Re Sleeman (dec'd)

[2024] QSC 274

SUPREME COURT OF QUEENSLAND

CITATION:

Re Sleeman (dec’d) [2024] QSC 274

PARTIES:

IN THE WILL OF BRIAN PETER SLEEMAN (deceased)

PAUL JOSEPH SLEEMAN

(applicant)

FILE NO:

10977 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

8 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

Application on the papers

JUDGE:

Davis J

ORDER:

Subject to the formal requirements of the Registrar, letters of administration of the will of Brian Peter Sleeman dated 16 May 2007 as contained in a copy thereof, be granted to Paul Joseph Sleeman

CATCHWORDS:

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – LIMITED, SPECIAL AND CONDITIONAL GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – PROBATE OF LOST WILL – where the deceased made a valid will – where the original will was not retained by the solicitor who drafted it – where the will was delivered to the testator – where the testator died – where the original will could not be located – where the named executors and trustees renounced – whether letters of administration should be given of the copy will

Succession Act 1981 (Qld), s 6

Uniform Civil Procedure Rules 1999 (Qld), r 489

Allan v Morrison [1900] AC 604, cited
Cahill v Rhodes [2002] NSWSC 561, cited
Curley v Duff (1985) 2 NSWLR 716, cited
Frizzo v Frizzo [2011] QSC 107, followed
In the will of Dianne Margaret Cardie [2013] QSC 265, cited
In the Will of Leonie Lyle Warren deceased [2014] QSC 101, cited
Lemon v Lemon [2014] QSC 123, cited
Price v Tickle [2013] 1 Qd R 319; [2011] QSC 206, cited
Re Clayton (dec’d) [1957] QWN 35, cited

Re Hay (dec’d) [2023] QSC 146, cited

SOLICITORS:

Everingham Wallace Law Practice for the applicant

1. Brian Peter Sleeman, also known as Peter Brian Sleeman (the deceased), died on 28 May 2024.

2. His brother, Paul Joseph Sleeman, makes application for letters of administration of a copy of a will made by the deceased on 16 May 2007.

   Background

3. The deceased died at the age of 71.  He never married and had no children.

4. On 16 May 2007, he made a will which was drafted by a solicitor, Mr Robert Maggs.

5. By the terms of the will, the deceased:

   (a)   appointed his brother, Edward Michael Romuald Sleeman (also known as Michael Edward Sleeman.  I shall refer to him as Michael Sleeman), as his executor and trustee;

   (b)   appointed his sisters, Patricia O’Neil and Edwina Mary Collette, as joint alternative executors and trustees;

   (c)   bequeathed the whole of his estate to Michael Sleeman;

   (d)   in default, to his sisters Patricia O’Neil and Edwina Mary Collette; and

   (e)   in that event and if either of his sisters predeceased him then to their children.

6. The deceased lived in rental accommodation.  After his death, Paul Sleeman and his wife, together with Michael Sleeman, attended upon the deceased’s rented accommodation.  Paul Sleeman describes the residence as “in a deplorable state with rubbish, clothing and paperwork strewn everywhere”.

7. Paul Sleeman then spoke to a friend of the deceased who told him that he had made a will using the solicitors Robert Maggs Lawyers.

8. Investigations revealed that a will was made but that Mr Maggs had a policy of not holding original wills in safe custody.  He took an electronically scanned copy of the executed will which he then delivered back to the deceased.

9. Each of Michael Sleeman, Patricia O’Neil and Edwina Collette renounced their right and title to the administration of the will.  Paul Sleeman submits that he has priority to letters of administration and as the will cannot be found, he seeks letters of administration of a copy.

   Determination without oral hearing

10. The applicant seeks to have the application determined without oral hearing. Rule 489 of the Uniform Civil Procedure Rules 1999 provides for such a procedure:

    “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.”

11. 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 in the absence of any of the circumstances prescribed in rr 489(2)(a)-(d).

12. None of the circumstances identified in rr 489(2)(c) and (d) arise. There is no respondent so r 489(2)(b) is of no relevance. The sole question is whether the court considers it inappropriate to determine the matter without oral hearing.

13. As will become evident, the only real question is whether there is sufficient evidence to draw the inference against revocation of the will.  The applicant has presumably put forward the best evidence he can and it is a question of assessing that evidence.  It is appropriate to proceed without oral hearing.

    Any questions of priority?

