Re Kelly - [2014] QSC 283

SUPREME COURT OF QUEENSLAND

CITATION:

Re Kelly [2014] QSC 283

PARTIES:

IN THE WILL of JOYCE DOUGLAS MILDRED KELLY (deceased)

FILE NO/S:

BS9469/14

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

4 December 2014

DELIVERED AT:

Brisbane

HEARING DATE:

21 October 2014

JUDGE:

Alan Wilson J

ORDER:

Application dismissed.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – WHEN LOST, MISLAID, DESTROYED OR NOT AVAILABLE – GENERALLY – where the deceased’s original last will cannot be located – where the applicant, the deceased’s daughter, is named as executor in a copy of that original last will – where the applicant has also located a draft version of the original last will – where the applicant applies for a determination that the copy is the deceased’s last valid will under s 18 of the Succession Act 1981 (Qld) – whether a determination of that type should be made in circumstances where the original will is missing

Succession Act 1981 (Qld), s 10, s 18
Uniform Civil Procedure Rules 1999 (Qld), r 597, r 602

Re Cardie [2013] QSC 265, cited
Re Colassin [2012] QSC 155, cited
Re Gindrod (deceased) [2014] QSC 158, cited
Re Henderson [1996] 1 Qd R 249, cited
Re Masters (1994) 33 NSWLR 446, cited
McCauley v McCauley (1910) 10 CLR 434, cited
Proctor v Klauke & Ors [2011] QSC 425, cited

COUNSEL:

ME Pope for the applicant

SOLICITORS:

DGM Lawyers for the applicant

Alan Wilson J: Joyce Douglas Mildred Kelly died on 6 June 2014. Her husband died before her, in 2010, but she has been survived by two of her three children: Lynette Joy Ellison, and Elizabeth Anne Watson (formerly Deshayes).
Ms Ellison has brought an application under s 18 of the Succession Act 1981 (Qld) for a grant of probate of a photocopy of her mother’s original last will. (She cannot find the original.) Unfortunately the application is misconceived, as at least one previous decision of this Court makes clear.
The evidence shows that Mrs Kelly and her husband executed separate wills on 18 October 1989. Those wills came into the safe-keeping of Sydney solicitors, Bicknell & Monteith Lawyers. On 1 November 1996 the lawyers sent those wills, on request, by ordinary mail to Mr and Mrs Kelly at a post office box at Nerang. (The solicitors also enclosed, with the letter, an earlier will of Mrs Kelly dated 19 November 1984.[1])
[1]Affidavit of Graeme Philip Monteith, affirmed 19 September 2014, Exhibit A.
The solicitors have no record of any acknowledgement of receipt of the wills from the Kellys, although the letter sent with the wills was never returned to them.[2]
[2]Ibid, at [5].
Despite having made ‘all efforts to search in likely and unlikely places at [her] home in [her] late mother’s belongings and any other place where [it] might be kept’, Ms Ellison has been unable to locate the original copy of her mother’s will dated 18 October 1989.[3]
[3]Affidavit…

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 Kelly

Details

AGLC: Re Kelly [2014] QSC 283
Case: [2014] QSC 283
Decision Date: 4 December 2014

CaseChat Overview and Summary

The case of Re Kelly involved a dispute concerning the making of a will under the Succession Act 1981 (Qld). The deceased individual's original last will could not be found, but the applicant, who was the deceased's daughter and named as executor in a copy of the original will, had located a draft version of the will. The applicant sought a determination that the copy was the deceased's last valid will under section 18 of the Act.

The court was required to decide whether a determination of the type sought by the applicant should be made in circumstances where the original will was missing. Specifically, the court needed to determine if section 18 of the Succession Act provided the power to dispense with formal execution requirements for a will, or a document purporting to alter or revoke a will, when the original will is not available. The court had to consider whether the applicant's copy of the will, in conjunction with the draft version, could be accepted as the deceased's last valid will.

The court reasoned that while section 18 of the Succession Act does provide the power to dispense with formal execution requirements, the circumstances in which such a determination could be made must be carefully considered. In this case, the court found that the missing original will was a significant factor that undermined the applicant's case. The court concluded that it was not appropriate to make the determination sought by the applicant in the absence of the original will. Consequently, the application was dismissed.

The court's decision was based on the absence of the original will and the inability to establish with certainty that the copy and draft version accurately reflected the deceased's testamentary intentions. The applicant's application for a determination that the copy was the deceased's last valid will was dismissed, leaving the succession matter unresolved without the original will.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Section 18 gives the court power to dispense with formal execution requirements for a will, or a document purporting to alter or revoke a will:18 Court may dispense with execution requirements for will, alteration or revocation(1) This section applies to a document, or a part of a document, that—(a) purports to state the testamentary intentions of a deceased person; and(b) has not been executed under this part.(2) The document or the part forms a will, an alteration of a will, or a full or partial revocation of a will, of the deceased person if the court is satisfied that the person intended the document or part to form the person’s will, an alteration to the person’s will or a full or partial revocation of the person’s will.(3) In making a decision under subsection (2), the court may, in addition to the document or part, have regard to—(a) any evidence relating to the way in which the document or part was executed; and(b) any evidence of the person’s testamentary intentions, including evidence of statements made by the person.(4) Subsection (3) does not limit the matters a court may have regard to in making a decision under subsection (2).(emphasis added)

CITATION:	Re Kelly [2014] QSC 283
PARTIES:	IN THE WILL of JOYCE DOUGLAS MILDRED KELLY (deceased)
FILE NO/S:	BS9469/14
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	4 December 2014
DELIVERED AT:	Brisbane
HEARING DATE:	21 October 2014
JUDGE:	Alan Wilson J
ORDER:	Application dismissed.
CATCHWORDS:	SUCCESSION – MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – WHEN LOST, MISLAID, DESTROYED OR NOT AVAILABLE – GENERALLY – where the deceased’s original last will cannot be located – where the applicant, the deceased’s daughter, is named as executor in a copy of that original last will – where the applicant has also located a draft version of the original last will – where the applicant applies for a determination that the copy is the deceased’s last valid will under s 18 of the Succession Act 1981 (Qld) – whether a determination of that type should be made in circumstances where the original will is missing Succession Act 1981 (Qld), s 10, s 18 Uniform Civil Procedure Rules 1999 (Qld), r 597, r 602 Re Cardie [2013] QSC 265, cited Re Colassin [2012] QSC 155, cited Re Gindrod (deceased) [2014] QSC 158, cited Re Henderson [1996] 1 Qd R 249, cited Re Masters (1994) 33 NSWLR 446, cited McCauley v McCauley (1910) 10 CLR 434, cited Proctor v Klauke & Ors [2011] QSC 425, cited
COUNSEL:	ME Pope for the applicant
SOLICITORS:	DGM Lawyers for the applicant