Re Smith (deceased) - [2025] QSC 257

SUPREME COURT OF QUEENSLAND

CITATION:

Re Smith (deceased) [2025] QSC 257

PARTIES:

IN THE WILL OF GLENDA LORRAINE SMITH

(deceased)

GARY WARWICK SMITH

(applicant)

FILE NO:

SE 12078 of 2025

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

13 October 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 (Qld), this application is to proceed without an oral hearing.

2. Subject to the formal requirements of the Registrar, a grant of probate with a copy of the will of Glenda Lorraine Smith (deceased) dated 28 June 2002 be granted to Gary Warwick Smith as executor with power being reserved to make the same grant to Ross Graham Smith and Lyndal Ann Jenkins when they shall apply for a grant personally.

3. The costs of the applicant, Gary Warwick Smith, be paid out of the estate of Glenda Lorraine Smith (deceased) on the indemnity basis.

CATCHWORDS:

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – LIMITED, SPECIAL AND CONDITIONAL GRANTS OF PROBATE AND ADMINISTRATION – where the deceased made a will – where the will was delivered to the applicant – where the will cannot be found – where a copy of the will is in existence – whether probate ought to be granted to the applicant of the copy will

Uniform Civil Procedure Rules 1999 (Qld) r 489, r 494, r 495

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

In the will of Leonie Lyle Warren (deceased) [2014] QSC 101, cited

SOLICITORS:

Cornford-Scott Lawyers for the applicant

This is an application by Gary Warwick Smith[1] for probate of a copy of the will of Glenda Lorraine Smith. He seeks to have the application determined without oral hearing.
[1]I shall refer to all the various persons by their first given name for convenience and without meaning any disrespect.
Glenda was married to Graham Athol Smith and they had three children: Gary, Ross Graham Smith, and Lyndal Ann Smith (now Jenkins).
Graham predeceased Glenda and she made a will on 28 June 2002. The original is lost but a copy is in existence. The will was drafted by solicitors Rowell Gill & Brown. It revokes all former wills and testamentary dispositions,[2] and appears to be properly executed.
[2]Clause 1.
By the will:
(a)all former wills are revoked;
(b)Gary, Ross and Lyndal are appointed executors and trustees;
(c)various specific gifts are made;[3]
(d)the residue is left to Gary, Ross and Lyndal in equal shares; and
(e)provision is made in the event that either Gary, Ross or Lyndal predecease Glenda (which they did not).
[3]Clause 3.
After the will was executed, it was retained in safe custody at Rowell Gill & Brown. In March of 2012, the original will, and other documents,…

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 Smith (deceased)

Details

AGLC: Re Smith (deceased) [2025] QSC 257
Case: [2025] QSC 257
Decision Date: 13 October 2025

CaseChat Overview and Summary

The case of Re Smith (deceased) involved an application by Gary Warwick Smith, who sought a grant of probate for a copy of the deceased's will, as the original could not be located. The applicant, Gary, was the named executor in the copy of the will, which was dated 28 June 2002. Other interested parties included Ross Graham Smith and Lyndal Ann Jenkins, who supported the application. The primary issue before the court was whether the applicant could rebut the presumption that the deceased, Glenda Lorraine Smith, had destroyed the original will with the intention to revoke it, thereby allowing the copy to be admitted to probate.

The court considered the legal principles established in Frizzo v Frizzo, which outlined five factors necessary for the successful application for the admission to probate of a copy of a will. These factors included the existence of a will or document embodying the deceased's testamentary intentions, the revocation of all previous wills, overcoming the presumption of destruction with intent to revoke, evidence of the will's terms, and proof of due execution or the deceased's intention for the document to be their will. Given the support from the other interested parties and the lack of need for an oral hearing, the court determined that the application could proceed without one.

In its reasoning, the court found that the circumstances surrounding the application did not necessitate a hearing and that the principles governing the grant of probate of a copy of a will were well established. The court concluded that it was appropriate to decide the application without an oral hearing and granted the application for probate with a copy of the will. The court also reserved the right to make the same grant to Ross Graham Smith and Lyndal Ann Jenkins when they should apply for it personally. Finally, the court ordered that the costs of the applicant be paid from the deceased's estate on the indemnity basis.

Orders

Orders of the court

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 with a copy of the will of Glenda Lorraine Smith (deceased) dated 28 June 2002 be granted to Gary Warwick Smith as executor with power being reserved to make the same grant to Ross Graham Smith and Lyndal Ann Jenkins when they shall apply for a grant personally.

3. The costs of the applicant, Gary Warwick Smith, be paid out of the estate of Glenda Lorraine Smith (deceased) on the indemnity basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Rule 489 of the Uniform Civil Procedure Rules 1999 (Qld) provides for decisions without an oral hearing of an application:“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)that 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). Here:(a)the only interested parties other than the applicant Gary, are Ross and Lyndal and they both support the application. Therefore, no party requires an oral hearing.[4](b)Gary has not abandoned the request for a decision without an oral hearing;[5] and(c)the Chief Justice has not suspended the operation of r 489 by direction.[6][4]Uniform Civil Procedure Rules 1999, rr 494 and 489(2)(b).[5]Uniform Civil Procedure Rules 1999, rr 495 and 489(2)(c).[6]Uniform Civil Procedure Rules 1999, r 489(2)(d). Consequently, the only question remaining is whether it is inappropriate to proceed without oral hearing.[7][7]Uniform Civil Procedure Rules 1999, r 489(2)(a). As explained later, the only real question on the application for a copy of the will to be admitted to probate is whether Gary can rebut the presumption that Glenda destroyed the original will with the intention to revoke it. While that is a factual question, the circumstances against which an inference might be drawn either way are not in dispute. The principles of law concerning the grant of probate of a copy of a will are well established and do not require detailed analysis. It is, therefore, appropriate to deal with the application without oral hearing.Should there be a grant of probate with a copy of the will? 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 of a 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 must overcome 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; and In the Will of Leonie Lyle Warren deceased [2014] QSC 101 at [11].

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Re Smith (deceased) [2025] QSC 257
PARTIES:	IN THE WILL OF GLENDA LORRAINE SMITH (deceased) GARY WARWICK SMITH (applicant)
FILE NO:	SE 12078 of 2025
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	13 October 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* (Qld), this application is to proceed without an oral hearing. 2. Subject to the formal requirements of the Registrar, a grant of probate with a copy of the will of Glenda Lorraine Smith (deceased) dated 28 June 2002 be granted to Gary Warwick Smith as executor with power being reserved to make the same grant to Ross Graham Smith and Lyndal Ann Jenkins when they shall apply for a grant personally. 3. The costs of the applicant, Gary Warwick Smith, be paid out of the estate of Glenda Lorraine Smith (deceased) on the indemnity basis.
CATCHWORDS:	SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – LIMITED, SPECIAL AND CONDITIONAL GRANTS OF PROBATE AND ADMINISTRATION – where the deceased made a will – where the will was delivered to the applicant – where the will cannot be found – where a copy of the will is in existence – whether probate ought to be granted to the applicant of the copy will Uniform Civil Procedure Rules 1999 (Qld) r 489, r 494, r 495 Allan v Morrison [1900] AC 604, cited Cahill v Rhodes [2002] NSWSC 561, cited Frizzo v Frizzo [2011] QSC 107, followed In the will of Leonie Lyle Warren (deceased) [2014] QSC 101, cited
SOLICITORS:	Cornford-Scott Lawyers for the applicant