Re Nagy (dec'd)

[2023] QSC 63

SUPREME COURT OF QUEENSLAND

CITATION:	Re Nagy (dec’d) [2023] QSC 63
PARTIES:	IN THE WILL OF ETHEL NAGY (dec’d)
ERNEST JOSEPH NAGY
(applicant)
FILE NO:	BS No 1585 of 2023
DIVISION:	Trial Division
PROCEEDING:	Application on the papers
DELIVERED ON:	27 March 2023
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 (Qld) this application is to proceed without an oral hearing.

2.    Subject to the formal requirements of the Registrar, a Grant of Probate of a copy of the will of Ethel Nagy contained in Exhibit B to the affidavit of Ernest Joseph Nagy dated 31 January 2023, be granted to Ernest Joseph Nagy as executor limited until the original will or more authenticated evidence thereof be brought into and left at 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 she sought to give instructions for a fresh will – where the solicitor taking

instructions formed the view the deceased did not have

testamentary capacity to make a fresh will – where the solicitor did not take instructions – where the original will was released to the deceased – where the deceased died – where the original will could not be located – whether the presumption of

revocation has been rebutted

Succession Act 1981
Uniform Civil Procedure Rules 1999, r 489, r 598, r 599

Allan v Morrison [1900] AC 604, followed Cahill v Rhodes [2002] NSWSC 561, cited Frizzo v Frizzo [2011] QSC 107, followed

In the Will of Diane Margaret Cardie [2013] QSC 265,

followed followed

Re Clayton (dec’d) [1957] QWN 35, followed

SOLICITORS:  Mitchells Solicitors for the applicant

1. The applicant is the only child of Ethel Nagy (Mrs Nagy), a widow, who died on 24

   June 2022.

2. Mrs Nagy executed a will on 17 May 2007 (the will) but the original will cannot be

   found.

3. The applicant applies for probate of a copy of the will. Pursuant to r 489(1) of the

   Uniform Civil Procedure Rules 1999 (UCPR), he seeks to have the application

   determined on written submissions without oral hearing.

4. Rule 489(2) of the UCPR provides that where an application is made for a decision

   without an oral hearing the court must decide the application without oral hearing

   unless one of the circumstances in r 489(2)(a) or (b) or (c) or (d) is present. They are

   not and so I will decide the application without oral hearing.

   Relevant principles

5. There is no provision in the Succession Act 1981 which empowers the court to grant

   probate to a copy of a will.[1] However, there is no doubt that the court has jurisdiction

   to grant probate of a copy of a will[2] and that power is sourced…