Re Warren (deceased)

[2014] QSC 101

SUPREME COURT OF QUEENSLAND

CITATION:

In the Will of Leonie Lyle Warren deceased [2014] QSC 101

PARTIES:

Graham John Warren and Ross Gregory Warren

(applicants)

FILE NO/S:

BS 4590 of 2013

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

21 May 2014

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Peter Lyons J

ORDER:

1. The application is granted.

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 duly executed will – where the will was subsequently lost – where a photocopy of the executed and properly witnessed will was discovered after the deceased’s death – whether the court should grant probate over the photocopy of the will

SUCCESSION – MAKING OF A WILL – REVOCATION – METHODS OF REVOCATION – DESTRUCTION OR MUTILATION, OR STRIKING OUT PORTIONS – PRESUMPTION OF DESTRUCTION OF LOST WILL INTENDED TO BE REVOKED – REBUTTAL OF PRESUMPTION – where the deceased made a duly executed and witnessed will that was held in the possession of her solicitors and then the solicitors for the applicants – where the will was subsequently lost – where the deceased spoke of that will consistent with it being the deceased’s last will – where a photocopy of that will remained among the deceased’s papers in an envelope which identified it as the deceased’s last will –whether the presumption of revocation in the case of a lost will applies – alternatively whether the presumption is rebutted

Uniform Civil Procedure Rules 1999 (Qld), r 375, r 601(1)(c), r 598

Cahill v Rhodes [2002] NSWSC 561, followed

Frizzo v Frizzo [2011] QSC 107, followed

SOLICITORS:

Creevey Russell Lawyers for the applicants

1. PETER LYONS J:  The application which commenced these proceedings sought, as filed, probate of a document described as "the unsigned will of (Leonie Lyle Warren) (the deceased) dated 1 November 1999".  The document appears to be a computer print out in the form of a will, with places for signing by the testatrix and two witnesses (unsigned copy).  The printed document included a date, 1 November 1999.  The application was brought on the basis that a document in identical form had been executed by the deceased, and properly witnessed; but was subsequently lost.

1. An application was then made for the determination of the application for probate, without an oral hearing.  I caused my Associate to make some enquiries relating to further evidence.  Ultimately, that resulted in the discovery of a document, which appears to be a photocopy of an executed and properly witnessed will of the deceased, also dated 1 November 1999 (photocopy will).  The contents of the unsigned copy and the photocopy will appear to be identical.  The applicants now wish to apply for probate of the photocopy will.  They have accordingly applied for leave to amend their application for probate.

1. I am…