Re: Welsh Dec'd

The matter before the Supreme Court of Queensland concerned the will of Vincent Reginald Welsh, deceased, who was a grazier. The applicant, the deceased's widow, sought to have the will admitted to probate despite the original document being unable to be located. The deceased and the applicant had executed their wills in 1973 and the originals were retained by their solicitor until he ceased practice in 1982. The deceased and applicant then took possession of their wills, keeping them in an envelope on top of a wardrobe at their residence. The applicant believed from conversations with the deceased that he had taken the original wills to another solicitor's office. The applicant transferred the carbon copies of the wills to a new filing cabinet before the deceased passed away from a heart attack in September 1993.

The court was required to determine whether the will could be admitted to probate despite the original document being lost, and whether the consent of all potentially interested persons was required. The applicant argued that in cases of small estates, a grant may be made on motion without requiring the consent of all persons interested in the estate. The court had to consider the evidence of the value of the estate and whether it was small enough to warrant such a grant. The applicant also relied on the fact that the deceased would not have altered or destroyed his will without consulting her.

The court found that the deceased had indeed made a will in 1973, and that the will was duly executed and not revoked. The court was satisfied that the intention to seek to have the will admitted to probate was duly advertised and that no caveat had been lodged. The court found that the estate was not large by today's standards, with interests in partnerships not exceeding $20,000 and $4,000 respectively, a balance in a building society account of less than $200.00, personal possessions not exceeding $20,000, and the benefit under an insurance policy not exceeding $7,000.00. The applicant and deceased also had a 2/3 interest in a grazing property which passed to the applicant by way of survivorship in any event. The court concluded that the size of the estate was not large and ordered that the will be admitted to probate. The court made an order in terms of the draft provided to it.