Re Fraser - [2010] QSC 208

SUPREME COURT OF QUEENSLAND

CITATION:

Re Fraser [2010] QSC 208

PARTIES:

IN THE MATTER OF THE WILL OF HUAN DONALD JOHN FRASER, DECEASED

and

IN THE MATTER OF AN APPLICATION BY STUART DONALD JOHN FRASER AND GINA MARGARET MURPHY, personal representatives of HUAN DONALD JOHN FRASER, deceased

FILE NO/S:

4691 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

27 May 2010

DELIVERED AT:

Brisbane

HEARING DATE:

27 May 2010 (reasons delivered ex tempore)

JUDGE:

Ann Lyons J

ORDER:

1.    The court pronounces for the force and validity of the last Will of Huan Donald John Fraser, deceased, late of unit 113, 501 Admiralty Two Queen Street, Brisbane in the State of Queensland, dated 22 July 2008, a copy of which Will is exhibit SF1 to the affidavit of Stuart Donald John Fraser filed on 7 May 2010 in solemn form of law;

2.    Probate of the Will dated 22 July 2008 in solemn form be granted to the deceased’s son and daughter, Stuart Donald John Fraser and Gina Margaret Murphy, named as executors and trustees in clause 3.1 of the Will, subject to any formal requirements of the Probate Registrar and subject to any outstanding compliance with the requirements of the UCPR;

3.    The plaintiffs deliver up to the Probate Registrar the original Will of Huan Donald John Fraser, deceased, dated 22 July 2008;

4.    The applicants’ costs of and incidental to the application be paid out of the estate of Huan Donald John Fraser on an indemnity basis;

5.    The costs of the application today by Ms Poulsen be paid out of the estate on an indemnity basis as part of the administration of the estate.

CATCHWORDS:

SUCCESSION – WILLS, PROBATES AND ADMINISTRATION - THE MAKING OF A WILL – REVOCATION – METHODS OF REVOCATION – DESTRUCTION OR MUTILATION OR STRIKING OUT PORTIONS – IN GENERAL - Where deceased crossed out signature on the final page of his most recent Will of 2008 and wrote the word ‘cancelled’ in front of his son – where that Will revoked all previous Wills – where the deceased indicated to family members he wished to revert to his 2006 Will – whether the 2008 Will was actually revoked – whether the 2006 Will is valid.

COUNSEL:

DA Skennar for the applicants
AB Fraser for C Poulsen

SOLICITORS:

McCarthy Palethorpe & Blanch Solicitors for the applicants
de Groots wills and estate lawyers for C Poulsen

ANN LYONS J:

By this application the applicants seek orders that:

1. the court pronounce in solemn form of law for the full force and validity of the last Will of Huan Donald John Fraser, which is dated 22 July 2008; and

2. subject to compliance with the requirements of the Uniform Civil Procedure Rules 1999 (Qld), probate of the Will dated 22 July 2008 be granted in solemn form to the executors.

Huan Fraser (the deceased) died on 18 February 2010. His last Will was executed on 22 July 2008. It is…

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 Fraser

Details

AGLC: Re Fraser [2010] QSC 208
Case: [2010] QSC 208
Decision Date: 27 May 2010

CaseChat Overview and Summary

The case of Re Fraser involved the validity of the 2008 Will of Huan Donald John Fraser, deceased. The dispute arose as to whether the 2008 Will had been effectively revoked, with the contention being that the deceased had crossed out his signature and written "cancelled" in front of his son, Stuart Donald John Fraser, on the final page of the Will. The question of whether the 2006 Will, which the deceased wished to revert to, was valid was also at issue. The matter was before the Supreme Court of Queensland.

The court needed to determine whether the 2008 Will was indeed revoked by the actions of the deceased, specifically by crossing out his signature and the addition of "cancelled". The court also had to assess whether the 2006 Will could be reinstated if the 2008 Will was found to be revoked. This involved an examination of the principles of revocation of a will, including the method of revocation by destruction or mutilation or striking out portions of the document, and the intentions of the deceased as expressed to family members.

