Re Hay (dec'd)

Case [2023] QSC 146

SUPREME COURT OF QUEENSLAND

CITATION:

Re Hay (dec’d) [2023] QSC 146

PARTIES:

IN THE WILL OF DONALD ROY HAY

(deceased)

AILSA FRANCES HAY

(applicant)

FILE NO:

BS No 7611 of 2023

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 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, the photocopy of the will dated 7 August 2013 of Donald Roy Hay late of St Vincent’s Care Centre, 141 Fursden Road, Carina in the State of Queensland, that is exhibit “A” to the affidavit in support of probate application of Ailsa Frances Hay affirmed 19 May 2023, 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 LETTERS OF ADMINISTRATION – PROBATE OF LOST WILL – where the deceased made a valid will – where the original will was retained by the solicitors who prepared it – where the solicitors had safe custody procedures – where the safe custody records showed the document was held in safe custody and not released – where the will was not physically in safe custody of the solicitors after the death of the deceased – where the evidence led to a conclusion that the will was not collected by the deceased or his wife – where the inference is that the will was lost in the solicitors’ office – whether probate should be granted of the copy will

Succession Act 1981, s 6, s 10
Uniform Civil Procedure Rules 1999, s 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:

DBL Solicitors for the applicant

  1. Ailsa Frances Hay (Ailsa) is the widow of Donald Roy Hay (Donald).  Ailsa is the executor and trustee named in Donald’s will.

  2. The original of Donald’s will cannot be found.

  3. Ailsa applies for probate of a copy of Donald’s will.  She also applies for the application to be determined without oral hearing.

    Background

  4. Donald and Ailsa were married for about 22 years.

  5. In 2013, Donald and Ailsa retained O’Reilly Lillicrap,[1] a well-known firm of solicitors practising in the eastern suburbs of Brisbane, to prepare wills and enduring powers of attorney for them both.

    [1]        Now called “DBL Solicitors”.

  6. The wills and enduring powers of attorney were prepared by Mark Lillicrap, Solicitor and a principal of O’Reilly Lillicrap.

  7. On 7 August 2013, Donald and…

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Details
AGLC
Re Hay (dec'd) [2023] QSC 146
Case
[2023] QSC 146
Decision Date

CaseChat Overview and Summary

The case of Re Hay (dec'd) involved Ailsa's application for probate of a copy of Donald's will. The original will had been retained by O'Reilly Lillicrap, a firm of solicitors who had prepared it. The key dispute was whether the court should grant probate of the copy will as the original was missing and presumed lost in the solicitors' custody. The matter was heard in the Queensland Supreme Court.

The legal issues before the court were whether the application should proceed without an oral hearing and if the copy will should be admitted to probate. The court had to consider the criteria for admitting a copy will to probate, including the presumption that a lost will was revoked by the testator, and whether this presumption had been overcome by Ailsa. The court also needed to determine if the copy will satisfied the requirements for admission to probate, including evidence of the will's terms and its execution.

The court concluded that the application could proceed without an oral hearing as there were no exceptional circumstances that would necessitate a hearing. It found that Ailsa had satisfied the criteria for admitting the copy will to probate. The court accepted that the copy will embodied Donald's testamentary intentions, revoked previous wills, and was duly executed. It also found that Ailsa had overcome the presumption that the lost will was revoked by Donald, based on the evidence presented. Consequently, the court granted probate of the copy will.

