should there be a grant of letters of administration upon intestacy? The original of the will is not available. A copy of a will can be admitted to probate. In Frizzo v Frizzo,[7] Applegarth J followed Cahill v Rhodes[8] and held that five matters must be established for a successful application for the admission to probate of a copy will.[9] These are:(a)there was actually a will or a document purporting to embody the testamentary intentions of the deceased person (factor 1);(b)that will or document revoked all previous wills (factor 2);(c)the applicant must overcome the presumption[10] that if the will cannot be produced to the Court, it was destroyed by the testator with the intention of revoking it (factor 3);(d)there is evidence of the terms of the will (factor 4); and(e)the will was duly executed or that the deceased person intended the document to constitute his or her will (factor 5).[7][2011] QSC 107.[8][2002] NSWSC 561.[9]Frizzo v Frizzo [2011] QSC 107 at [161]. See also In the Will of Leonie Lyle Warren deceased [2014] QSC 101 at [8].[10]See Allan v Morrison [1900] AC 604; In the Will of Leonie Lyle Warren deceased [2014] QSC 101 at [11]. Factors 1, 2, 4 and 5 are satisfied here. A copy of the will is available. Its terms can be discerned and it is validly executed. The difficulty with admitting a copy of the 2003 will to probate is that Toni cannot overcome the presumption described above as factor 3. The evidence is that the will was last in the possession of Shirley. There is no evidence at all as to what happened to it. If anything, it might be thought that Shirley did destroy the will as she was estranged from Toni for a number of years. Toni does not assert that she can overcome the presumption and in my view, that concession is a correct one. Shirley has, therefore, died intestate. Rule 610 of the Uniform Civil Procedure Rules1999 provides for the order of priority of applicants for letters of administration upon intestacy. Rule 610(1) provides:“(1) The descending order of priority of persons to whom the court may grant letters of administration on intestacy is as follows— (a) the deceased’s surviving spouse; (b) the deceased’s children; (c) the deceased’s grandchildren or great-grandchildren; (d) the deceased’s parent or parents; (e) the deceased’s brothers and sisters; (f) the children of deceased brothers and sisters of the deceased; (g) the deceased’s grandparent or grandparents; (h) the deceased’s uncles and aunts; (i) the deceased’s first cousins; (j) anyone else the court may appoint. …”