Re Hay (deceased)

[2025] QSC 202

SUPREME COURT OF QUEENSLAND

CITATION:

Re Hay (deceased) [2025] QSC 202

PARTIES:

IN THE WILL OF CONSTANCE HAY
(deceased)

SUSAN JENNIFER HAY
(applicant)

FILE NO:

SE07832 of 2025

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

20 August 2025

DELIVERED AT:

Brisbane

HEARING DATE:

Application on the papers

JUDGE:

Sullivan J

ORDER:

1.        A grant of probate of the will of the deceased Constance Hay, dated 22 May 1998, as contained in a copy which is exhibited to the affidavit of Susan Jennifer Hay sworn 19 May 2025 and filed 26 June 2025, be issued to Susan Jennifer Hay, as the executor, subject to the formal requirements of the Registrar, limited until the original will or more authenticated evidence be brought into and left in the registry. 

2.         The deceased, Constance Hay, pay the costs of the executor, Susan Jennifer Hay, of the application.

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 applicant took possession of the deceased’s original Will on an unidentified date – where the original Will cannot be located – where there is a photocopy of the original Will – whether the copy can allow for admission to probate.

Price v Tickle [2013] 1 Qd R 236

SOLICITORS:

Duffy Lawyers for the applicant.

1. I have before me an application on the papers seeking for the copy of the last will and testament of the deceased, Constance Hay, dated 22 May 1998 to be proved for the application for a grant of probate with copy of will annexed.  The will has been lost in this case. 

2. The deceased passed away on 8 January 2025, leaving three children, of which Susan Jennifer Hay is the youngest.  She has deposed in the affidavit material of having taken possession on an unidentified date of an original will of the deceased which was dated 22 May 1998.  Ms Hay resides in California, it would seem, and has deposed to having placed it in her filing cabinet, but now being unable to locate the original of the will. 

3. A copy of the will has been exhibited to the affidavit material and identifies that in the event of the deceased’s husband predeceasing her, which I note in this case has occurred, Ms Hay is to be appointed executor and hold the estate on trust for such of her children as survive her.  The three children named in the will are the same three children named in the death certificate of the deceased.  Whilst there is no affidavit material that they have been served, I am satisfied that they will not be prejudiced if I make the requisite order as they will take in the same way that they would have taken in an intestacy. 

4. The relevant decision of Price v Tickle [2013] 1 Qd R 236 at [26] per McMeekin J sets out the criteria that needs to be satisfied in order for there to be a grant of probate of lost will. They are as follows:

   ·there actually was a will; 

   ·that the will revoked all other previous wills; 

   ·the presumption that when a will is not produced it has been destroyed, has been overcome; 

   ·there must be evidence of the will’s terms; and

   ·there must be evidence of the will’s execution.

5. I am satisfied that each of those five criteria are met here.  I have an affidavit sworn by Ms Hay who exhibits the last will and testament.  I am satisfied, therefore, there was a will. 

6. Secondly, I am satisfied that it revoked all previous wills, as term 1 of that copy of the will states this. 

7. Thirdly, I am satisfied that the presumption that when a will is not produced it has been destroyed has been overcome.  I am satisfied of this in circumstances where Ms Hay has deposed to having retrieved the original will from her mother’s cabinet and placing it in her cabinet.  The loss of the original will, therefore, has occurred as a result of the conduct of Ms Hay and she has deposed to this.  Accordingly, the presumption is rebutted. 

8. Fourthly, there must be evidence of the will’s terms.  The copy of the will before me is complete in all respects. 

9. And finally, there must be evidence of the will’s execution.  There is evidence of the execution by Ms Hay and also the witnessing of the will.  The will in all respects seems to be a complete will and on its face, it is one which is logical.  Ms Hay has also deposed, in the usual terms, of stating to the best of her belief that the deceased had capacity at the time she executed the will.  The will is of some age and is logical on its face and accordingly, I am satisfied that capacity likely existed at the time of its execution.

10. Accordingly then, having been satisfied of the matters set out above, it is appropriate I make the orders to admit a copy to probate on the usual basis, that is, until the original will or more authenticated evidence of it be brought and left in the registry.  Therefore, the order will be:

    1.   A grant of probate of the will of the deceased Constance Hay, dated 22 May 1998, as contained in a copy which is exhibited to the affidavit of Susan Jennifer Hay sworn 19 May 2025 and filed 26 June 2025, be issued to Susan Jennifer Hay, as the executor, subject to the formal requirements of the Registrar, limited until the original will or more authenticated evidence be brought into and left in the registry.

    2.   The deceased, Constance Hay, pay the costs of the executor, Susan Jennifer Hay, of the application.