In summary, the court determined that Ailsa's application for probate of the copy will could proceed without an oral hearing and that the copy will met the requirements for admission to probate. The court issued orders accordingly, admitting the copy will to probate 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, the photocopy of the will dated 7 August 2013 of Donald Roy Hay late of St Vincent’s Care Centre, 141 Fursden Road, Carina in the State of Queensland, that is exhibit “A” to the affidavit in support of probate application of Ailsa Frances Hay affirmed 19 May 2023, 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

Ailsa applies for probate of a copy of Donald’s will. She also applies for the application to be determined without oral hearing.Background Donald and Ailsa were married for about 22 years. In 2013, Donald and Ailsa retained O’Reilly Lillicrap,[1] a well-known firm of solicitors practising in the eastern suburbs of Brisbane, to prepare wills and enduring powers of attorney for them both.[1] Now called “DBL Solicitors”. The wills and enduring powers of attorney were prepared by Mark Lillicrap, Solicitor and a principal of O’Reilly Lillicrap. On 7 August 2013, Donald and Ailsa attended upon Mr Lillicrap at the firm’s Morningside office and the wills and enduring powers of attorney were executed. Donald and Ailsa received copies of the documents but instructed Mr Lillicrap to retain the originals. Solicitors are often entrusted with custody of important documents and they must establish systems for their security. O’Reilly Lillicrap had such systems. Mr Lillicrap handed the documents to his assistant, Ms Lisa Tait. Ms Tait followed the firm’s protocols and:1.she took photocopies of the documents;2.she scanned copies to an electronic file;3.she placed the original documents in a plastic sleeve in the file;4.she prepared “safe custody instructions” for another staff member to enter the documents into the firm’s safe custody holdings. The firm’s procedure for lodging and keeping the documents is:1.they are placed in a safe custody envelope;2.the envelope is bar coded;3.the envelope is then stored on-site at one of the firm’s offices or off-site with an entrusted contractor;4.a security register is kept electronically which tracks the documents. Ms Tait’s instructions ought to have caused the documents, including Donald’s will, to be received into the firm’s safe custody holdings. Donald’s will:1.revokes all previous testamentary instruments;2.appoints Ailsa as executor and trustee;3.leaves the estate (after payment of expenses) to Ailsa provided she survives him;4.in the event Ailsa does not survive Donald, the estate falls to Donald’s three children and if they do not survive him, then to their children. On 6 April 2016, Dr Roger Egerton, a doctor in general practice in Morningside who had treated Donald for many years, provided a report where he opined that Donald was suffering from Alzheimer’s dementia and “no longer has capacity to make decisions regarding his care and lacks capacity to sign legal documents”. There are ethical obligations upon solicitors to take steps to ensure that instructions are not taken from clients to prepare testamentary instruments where the clients lack capacity. Mr Lillicrap is an experienced solicitor and he swears in his affidavit that he satisfied himself as to Donald’s capacity to make the will. The death certificate identifies cause of death as “Alzheimer’s disease” and “vascular cerebral insufficiency” and has both those conditions as being suffered by Donald for eight years, which calculates to 2014.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Ailsa seeks to have the application determined without oral hearing. Rule 489 of the Uniform Civil Procedure Rules 1999 (UCPR) provides for such a procedure:“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:1.jurisdiction to proceed without oral hearing is granted;2.the jurisdiction is enlivened by a proposal by an applicant;3.the proposal must be accepted in the absence of the features in r 489(2)(a)-(d). The Succession Act 1981 grants jurisdiction to the Court over matters of succession,[2] but there is no provision expressly empowering the Court to grant probate to a copy of a will.[3] There is though no doubt that the Court has jurisdiction to grant probate of a copy of a will.[4] The power is sourced from the common law.[5][2] Succession Act 1981, s 6.[3] In the will of Dianne Margaret Cardie [2013] QSC 265 at [16]-[19].[4] Re Clayton (dec’d) [1957] QWN 35, In the will of Leonie Lyle Warren deceased [2014] QSC 101.[5] In the will of Dianne Margaret Cardie [2013] QSC 265 at [16]-[19]. In Frizzo v Frizzo,[6] Applegarth J followed Cahill v Rhodes[7] and held that five matters must be established for a successful application for the admission to probate of a copy will.[8] These are:1.there was actually a will or a document purporting to embody the testamentary intentions of a deceased person (factor 1);2.that will or document revoked all previous wills (factor 2);3.the applicant overcomes the presumption[9] that if the will cannot be produced to the Court, it was destroyed by the testator with the intention of revoking it (factor 3);4.there is evidence of the terms of the will (factor 4); and5.the will was duly executed or that the deceased person intended the document to constitute his or her will (factor 5).Consideration[6] [2011] QSC 107.[7] [2002] NSWSC 561.[8] Frizzo v Frizzo [2011] QSC 107 at [161]. See also In the Will of Leonie Lyle Warren deceased [2014] QSC 101 at [8].[9] See Allan v Morrison [1900] AC 604; In the Will of Leonie Lyle Warren deceased [2014] QSC 101 at [11].Should the application be determined without oral hearing? None of the circumstances prescribed by ss 489(2)(b) or (c) or (d) arise. The only question is whether there is some reason why it is inappropriate for the Court to proceed without oral hearing.[10][10] Uniform Civil Procedure Rules 1999, r 489(2)(a). There is no doubt that Donald’s will was left with O’Reilly Lillicrap after it was executed. Evidence of its fate from that point can only logically come from the records of the firm and from deponents who have searched within the firm for the will. All that evidence has been carefully marshalled. None of it appears to be contentious.

