Re Wan (deceased) - [2025] QSC 270

SUPREME COURT OF QUEENSLAND

CITATION:

Re Wan (deceased) [2025] QSC 270

PARTIES:

IN THE WILL OF JIMMY CHEE MEE WAN

(deceased)

ROWENA WING YING WAN

(applicant)

FILE NO:

SE 12009 of 2025

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

21 October 2025

DELIVERED AT:

Brisbane

HEARING DATE:

Application on the papers

JUDGE:

Davis J

ORDER:

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 Jimmy Chee Mee Wan (deceased) be granted to Rowena Wing Ying Wan as executor.

3. The costs of the applicant, Rowena Wing Ying Wan, be paid out of the estate of Jimmy Chee Mee Wan 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 a copy of the will was delivered to the deceased – where the original will was retained by the solicitor who prepared it – where the solicitor retired from practice – where the solicitor subsequently died – where the will cannot be found – whether probate of a copy will ought to be granted to the applicant

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:

O’Shea & Partners Lawyers for the applicant

This is an application by Rowena Wing Ying Wan[1] for probate of a copy of the will of Jimmy Chee Mee Wan. She seeks to have the application determined without oral hearing.
[1]

Jimmy was married to Rowena at the time of his death. He died at Greenslopes Private Hospital on 24 June 2025 at the age of 89.
Jimmy left a will made on 5 March 2009. Only a copy of that will is available.
By the will:
(a)all former wills are revoked;
(b)Rowena, Betty Yun Chee Wan, and Jeanette Chiu Soon Wan are named as executors and trustees of the will;
(c)Jimmy’s principal place of residence vests in the trustees upon them giving permission for Rowena to live in the house during her lifetime;
(d)Jimmy’s interests in various properties are vested upon the Wan Family Trust;
(e)various specific gifts are made; and
(f)the rest and residue is left to Rowena.[2]
[2] The list is not meant as a complete list of the provisions of the will.
The will was prepared by a solicitor, Peter Lilley. Mr Lilley practised on his own account until about 2010, when he joined the firm Chesterfield Lawyers. By the time Mr Lilley joined that firm, Jimmy’s will had been made.…

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 Wan (deceased)

Details

AGLC: Re Wan (deceased) [2025] QSC 270
Case: [2025] QSC 270
Decision Date: 21 October 2025

CaseChat Overview and Summary

In the matter of Re Wan (deceased), the court was called upon to decide the issue of whether probate should be granted to a copy of a will when the original had been lost. The applicant, Rowena, sought to have the will admitted to probate as the executor of the estate of the deceased, Jimmy Chee Mee Wan. The original will was prepared by a solicitor and delivered to the deceased, while a copy was retained by the solicitor. The solicitor later retired and subsequently died, and the original will could not be found. The court had to decide whether it was appropriate to grant probate based on a copy of the will under the relevant rules and legal principles.

The primary legal issue was whether the court should grant probate based on a copy of a will when the original had been lost. The court considered the established principles for granting probate of a copy of a will, as outlined in previous cases such as Frizzo v Frizzo and Cahill v Rhodes. The court needed to determine if the five factors required for a successful application to admit a copy will to probate were satisfied. These factors include the existence of a will or document embodying the deceased's testamentary intentions, the revocation of any previous wills, the presumption that the will was destroyed by the testator, evidence of the will's terms, and proof that the will was duly executed or intended to constitute the deceased's will.

The court found that the circumstances surrounding the loss of the will were clear enough to reasonably infer that it had been misplaced in the office of the solicitor or one of the solicitors who had dealings with the deceased's securities upon retirement. Given the well-established principles and the clear circumstances, the court decided that it was appropriate to proceed without an oral hearing. The court concluded that all five factors required for granting probate of a copy of a will were satisfied, and therefore, probate should be granted based on the copy of the will.

The court made the following orders: first, the application would proceed without an oral hearing as per r 489(1) of the Uniform Civil Procedure Rules 1999 (Qld). Second, subject to the formal requirements of the Registrar, a grant of probate with a copy of the will of Jimmy Chee Mee Wan (deceased) would be granted to Rowena Wing Ying Wan as executor. Lastly, the costs of the applicant, Rowena Wing Ying Wan, would be paid out of the estate of Jimmy Chee Mee Wan 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 Jimmy Chee Mee Wan (deceased) be granted to Rowena Wing Ying Wan as executor.

3. The costs of the applicant, Rowena Wing Ying Wan, be paid out of the estate of Jimmy Chee Mee Wan 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 by r 489(2)(a)-(d). Here:(a)Rowena appears to be the only party interested in the application for grant of probate. No one has sought to be heard. Therefore, no party requires an oral hearing;[3](b)Rowena has not abandoned the request for a decision without an oral hearing;[4] and(c)the Chief Justice has not suspended the operation of r 489 by direction.[5][3] Uniform Civil Procedure Rules 1999 rr 494 and 489(2)(b). [4] Uniform Civil Procedure Rules 1999 rr 495 and 489(2)(c).[5] Uniform Civil Procedure Rules 1999 r 489(2)(d). Consequently, the only question remaining is whether it is inappropriate to proceed without oral hearing.[6] [6] Uniform Civil Procedure Rules 1999 r 489(2)(a). The principles of law concerning the grant of probate of a copy of a will are well established and do not require detailed analysis. The circumstances surrounding the loss of the will seem clear to the extent that the only reasonable inference is that the will has been misplaced in the office of either Mr Peter Lilley or one of the solicitors who may have had dealing with his securities upon his retirement. It is appropriate, therefore, to deal with the application without oral hearing.Should there be a grant of probate with a copy of the will? The original of the will is not available. A copy of a will can be admitted to probate. In Frizzo v Frizzo,[7] Applegarth J followed Cahill v Rhodes[8] and held that five matters must be established for a successful application for the admission to probate of a copy will.[9] 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 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).[7] [2011] QSC 107.[8] [2002] NSWSC 561.[9]

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Re Wan (deceased) [2025] QSC 270
PARTIES:	IN THE WILL OF JIMMY CHEE MEE WAN (deceased) ROWENA WING YING WAN (applicant)
FILE NO:	SE 12009 of 2025
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	21 October 2025
DELIVERED AT:	Brisbane
HEARING DATE:	Application on the papers
JUDGE:	Davis J
ORDER:	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 Jimmy Chee Mee Wan (deceased) be granted to Rowena Wing Ying Wan as executor. 3. The costs of the applicant, Rowena Wing Ying Wan, be paid out of the estate of Jimmy Chee Mee Wan 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 a copy of the will was delivered to the deceased – where the original will was retained by the solicitor who prepared it – where the solicitor retired from practice – where the solicitor subsequently died – where the will cannot be found – whether probate of a copy will ought to be granted to the applicant 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:	O’Shea & Partners Lawyers for the applicant