Re Fawkes - [2020] QSC 200

SUPREME COURT OF QUEENSLAND

CITATION:

Re Fawkes [2020] QSC 200

PARTIES:

In the will of JOAN FAWKES, deceased

FILE NO:

BS No 6368 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application on the papers

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

Orders made 26 June 2020, reasons delivered on 15 July 2020

DELIVERED AT:

Brisbane

HEARING DATE:

Application determined without oral hearing

JUDGE:

Davis J

ORDERS:

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

2. Subject to the formal requirements of the Registrar, the photocopy of the will of Joan Fawkes of Emmaus Village Aged Care, 930 Gympie Road, Chermside, Queensland, that is exhibit A to the affidavit of Noel Eric Fawkes and Glen McAleese filed on 15 June 2020, be admitted to probate until the original will or more authenticated evidence be brought into and left in the Registry.

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 original of the will of the deceased cannot be located – where the original was held by the deceased or by the solicitors that prepared the will – where a liquidator has been appointed to the firm of solicitors that prepared the will – where there is no doubt the will existed – where there are copies of the will available – where the will revoked all previous wills – where there is no evidence of any intention by the testator to revoke the will – whether it is appropriate to grant probate to a copy of the will

Uniform Civil Procedure Rules 1999, r 489

Allan v Morrison [1900] AC 604, cited
Cahill v Rhodes [2002] NSWSC 561, cited

Frizzo v Frizzo [2011] QSC 107, followed

In the will of Leonie Lyle Warren deceased [2014] QSC 101, cited

SOLICITORS:

McInnes Wilson Lawyers for the applicants

The applicants, Noel Eric Fawkes and Glen McAleese, are the executors and trustees named in the will of Joan Fawkes (now deceased) dated 2 September 2014 (the will).
Mr Fawkes and Mr McAleese cannot locate the original will and applied for probate on a photocopy of the will. They sought to have the application determined without oral hearing pursuant to r 489(1) of the Uniform Civil Procedure Rules 1999.
On 26 June 2020, I made the following orders:
1. Pursuant to r 489(1) of the Uniform Civil Procedure Rules 1999 (Qld), this application proceed without an oral hearing.
2. Subject to the formal requirements of the Registrar, the photocopy of the will of Joan Fawkes of Emmaus Village Aged Care, 930 Gympie Road, Chermside, Queensland, that is exhibit A to the affidavit of Noel Eric Fawkes and Glen McAleese filed on 15 June 2020, be admitted to probate until the original will or more authenticated evidence be brought into and left in…

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.

Continue reading Re Fawkes

Details

AGLC: Re Fawkes [2020] QSC 200
Case: [2020] QSC 200
Decision Date: 15 July 2020

CaseChat Overview and Summary

The application in the matter of Re Fawkes involved a dispute over the probate of a will. The applicant, Noel Eric Fawkes, sought the probate of a copy of his mother's will. The deceased, Joan Fawkes, had passed away, and the original will could not be located. The legal issues revolved around whether it was appropriate to grant probate to a copy of the will when the original could not be found and whether the copy was an accurate representation of the deceased's wishes.

The court had to determine whether it was appropriate to grant probate to a copy of the will when the original could not be located. The court noted that the original will had been in the possession of the deceased or the solicitors who prepared it, and a liquidator had been appointed to the firm of solicitors. However, there was no doubt that the will existed, and copies of the will were available. The court also considered that the will had revoked all previous wills and that there was no evidence of any intention by the deceased to revoke the will.

The court concluded that it was appropriate to grant probate to the copy of the will. The court noted that the circumstances of the case were exceptional, and the copy of the will was an accurate representation of the deceased's wishes. The court further noted that the copy of the will was admissible as evidence and that there was no reason to doubt its authenticity. The court therefore ordered that the copy of the will be admitted to probate until the original will or more authenticated evidence be brought into and left in the Registry. The application proceeded without an oral hearing, and the formal requirements of the Registrar were satisfied.

Orders

Orders of the court

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

2. Subject to the formal requirements of the Registrar, the photocopy of the will of Joan Fawkes of Emmaus Village Aged Care, 930 Gympie Road, Chermside, Queensland, that is exhibit A to the affidavit of Noel Eric Fawkes and Glen McAleese filed on 15 June 2020, be admitted to probate until the original will or more authenticated evidence be brought into and left in the Registry.

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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CITATION:	Re Fawkes [2020] QSC 200
PARTIES:	In the will of JOAN FAWKES, deceased
FILE NO:	BS No 6368 of 2020
DIVISION:	Trial Division
PROCEEDING:	Application on the papers
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	Orders made 26 June 2020, reasons delivered on 15 July 2020
DELIVERED AT:	Brisbane
HEARING DATE:	Application determined without oral hearing
JUDGE:	Davis J
ORDERS:	1. Pursuant to r 489(1) of the *Uniform Civil Procedure Rules 1999* (Qld), this application proceed without an oral hearing. 2. Subject to the formal requirements of the Registrar, the photocopy of the will of Joan Fawkes of Emmaus Village Aged Care, 930 Gympie Road, Chermside, Queensland, that is exhibit A to the affidavit of Noel Eric Fawkes and Glen McAleese filed on 15 June 2020, be admitted to probate until the original will or more authenticated evidence be brought into and left in the Registry.
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 original of the will of the deceased cannot be located – where the original was held by the deceased or by the solicitors that prepared the will – where a liquidator has been appointed to the firm of solicitors that prepared the will – where there is no doubt the will existed – where there are copies of the will available – where the will revoked all previous wills – where there is no evidence of any intention by the testator to revoke the will – whether it is appropriate to grant probate to a copy of the will Uniform Civil Procedure Rules 1999, r 489 Allan v Morrison [1900] AC 604, cited Cahill v Rhodes [2002] NSWSC 561, cited Frizzo v Frizzo [2011] QSC 107, followed In the will of Leonie Lyle Warren deceased [2014] QSC 101, cited
SOLICITORS:	McInnes Wilson Lawyers for the applicants