Re Last (deceased)

Case [2025] QSC 116

SUPREME COURT OF QUEENSLAND

CITATION:

Re Last (deceased) [2025] QSC 116

PARTIES:

IN THE WILL OF HERBERT HENRY LAST

(deceased)

MALCOLM JOHN LAST

(first applicant)
AND
MELISSA JANE BUCHANAN
(second applicant)
AND
JOCELYNNE NAOMI BERRY
(third applicant)

FILE NO:

SE 1159 of 2025

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

22 May 2025

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, the application proceed without an oral hearing.

2.    Subject to the formal requirements of the Registrar, a grant of probate of the copy of the will of Herbert Henry Last (deceased), dated 13 May 2016 being exhibit A to the Affidavit of Malcolm John Last, be granted to Malcolm John Last, Melissa Jane Buchanan and Jocelynne Naomi Berry as executors, until the original will or more authenticated evidence be brought into and left in the Registry of this Court. 

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 deceased made a valid will – where he collected the original from the office of the solicitors who held it – where, after collecting the will, he discussed its contents with one of the named executors – where on that occasion he provided a copy of the will to one of the named executors – where the deceased died – where the original will could not be located – whether the presumption of revocation has been rebutted – whether probate should be granted on the copy will  

Succession Act1981 (Qld)
Uniform Civil Procedure Rules 1999 (Qld), r 489, r 598, r 599

Allan v Morrison [1900] AC 604, cited
Cahill v Rhodes [2002] NSWSC 561, followed
Frizzo v Frizzo [2011] QSC 107, followed
In the Will of Diane Margaret Cardie [2013] QSC 265, cited
In the Will of Leonie Lyle Warren deceased [2014] QSC 101, followed
Re Clayton (dec’d) [1957] QWN 35, followed

COUNSEL:

Written submissions for the applicants prepared by A M  Laylee

SOLICITORS:

ACS Legal Solutions for the applicants

  1. Probate is sought on a copy of the will of Herbert Henry Last who, with all respect, I shall refer to as Herbert, who died on 20 September 2024.

    Background

  2. On 13 May 2016, Herbert made a will.

  3. The will was prepared by a firm of solicitors, ACS Legal Solutions.

  4. By the terms of the will Herbert appointed his son, Malcolm John Last, as joint trustee and executor of his estate with “… the Principal at the time of my passing, of ACS LEGAL SOLUTIONS”.

  5. Herbert then bequeathed the estate in one-third shares to each of his daughter, Linda Joy Ware, his son, Malcolm, and the children of his son, Michael Wayne Last.  Michael predeceased Herbert and had died prior to the making…

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Details
AGLC
Re Last (deceased) [2025] QSC 116
Case
[2025] QSC 116
Decision Date

CaseChat Overview and Summary

This case involved an application for the grant of probate for a copy of the will of Herbert Henry Last, who passed away on 20 September 2024. Herbert had executed a will on 13 May 2016, naming his son Malcolm John Last, along with the principal of the solicitors who held the will, ACS Legal Solutions, as joint trustee and executor of his estate. The original will was retained by ACS Legal Solutions until Herbert collected it in February 2019. Herbert provided a copy of the will to Malcolm in May 2023, but the original could not be located after Herbert’s death. The primary legal issue was whether the presumption of revocation could be rebutted and if probate should be granted on the copy will.

The court considered the relevant principles governing the grant of probate for a copy of a will. While there is no statutory authority for such a grant, the court has common law jurisdiction to do so. In Frizzo v Frizzo, Applegarth J outlined five factors that must be established for a successful application for the admission of a copy will to probate: (a) the existence of a will or a document embodying testamentary intentions; (b) the revocation of all previous wills; (c) overcoming the presumption that if the will cannot be produced, it was destroyed with the intention of revoking it; (d) evidence of the terms of the will; and (e) proof of the will’s execution or the deceased's intention for the document to constitute their will. The court determined that the circumstances did not render it inappropriate to decide the matter without an oral hearing and proceeded to consider whether the applicants had rebutted the presumption of revocation.

Based on the evidence presented, the court found that the presumption of revocation had been rebutted. The copy will provided by Malcolm aligned with Herbert’s testamentary intentions discussed in May 2023, and there was no indication that Herbert intended to revoke the will before his death. Therefore, the court granted probate of the copy will to Malcolm John Last, Melissa Jane Buchanan, and Jocelynne Naomi Berry as executors, pending the location of the original will or more authenticated evidence.

Pursuant to rule 489(1) of the Uniform Civil Procedure Rules 1999, the application proceeded without an oral hearing. The court granted a grant of probate of the copy of Herbert Henry Last’s will dated 13 May 2016, subject to the formal requirements of the Registrar, to Malcolm John Last, Melissa Jane Buchanan, and Jocelynne Naomi Berry as executors until the original will or more authenticated evidence is produced.

Orders

Orders of the court

1. Pursuant to r 489(1) of the Uniform Civil Procedure Rules 1999, the application proceed without an oral hearing.

2. Subject to the formal requirements of the Registrar, a grant of probate of the copy of the will of Herbert Henry Last (deceased), dated 13 May 2016 being exhibit A to the Affidavit of Malcolm John Last, be granted to Malcolm John Last, Melissa Jane Buchanan and Jocelynne Naomi Berry as executors, until the original will or more authenticated evidence be brought into and left in the Registry of this Court.