14. As already observed, the nominated executor and the nominated alternative executors have all renounced.  Also as already observed, the deceased had no spouse and no children.

15. By s 6(3) of the Succession Act 1981, letters of administration of the estate of a deceased person may be made to such person as the court thinks fit.  The applicant is the only one of the deceased’s siblings who is willing to take on the administration of the estate.  The estate is not a big one and it appears appropriate that if letters of administration are granted, they be granted to the applicant.

    Should a copy of the will be the subject of a grant of letters of administration?

16. The Succession Act grants jurisdiction to the court over matters of succession[1] but there is no provision expressly empowering the court to grant letters of administration to a copy of a will.[2]  There is though no doubt that the court does have jurisdiction to make letters of administration of a copy of a testamentary instrument.[3]  The power is sourced from the common law.[4]

    [1]Succession Act 1981, s 6.

    [2]In the will of Dianne Margaret Cardie [2013] QSC 265 at [16]-[19].

    [3]Re Clayton (dec’d) [1957] QWN 35; and In the Will of Leonie Lyle Warren deceased [2014] QSC 101.

    [4]In the will of Dianne Margaret Cardie [2013] QSC 265 at [16]-[19].

17. Whether or not the court grants letters of administration of a copy of a testamentary instrument is a matter of the exercise of discretion.  In Frizzo v Frizzo,[5] Applegarth J followed Cahill v Rhodes[6] and held that five matters must be established for a successful application for the admission to probate or letters of administration of a copy will.[7]  These are:

    (a)there was actually a will purporting to embody the testamentary intentions of a deceased person (factor 1);

    (b)that will revoked all previous wills (factor 2);

    (c)the applicant overcomes the presumption[8] 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).[9]

    [5][2011] QSC 107.

    [6][2002] NSWSC 561.

    [7]       Frizzo v Frizzo [2011] QSC 107 at [161]; and In the Will of Leonie Lyle Warren deceased [2014]

    QSC 101 at [8].

    [8]Allan v Morrison [1900] AC 604; and In the Will of Leonie Lyle Warren deceased [2014] QSC 101 at [11].

    [9]At [161], followed in Re Hay (dec’d) [2023] QSC 146 at [26], In the Will of Leonie Lyle Warren deceased [2014] QSC 101 at [8]; Price v Tickle [2013] 1 Qd R 319; Cahill v Rhodes [2002] NSWSC 561, citing Curley v Duff (1985) 2 NSWLR 716; approved by de Jersey CJ In the Will of Dianne Margaret Cardie [2013] QSC 265; and Alan Wilson J in Lemon v Lemon [2014] QSC 123.

18. Here, there is no doubt that the will was executed.  It purports on its face to revoke all previous wills.  The will was intended to be a testamentary document.  The terms of the will are known as Mr Maggs has produced a copy.  Factors 1 2, 4 and 5 as identified by Applegarth J in Frizzo v Frizzo are all fulfilled.

19. The issue here is whether there is sufficient evidence to overcome the presumption that the will was destroyed by the deceased with the intention of revoking it.[10]  As already observed, the will was executed in 2007.  At that time, the deceased was obviously concerned to make provision for his estate in the event of death.  If he intended to alter or revoke his will, it is clear that he did not go back to see Mr Maggs.  The advertisement of the intention to seek letters of administration has not led to any other will or testamentary instrument being discovered.

    [10]Factor 3.

20. Although it is difficult to put a time on the statement, it seems the last known occasion that the deceased spoke about his will was to a friend when he said that he had made a will with the solicitor down the road, which was clearly a reference to Mr Maggs.  That is some evidence indicating that he believed that his operative will was the will prepared by Mr Maggs for which Paul Sleeman now seeks letters of administration.

21. The likely alternative to the deceased destroying the will with a view to revoking it is that he lost it.

22. In my view, it is more likely that the will was lost. 

23. There is evidence that the deceased was not running an orderly life.  His cause of death included “hypertension, alcohol misuse, malnutrition” being conditions that had lasted for years.  He lived alone and after his death, the state of his abode was, as already observed, described as “deplorable”.

24. I draw the inference that the deceased did not destroy the will with the intention of revoking it.

25. Letters of administration ought to be granted in favour of Paul Sleeman.

    Orders

26. The orders are:

    1.Subject to the formal requirements of the Registrar, letters of administration of the will of Brian Peter Sleeman dated 16 May 2007 as contained in a copy thereof, be granted to Paul Joseph Sleeman