Ratio Decidendi

Legal Principle Established

In Frizzo v Frizzo,[6] Applegarth J followed Cahill v Rhodes[7] and held that five matters must be established for a successful application for the admission to probate of a copy will.[8] These are:1.there was actually a will or a document purporting to embody the testamentary intentions of a deceased person (factor 1);2.that will or document revoked all previous wills (factor 2);3.the applicant overcomes the presumption[9] that if the will cannot be produced to the Court, it was destroyed by the testator with the intention of revoking it (factor 3);4.there is evidence of the terms of the will (factor 4); and5.the will was duly executed or that the deceased person intended the document to constitute his or her will (factor 5).Consideration[6] [2011] QSC 107.[7] [2002] NSWSC 561.[8] Frizzo v Frizzo [2011] QSC 107 at [161]. See also In the Will of Leonie Lyle Warren deceased [2014] QSC 101 at [8].[9] See Allan v Morrison [1900] AC 604; In the Will of Leonie Lyle Warren deceased [2014] QSC 101 at [11].Should the application be determined without oral hearing? None of the circumstances prescribed by ss 489(2)(b) or (c) or (d) arise. The only question is whether there is some reason why it is inappropriate for the Court to proceed without oral hearing.[10][10] Uniform Civil Procedure Rules 1999, r 489(2)(a). There is no doubt that Donald’s will was left with O’Reilly Lillicrap after it was executed. Evidence of its fate from that point can only logically come from the records of the firm and from deponents who have searched within the firm for the will. All that evidence has been carefully marshalled. None of it appears to be contentious. The application for probate was, as previously observed, advertised. The number of persons who might be interested in the grant of probate of Donald’s will would limited. Ailsa’s application for probate of the copy will does not give rise to any novel questions of law. In all the circumstances, it is appropriate to deal with the matter without oral hearing and I intend to do so.Should probate be given on the copy will? It is clear:1.Donald’s will purports to embody his testamentary intentions;[11]2.Donald’s will revoked all previous wills;[12]3.the terms of Donald’s will are evident from its face. There is no suggestion of any additional terms or any associated testamentary documents;[13]4.Donald’s will is duly executed. That is obvious on its face.[14][11] Factor 1 as identified in paragraph [26] of these reasons.[12] Factor 2 as identified in paragraph [26] of these reasons.[13] Factor 4 as identified in paragraph [26] of these reasons.[14] Succession Act 1981, s 10; factor 5 as identified in paragraph [26] of these reasons. As earlier observed,[15] there is a presumption that as the original of Donald’s will cannot be produced to the Court, it was destroyed by him with the intention of revoking it.[16] The only real issue is whether Ailsa has overcome the presumption.[15] Paragraph [25] of these reasons.[16] Factor 3 as identified in paragraph [26] of these reasons.