Background

Background to the litigation

Probate is sought on a copy of the will of Herbert Henry Last who, with all respect, I shall refer to as Herbert, who died on 20 September 2024.Background On 13 May 2016, Herbert made a will. The will was prepared by a firm of solicitors, ACS Legal Solutions. By the terms of the will Herbert appointed his son, Malcolm John Last, as joint trustee and executor of his estate with “… the Principal at the time of my passing, of ACS LEGAL SOLUTIONS”. Herbert then bequeathed the estate in one-third shares to each of his daughter, Linda Joy Ware, his son, Malcolm, and the children of his son, Michael Wayne Last. Michael predeceased Herbert and had died prior to the making of the will on 13 May 2016. After execution of the will it was retained by ACS. However, those solicitors relocated their offices in 2018. As part of the process of relocation, they wrote to Herbert in these terms:“Just a quick note to let you know that our office has relocated to a new premises at 1/9-13 Waldron street, Yarrabilba. Rest assured your safe custody has relocated with us to our new office and is locked up safe and sound in our new safe custody store room.If you wish to review your documents or have any questions feel free to contact myself or Melissa Buchanan on the contact details below …”[1][1]Faithfully reproduced, notwithstanding obvious errors. That letter was authored by Jocelynne Berry who, with Ms Melissa Buchanan, also named in the letter, were the principals of ACS Legal Solutions at the time of Herbert’s death. They are, therefore, with Malcolm, the nominated executors and trustees of Herbert’s will. Herbert collected the will a few months later on 18 February 2019. Neither Ms Buchanan nor Ms Berry have seen the original will since Herbert removed it from their safe custody. Around 16 May 2023, Malcolm had a conversation with Herbert. Herbert provided a copy of the will to Malcolm and there was a discussion about its terms and about Herbert’s testamentary intentions. None of that conversation was inconsistent with the terms of the copy of the will that was produced. Herbert told Malcolm that his sister had been provided with a copy of the will. Herbert told Malcolm that he, Herbert, also retained a copy. Herbert died on 20 September 2024 at the age of 82. In the period between 16 May 2023 and Herbert’s death in September 2024, Malcolm was not advised by Herbert that he had made a new will or that he had decided to revoke the will that he had made in May 2016. After Herbert’s death, Malcolm contacted ACS and learned that the original will had been collected by Herbert on 18 February 2019. Malcolm then thought that the copy of the will which he had been given by Herbert was the original. A staff member of ACS inspected the document in the possession of Malcolm and ascertained that it was only a copy of the will. Malcolm conducted a search of Herbert’s last residence and located a copy of the will, but not the original. Malcolm’s sister had received a copy of the will from Herbert and that was held by her in her safe. That document was recovered by Malcolm, but it is not the original.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Rule 489 of the UCPR provides:“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:(a)jurisdiction to proceed without an oral hearing is granted;(b)the jurisdiction is enlivened by a proposal by an applicant; and(c)the proposal must be accepted by the Court in the absence of any of the circumstances prescribed in rr 489(2)(a)-(d). None of the circumstances identified in r 489(2)(b) or (c) or (d) arise. The sole question is whether the Court considers it inappropriate to determine the matter without oral hearing.[3] For reasons which appear below, the only issue is whether the applicants have displaced the presumption that if the will cannot be produced to the Court it was destroyed by the testator with the intention of revoking it.[4] The facts relevant to that determination are in narrow compass and there is no reason to think those facts are contentious. In the circumstances, no reason is identified rendering it inappropriate to deal with the matter without oral hearing, and I will do so. [3]Rule 489(2)(a).[4]Allan v Morrison [1900] AC 604 at 610-611; In the Will of Leonie Lyle Warren (deceased) [2014] QSC 101 at [11]; and Frizzo v Frizzo [2011] QSC 107 at [161].Relevant principles There is no provision in the Succession Act1981 which empowers the court to grant probate to a copy of a will.[5] However, there is no doubt that the court has jurisdiction to grant probate of a copy of a will[6] and that power is sourced in the common law.[7][5]See the observations in In the Will of Diane Margaret Cardie [2013] QSC 265 at [16]-[19].[6]Re Clayton (dec’d) [1957] QWN 35; In the Will of Leonie Lyle Warren deceased [2014] QSC 101.[7]In the Will of Diane Margaret Cardie [2013] QSC 265 at [16]-[19]. In Frizzo v Frizzo,[8] Applegarth J followed Cahill v Rhodes[9] and held that five matters must be established for a successful application for the admission to probate of a copy will.[10] These are:(a)there was actually a will or a document purporting to embody the testamentary intentions of the deceased person (factor 1);(b)that will or document revoked all previous wills (factor 2);(c)the applicant overcomes the presumption[11] that if the will cannot be produced to the Court, it was destroyed by the testator with the intention of revoking it (factor 3);(d)there is evidence of the terms of the will (factor 4); and(e)the will was duly executed or that the deceased person intended the document to constitute his or her will (factor 5).[8][2011] QSC 107.[9][2002] NSWSC 561.[10]Frizzo v Frizzo [2011] QSC 107 at [161]; see also In the Will of Leonie Lyle Warren deceased [2014] QSC 101 at [8].[11]See Allan v Morrison [1900] AC 604; In the Will of Leonie Lyle Warren deceased [2014] QSC 101 at [11].

Ratio Decidendi

Legal Principle Established

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