Re Kenneth George Smith (deceased) - [2021] QSC 305

SUPREME COURT OF QUEENSLAND

CITATION:

Re Kenneth George Smith (deceased) [2021] QSC 305

PARTIES:

JANICE ANNE SMITH

(applicant)

FILE NO/S:

BS 13447 of 21

DIVISION:

Trial Division

PROCEEDING:

Application on the papers

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

On the papers (26 November 2021)

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Brown J

ORDER:

The order of the Court is that:

1. A grant of probate of the Will of Kenneth George Smith as contained in a copy thereof dated 15 January 2020 be granted to Janice Anne Smith as sole Executor thereof limited until the original Will or more authenticated evidence be brought into and left in the Registry of this Court. This order is subject to the formal requirements of the Registrar.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – 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 original Will of the deceased cannot be located – where a copy of the Will exists – whether the applicant can overcome the presumption that the deceased destroyed the Will

Frizzo & Anor v Frizzo & Ors [2011] QSC 107, applied

SOLICITORS:

Colville Johnstone Lawyers for the applicant

An order is sought that probate be given to Janice Anne Smith of a copy of the Will of Kenneth George Smith dated 15 January 2020 (“the Will”).
The original Will has not been able to be located. The evidence shows that the Will was prepared by Matthew Love Family Lawyers. The applicant is the ex-wife of the deceased and mother of two of his children. However, the Will was made after the divorce of the applicant and the deceased. They remained on good terms.
Following the deceased’s passing, the applicant inspected papers in his possession. She located a copy of the Will dated 15 January 2020, but not an original Will. She located a letter from Matthew Love Family Lawyers of the same date, confirming that the original Will was to be held in safe custody of Matthew Love Family Lawyers. The applicant indicates that she knew that the deceased had appointed her as executor and that at no stage did he indicate that he had removed the original Will from the safe custody of Matthew Love Family Lawyers, or revoked the Will.
An affidavit has been provided by Leonard Watt of Becker Watt Lawyers Pty Ltd. He was the principal of Love Family Lawyers, formerly Matthew Love Family Lawyers which was acquired by his firm. He identified that the solicitor who took the instructions from the deceased no longer works with his firm but was an associate at the time. The deceased had attended the firm in November 2019. Mr Watt noted that the Will was witnessed by Ms Campbell (the associate) and Ms Briana Saban who, at the time, was employed as a paralegal/receptionist. Ms Saban is…

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 Kenneth George Smith (deceased)

Details

AGLC: Re Kenneth George Smith (deceased) [2021] QSC 305
Case: [2021] QSC 305
Decision Date: 26 November 2021

CaseChat Overview and Summary

The case of Re Kenneth George Smith (deceased) involved the granting of probate of a lost will. The deceased, Kenneth George Smith, passed away without the original will being located, although a copy dated 15 January 2020 existed. Janice Anne Smith, the sole beneficiary and executor under the will, applied for a grant of probate based on the copy. The legal dispute centred on whether the copy was sufficient to grant probate under the circumstances, given the presumption that the deceased destroyed the will.

The central legal issue before the court was whether the applicant could overcome the presumption that the deceased had destroyed the will, thereby allowing for the grant of probate based on the copy. The court needed to determine if the conditions for a limited grant of probate were met and if the copy was sufficiently authenticated to warrant such a grant.

The court found that the copy of the will was a clear and complete reproduction of the original and was sufficiently authenticated. The court acknowledged the presumption that the deceased destroyed the will but determined that the applicant had provided compelling evidence to overcome this presumption. The court granted a limited, special and conditional grant of probate, subject to the formal requirements of the Registrar, pending the production of the original will or more authenticated evidence.

The court's order granted Janice Anne Smith a limited, special and conditional grant of probate of the will of Kenneth George Smith as contained in the copy dated 15 January 2020. This grant was limited until the original will or more authenticated evidence was produced. The order was subject to the formal requirements of the Registrar.

Orders

Orders of the court

The order of the Court is that:

1. A grant of probate of the Will of Kenneth George Smith as contained in a copy thereof dated 15 January 2020 be granted to Janice Anne Smith as sole Executor thereof limited until the original Will or more authenticated evidence be brought into and left in the Registry of this Court. This order is subject to the formal requirements of the Registrar.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Re Kenneth George Smith (deceased) [2021] QSC 305
PARTIES:	JANICE ANNE SMITH (applicant)
FILE NO/S:	BS 13447 of 21
DIVISION:	Trial Division
PROCEEDING:	Application on the papers
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	On the papers (26 November 2021)
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Brown J
ORDER:	The order of the Court is that: 1. A grant of probate of the Will of Kenneth George Smith as contained in a copy thereof dated 15 January 2020 be granted to Janice Anne Smith as sole Executor thereof limited until the original Will or more authenticated evidence be brought into and left in the Registry of this Court. This order is subject to the formal requirements of the Registrar.
CATCHWORDS:	SUCCESSION – MAKING OF A WILL – 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 original Will of the deceased cannot be located – where a copy of the Will exists – whether the applicant can overcome the presumption that the deceased destroyed the Will Frizzo & Anor v Frizzo & Ors [2011] QSC 107, applied
SOLICITORS:	Colville Johnstone Lawyers for the applicant