Re Gardner (dec'd)

[2023] QSC 142

SUPREME COURT OF QUEENSLAND

CITATION:              Re Gardner (dec’d) [2023] QSC 142

PARTIES:                 IN THE WILL OF NORMAN OSWALD GARDNER

(deceased)

CHRISTINE ANNE WATKINSON

(applicant)

FILE NO:                  BS No 2736 of 2023

DIVISION:               Trial Division PROCEEDING:  Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:     28 June 2023

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, a copy of the will dated 18 January 2018 of Norman Oswald Gardner of 130 Pantlins Lane, Urraween in the State of Queensland that is Exhibit A to the affidavit in support of probate application of Christine Anne Watkinson 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 deceased made a valid will – where the original will was retained by the deceased – where copies were passed to the executor and beneficiaries – where the deceased moved residence after making the will – where the original will could not be located – whether the presumption of revocation has been rebutted – whether probate should be given on the copy will

Succession Act 1981, s 6, s 10

Uniform Civil Procedure Rules 1999, r 489

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

Re Clayton (dec’d) [1957] QWN 35, followed SOLICITORS: Willed Law Pty Ltd for the applicant

1. Christine Anne Watkinson is named as executor in what she says is the last will of Norman Oswald Gardner (Norman) who died on 3 December 2022.

1. The original cannot be located and Ms Watkinson applies for probate of a copy of the will. She seeks to have the application considered without oral hearing.

Background

1. Norman was married to Audrey Frances Mary Gardner but she predeceased him.

1. On 9 November 2005, before Audrey’s death, Norman made a will (the 2005 will).

1. By the 2005 will, Norman left the whole of his estate to Audrey but provided that in the event of her predeceasing him:

   “Specific Bequest

   I GIVE my house and land at GOLDEN SHORES 176/7 BAY DRIVE PIALBA QUEENSLAND and all my household furniture and household effects (other than motor vehicles) therein at my death to be divided as follows:-

   aAs to a 25% share to my step-son DAVID FRANK SISSONS absolutely. But is¹ this gift fails then to my wife’s grandson JASON DAVID SISSONS

   bAs to a 25% share to my…