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
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.
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.
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- AGLC
- In the Will of [2014] QSC 101
- Case
- [2014] QSC 101
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the lost will could be considered for probate based on the photocopy, and if the presumption of revocation due to the loss of the will could be rebutted. The presumption that a lost will was intended to be revoked by its destruction was a critical point of contention. The applicants argued that the deceased had continued to refer to the will as her last will and that the photocopy was an accurate representation of the original.
The court concluded that the presumption of revocation could be rebutted in this case. The evidence showed that the deceased had consistently referred to the lost will as her last will, and the photocopy was found in an envelope clearly identifying it as the deceased's last will. This evidence indicated that the will had not been revoked by its destruction. Consequently, the court granted the application for probate, accepting the photocopy as a sufficient basis for granting probate of the will.
The final order was that the application for probate based on the photocopy of the lost will was granted, allowing the estate to be administered in accordance with the terms of the will as represented by the photocopy.
Orders
Orders of the court
1. The application is granted.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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