Re Middleton (deceased)

[2021] QSC 264

SUPREME COURT OF QUEENSLAND

CITATION:

Re Middleton (deceased) [2021] QSC 264

PARTIES:

THE PUBLIC TRUSTEE OF QUEENSLAND

(applicant)
v
PAUL GREGORY CONOMOS
(respondent)

FILENO/S:

BS 897 of 2020

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATINGCOURT:

Supreme Court at Brisbane

DELIVEREDON:

20 October 2021

DELIVEREDAT:

Brisbane

HEARINGDATE/S:

24 September 2021 and 15 October 2021

JUDGE:

Jackson J

ORDER:

The order of the Court is that:

1.   Declare that, in or about 2003, the deceased wrote and executed a document which was in effect in the words following:

“I Kevin John Middleton of 1/26 Kreutzer Street, Nundah do hereby revoke all my previous wills and declare this to be my final will and testament.

I give my estate in its entirety to my de facto wife Shirley Joyce Conomos and in the event that she predeceases me to my stepson Paul Gregory Conomos.”

2.   Declare that at the time of his writing and executing the document the deceased intended it to form his will.

3.   Declare that at the time of the deceased’s death the will had not been revoked.

4. Subject to compliance with the Rules of Court, and subject to the consent of the Public Trustee given under s 27(3) of the Public Trustee Act 1978 (Qld), letters of administration be granted to the applicant with the will annexed as set out in 1 above, the original of the will not having been found.

5.   The applicant’s costs of the proceeding be paid out of the deceased’s estate on the indemnity basis.

6.   Liberty to apply.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – REVOCATION – METHODS OF REVOCATION – DESTRUCTION OR MUTILATION, OR STRIKING OUT PORTIONS – PRESUMPTION THAT WILL MISSING FROM TESTATOR’S CUSTODY INTENDED TO BE REVOKED BY DESTRUCTION – REBUTTAL OF PRESUMPTION –

where the deceased died with no surviving spouse, issue or parents – where the respondent is the son of the deceased’s de facto wife – where the applicant submits the deceased died intestate and presently administers the deceased’s estate – where the respondent submits there was a will of which he had a copy but the copy was lost – where the respondent submits he was to be the sole beneficiary of the deceased’s estate if he outlived his mother – where the deceased’s unit in which the respondent submits the will was kept was in a disorganised state following the deceased’s death – where the will has not been located – whether there is satisfactory proof of the due execution and contents of the will – whether the presumption that a will last seen in the testator’s custody and missing on their death was destroyed animo revocandi is rebutted – whether the deceased died intestate

Public Trustee Act 1978 (Qld), s 27(3), s 29(1)(a), s 36(1)

Succession Act 1981 (Qld), s 18(2)

Cahill v Rhodes [2002] NSWSC 561, cited

Demediuk v Demediuk [2019] VSCA 79, cited

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

Harris v Knight