The court found that the actions of the deceased did not constitute a valid revocation of the 2008 Will. It was noted that while the deceased had written "cancelled" in front of his son, there was no clear indication that the deceased intended to revoke the Will. The court emphasised that revocation by mutilation must be clear and unequivocal, and that the deceased's intention to revoke must be evident from the document itself or from other reliable evidence. The court also held that the evidence did not support the claim that the deceased intended to revert to his 2006 Will.

Accordingly, the court ruled in favour of the validity of the 2008 Will and granted probate to the named executors, Stuart Donald John Fraser and Gina Margaret Murphy. The court further ordered that the original Will be delivered to the Probate Registrar and that the costs of the application be paid out of the estate.

Orders

Orders of the court

1. The court pronounces for the force and validity of the last Will of Huan Donald John Fraser, deceased, late of unit 113, 501 Admiralty Two Queen Street, Brisbane in the State of Queensland, dated 22 July 2008, a copy of which Will is exhibit SF1 to the affidavit of Stuart Donald John Fraser filed on 7 May 2010 in solemn form of law;

2. Probate of the Will dated 22 July 2008 in solemn form be granted to the deceased’s son and daughter, Stuart Donald John Fraser and Gina Margaret Murphy, named as executors and trustees in clause 3.1 of the Will, subject to any formal requirements of the Probate Registrar and subject to any outstanding compliance with the requirements of the UCPR;

3. The plaintiffs deliver up to the Probate Registrar the original Will of Huan Donald John Fraser, deceased, dated 22 July 2008;

4. The applicants’ costs of and incidental to the application be paid out of the estate of Huan Donald John Fraser on an indemnity basis;

5. The costs of the application today by Ms Poulsen be paid out of the estate on an indemnity basis as part of the administration of the estate.

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 Fraser [2010] QSC 208
PARTIES:	IN THE MATTER OF THE WILL OF HUAN DONALD JOHN FRASER, DECEASED and IN THE MATTER OF AN APPLICATION BY STUART DONALD JOHN FRASER AND GINA MARGARET MURPHY, personal representatives of HUAN DONALD JOHN FRASER, deceased
FILE NO/S:	4691 of 2010
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	27 May 2010
DELIVERED AT:	Brisbane
HEARING DATE:	27 May 2010 (reasons delivered ex tempore)
JUDGE:	Ann Lyons J
ORDER:	1. The court pronounces for the force and validity of the last Will of Huan Donald John Fraser, deceased, late of unit 113, 501 Admiralty Two Queen Street, Brisbane in the State of Queensland, dated 22 July 2008, a copy of which Will is exhibit SF1 to the affidavit of Stuart Donald John Fraser filed on 7 May 2010 in solemn form of law; 2. Probate of the Will dated 22 July 2008 in solemn form be granted to the deceased’s son and daughter, Stuart Donald John Fraser and Gina Margaret Murphy, named as executors and trustees in clause 3.1 of the Will, subject to any formal requirements of the Probate Registrar and subject to any outstanding compliance with the requirements of the UCPR; 3. The plaintiffs deliver up to the Probate Registrar the original Will of Huan Donald John Fraser, deceased, dated 22 July 2008; 4. The applicants’ costs of and incidental to the application be paid out of the estate of Huan Donald John Fraser on an indemnity basis; 5. The costs of the application today by Ms Poulsen be paid out of the estate on an indemnity basis as part of the administration of the estate.
CATCHWORDS:	SUCCESSION – WILLS, PROBATES AND ADMINISTRATION - THE MAKING OF A WILL – REVOCATION – METHODS OF REVOCATION – DESTRUCTION OR MUTILATION OR STRIKING OUT PORTIONS – IN GENERAL - Where deceased crossed out signature on the final page of his most recent Will of 2008 and wrote the word ‘cancelled’ in front of his son – where that Will revoked all previous Wills – where the deceased indicated to family members he wished to revert to his 2006 Will – whether the 2008 Will was actually revoked – whether the 2006 Will is valid.
COUNSEL:	DA Skennar for the applicants AB Fraser for C Poulsen
SOLICITORS:	McCarthy Palethorpe & Blanch Solicitors for the applicants de Groots wills and estate lawyers for C Poulsen