Re Kelly

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.