Re: Welsh Dec'd

[1997] QSC 32

IN THE SUPREME COURT
OF QUEENSLAND

Brisbane  No.882 of 1997

Before the Hon. Mr Justice Mackenzie

[re:  Welsh dec'd]

IN THE WILL of VINCENT REGINALD WELSH
  late of "Rossmore", Jackson in the
  State of Queensland,
  Grazier, deceased  

JUDGMENT - MACKENZIE J.

Judgment Delivered 7 March, 1997

CATCHWORDS:           WILLS - unable to locate original will - whether is small estate - whether consent of all potentially interested persons required.

Counsel:  Mr D.G. Mullins

Solicitors:  McCullough Robertson as Town Agents for Ferrier & Co.

Hearing date:          26 February, 1997
IN THE SUPREME COURT
OF QUEENSLAND

Brisbane  No.882 of 1997

Before the Hon. Mr Justice Mackenzie

[re:  Welsh dec'd]

IN THE WILL of VINCENT REGINALD WELSH
  late of "Rossmore", Jackson in the
  State of Queensland,
  Grazier, deceased  

JUDGMENT - MACKENZIE J.

Judgment Delivered 7 March, 1997

The deceased and the applicant, who is his widow, were graziers.  They made wills on the same day in 1973.  The original wills were retained in the custody of their solicitor until he ceased practice in 1982.  They then took possession of their wills which were kept at the residence on their property in an envelope which was placed on top of a wardrobe.  Carbon copies of the wills were kept in another filing system at the residence.  The applicant believed from conversations with the deceased some time later that he had taken the original wills to another solicitor's office.  A later conversation when other personal records were being disposed of focused on the need to keep the carbon copies.
          In 1993 the applicant and the deceased were desirous of transferring a share of their property to their daughter.  The question of making new wills after the property transaction was completed was discussed and the solicitor advised them of the cost.  The property transaction was completed in July 1993.  The applicant deposes that she transferred the carbon copies of the wills to a new filing cabinet given to the deceased shortly prior to his death from a heart attack in September 1993, before they had made arrangements to make their new wills.
          Searches of the residence, the solicitor's office and banks with which the deceased had dealings have been unsuccessful in locating the original will of the deceased.  The applicant deposed that she was "absolutely certain" that her husband would not have altered his will or destroyed his will without first conferring with her.
          I am satisfied that the deceased made a will in or about 1973.  I am satisfied by the evidence of Mr Mansfield, the solicitor, as to his practice that the will was duly executed.  I am satisfied from the history outlined above that the will was not revoked.  I am satisfied that the intention to seek to have the will admitted to probate was duly advertised and that no caveat has been lodged.
          Mr Mullins for the applicant relied on  In the Goods of Apted (1899) P.272 for the proposition that in the case of a small estate a grant may be made on motion in a clear case without requiring as an absolute condition the consent of all persons interested in the estate. The headnote of In the Goods of Apted is to that effect and reflects the submission of counsel in that regard although the judgment of Gorell Barnes J. simply speaks of "clear cases without specifying what those cases may be".  He recognised that this was a modification of the view he expressed in In the Goods of Pearson (1896) P.289 where he drew a distinction between small estates and substantial estates. The Queensland cases of Re Baynton (1908) St.R.Qd 160 and In re Parminter 1929 Q.W.N. 36 were argued with reliance on the fact that the estate was small as if it was an important consideration. In the present case there is no evidence of the attitude of other potentially interested persons. In this respect it is unlike Re Henderson (1996) 1 QdR249 where all but one consented and Williams J. made a finding that the remaining person, who was mentally incapable of consenting, would probably have consented but also noted the authority of In the Goods of Apted.  In some circumstances it may be that the absence of such evidence may have an influence on the outcome of the application.
          It is not necessary to resolve either of those issues because the evidence of the value of the estate in the present case shows that the deceased had interests in partnerships not exceeding $20,000 and $4,000 respectively, a balance in a building society account of less than $200.00 and personal possessions not exceeding $20,000.  There was also the benefit under an insurance policy not exceeding $7,000.00.  The applicant and the deceased also had a ²/₃ interest in a grazing property which passes to her by way of survivorship in any event.
          I have come to the conclusion that the size of the estate is not large by today's standards and therefore I order that the will be admitted to probate.  I will make an order in terms of the draft provided to me.