Williamson v Pay

Case [2020] QSC 66

SUPREME COURT OF QUEENSLAND

CITATION:

Williamson v Pay [2020] QSC 66

PARTIES:

KARA WILLIAMSON

(first applicant)
LEAH WILLIAMSON
(second applicant)

v
RONALD RAYMOND PAY

(respondent)

FILE NO/S:

BS No 14093 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 April 2020

DELIVERED AT:

Brisbane

HEARING DATE:

Application determined without oral hearing

JUDGE:

Davis J

ORDER:

It is ordered that:

1.    Order 3 made by Boddice J on 26 September 2019 be set aside.

2. Pursuant to s 6, Succession Act 1981 and r 603(1)(h) of the Uniform Civil Procedure Rules 1999, subject to the formal requirements of the Registrar, Letters of Administration, with the photocopy of the signed will of Meryl Nola Williamson deceased dated 23 March 2013 which is exhibit KWA-9 to the affidavit of Kara Williamson filed 20 December 2018, be granted to Australian Unity Trustees Limited.

3.   The applicants’ costs of the application be paid on the indemnity basis out of the estate of the late Meryl Nola Williamson as agreed or assessed.

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 an order was made on 26 September 2019 revoking a grant of probate and ordering the respondent to bring the original of the grant of probate of the deceased’s last will into the registry of the court – where the original of the penultimate will cannot be located – where there is no doubt the will existed – where there are copies of the will available – where the will revoked all previous wills – where there is no evidence of any intention by the testator to revoke the will – whether it is appropriate to grant probate to a copy of the penultimate will

Succession Act 1981, s 6

Uniform Civil Procedure Rules 1999, r 489, r 603(1)(h), r 668(1)(b)

Frizzo v Frizzo [2011] QSC 107, followed
In the Will of Leonie Lyle Warren deceased [2014] QSC 101, followed
KGK Constructions Pty Ltd v East Coast Earthmoving Pty Ltd [1985] Qd R 13, cited
Rankin v Agen Biomedical Ltd [1999] 2 Qd R 435, followed
Re Clayton (deceased) [1957] QWN 35, cited
Re Ambrose [2019] QSC 3, cited

SOLICITORS:

IBT Law for the applicant

  1. This is an application to vary orders made by Boddice J granting letters of administration to Australian Unity Trustees Limited of the will of Meryl Nola Williamson (Mrs Williamson) dated 22 March 2013.

  2. Variation of the orders is sought because the original of the will cannot be located.

    Background

  3. Mrs Williamson died at Tiaro in Queensland on 22 February 2018.  She made various wills during her lifetime.[1]  Two of these wills are relevant to the present application.  They are:

    1.     the will of 22 March 2013 (the 2013 will); and

    2.     the will of 2 October 2014 (the 2014 will).

    [1]25 September 2003, 1 February 2006,…

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Details
AGLC
Williamson v Pay [2020] QSC 66
Case
[2020] QSC 66
Decision Date

CaseChat Overview and Summary

Williamson v Pay involved the succession dispute over the estate of Meryl Nola Williamson, who passed away on 22 February 2018. The applicants, Kara and Leah Williamson, the granddaughters of the deceased, sought to vary the orders made by Boddice J on 26 September 2019. The court had revoked the grant of probate to Ronald Raymond Pay, the respondent, and ordered him to produce the original grant of probate of the deceased’s last will into the registry of the court. The applicants sought to vary the orders as the original of the will could not be located. The central issue before the court was whether it was appropriate to grant probate to a copy of the penultimate will of the deceased, which was dated 22 March 2013.

The court examined the circumstances surrounding the lost will and the availability of a copy. It was evident that the 2013 will existed, as there were copies available, and it had revoked all previous wills. The court considered the presumption that if the will could not be produced to the court, it was destroyed by the testator with the intention of revoking it. However, the court found that the deceased had intended the will to be safely in the hands of solicitors who could act upon it upon her death. Therefore, the court held that it was appropriate to grant probate to a copy of the will, following the precedents set in Re Ambrose and Frizzo v Frizzo. The court concluded that all five preconditions for the admission to probate of a copy of a will were satisfied.

As a result, the court ordered that Order 3 made by Boddice J on 26 September 2019 be set aside, and in its place, pursuant to s 6, Succession Act 1981 and r 603(1)(h) of the Uniform Civil Procedure Rules 1999, subject to the formal requirements of the Registrar, Letters of Administration, with the photocopy of the signed will of Meryl Nola Williamson deceased dated 23 March 2013, be granted to Australian Unity Trustees Limited. The applicants' costs of the application were to be paid on the indemnity basis out of the estate of the late Meryl Nola Williamson as agreed or assessed.

Orders

Orders of the court

It is ordered that:

1. Order 3 made by Boddice J on 26 September 2019 be set aside.

2. Pursuant to s 6, Succession Act 1981 and r 603(1)(h) of the Uniform Civil Procedure Rules 1999, subject to the formal requirements of the Registrar, Letters of Administration, with the photocopy of the signed will of Meryl Nola Williamson deceased dated 23 March 2013 which is exhibit KWA-9 to the affidavit of Kara Williamson filed 20 December 2018, be granted to Australian Unity Trustees Limited.

3. The applicants’ costs of the application be paid on the indemnity basis out of the estate of the late Meryl Nola Williamson as agreed or assessed.

Background

Background to the litigation

Variation of the orders is sought because the original of the will cannot be located.Background Mrs Williamson died at Tiaro in Queensland on 22 February 2018. She made various wills during her lifetime.[1] Two of these wills are relevant to the present application. They are:1. the will of 22 March 2013 (the 2013 will); and2. the will of 2 October 2014 (the 2014 will).[1]25 September 2003, 1 February 2006, 22 March 2013 and 2 October 2014. By the 2014 will, Mrs Williamson appointed the respondent, Ronald Raymond Pay, as her sole executor and trustee. Various bequests were made in the will. Mr Pay shared in the residue with three other persons. By the 2013 will, Mrs Williamson appointed the New South Wales Trustee and Guardian to be her executor. The 2013 will sets up a fairly complicated scheme for the benefit of various persons but there is no mention of Mr Pay. After Mrs Williamson’s death, Mr Pay applied for probate of the 2014 will. That was granted on 16 May 2018. The two applicants, Kara Williamson and Leah Williamson, are granddaughters of Mrs Williamson. They were beneficiaries under both the 2013 will and the 2014 will. On 20 December 2018, Kara and Leah brought an application seeking the removal of Mr Pay as executor of Mrs Williamson’s estate and the revocation of the grant of probate made to him. Other ancillary orders were also sought. That application was founded upon the assertion that Mrs Williamson did not have testamentary capacity to make the 2014 will. The 2014 will purported to revoke all previous wills, which would include the 2013 will. Assuming that there was no will made by Mrs Williamson between the time of the 2013 will and her death, apart from the 2014 will, then if the 2014 will was invalid, the revocation of the 2013 will was ineffective. The result is that, unless there was some attack upon the validity of the 2013 will, the 2013 will would prevail. There was no such attack upon the validity of the 2013 will. Kara and Leah’s application came before Boddice J on 26 September 2019. By that point, Mr Pay had elected not to defend the application. Boddice J was urged by all parties to make a number of orders. His Honour revoked the grant of probate and ordered Mr Pay to bring the original of the grant of probate into the registry of the court. His Honour made various costs orders and ancillary orders. Importantly for present purposes, his Honour ordered: “3.Pursuant to s 6 Succession Act 1981 and rule 603(1)(h) of the Uniform Civil Procedure Rules 1999, subject to the formal requirements of the Registrar, Letters of Administration with the Will of Meryl Nola Williamson, deceased dated 22 March 2013 be granted to Australian Unity Trustees Limited.” After Boddice J made the orders, it became apparent that Mr Pay did not have the original of the 2013 will. Mr Ian Thompson, solicitor, acted for Kara and Leah in the application and he set about attempting to find the original of the 2013 will. The 2013 will was drawn by RetireLaw Pty Ltd, solicitors in Warriewood in New South Wales. Dawn Wong, solicitor, witnessed the will, describing herself as “Legal Practice Manager”. Sensibly, Ms Wong was Mr Thompson’s first point of inquiry.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mr Thompson’s inquiries also led him to Morton & Morton Solicitors of Hervey Bay and Geldard Sherrington Lawyers, also of Hervey Bay. However, all those solicitors advised Mr Thompson that they did not hold the original of the 2013 will.Consideration The applicants ask that the application be decided without oral hearing.[2] The letters of administration were granted by Boddice J on the assumption that the original will was available. That order was made after relevant parties had litigated issues including whether the 2013 will was the final valid will of Mrs Williamson. The present application is very much subsidiary to the main litigation determined by Boddice J and I can see no reason why the application cannot be determined without oral hearing.[3][2]Uniform Civil Procedure Rules 1999 (Qld), r 489.[3]Written submissions by Mr Thompson were filed on 23 March 2020. There is power to vary the orders of Boddice J given that at the time that his Honour made the orders he did not know that the original of the 2013 will could not be found.[4][4]Rule 668(1)(b) and Rankin v Agen Biomedical Ltd [1999] 2 Qd R 435 considering KGK Constructions Pty Ltd v East Coast Earthmoving Pty Ltd [1985] Qd R 13 which considered O 45 of the Supreme Court Rules. The court has jurisdiction to grant probate to a copy of the will.[5][5]Re Clayton (deceased) [1957] QWN 35; In the Will of Leonie Lyle Warren deceased [2014] QSC 101. In Re Ambrose,[6] I followed the judgment of Applegarth J in Frizzo v Frizzo[7] and thought that the preconditions for the admission to probate of a copy of a will were these:“In Frizzo v Frizzo, Applegarth J followed Cahill v Rhodes and held that five matters must be established for a successful application for the admission to probate of a copy will. These are:(i)there was actually a will;(ii)that will revoked all previous wills; (iii)the applicant overcomes the presumption that, if the will cannot be produced to the Court, it was destroyed by the testator with the intention of revoking it;(iv)there is evidence of the terms of the will; and(v)the will was duly executed.”[8][6][2019] QSC 3.[7][2011] QSC 107.[8]Re Ambrose [2019] QSC 3 at [6], references omitted. There is no doubt that the 2013 will existed. There are copies of it available. There is also no doubt that the 2013 will purported to revoke all previous wills. It expressly says as much. As a copy of the will is available, the terms of the will are clear and it is obvious from the copy that the will was duly executed. Where a testator was the last known person to have possession of a will and the will cannot be found, then there is a presumption that it was destroyed by the testator with the intention of revoking it.[9][9]In the Will of Leonie Lyle Warren deceased [2014] QSC 101. Here, Mrs Williamson did not have possession of the 2013 will. After instructing RetireLaw to prepare the will, she executed it and directed those solicitors to send the will to the proposed executor and trustee. Clearly, she intended the will to be maintained in safe custody until her death when it could be acted upon. Thereafter, the 2013 will, on Mrs Williamson’s instructions, passed through the hands of, it seems, various solicitors. Again, the clear intention was for the document to be safely in the hands of solicitors who could act upon it upon her death. I find that somewhere during the course of solicitors acting on Mrs Williamson’s instructions, the original of the will has gone missing.