- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Williamson v Pay  QSC 66
RONALD RAYMOND PAY
BS No 14093 of 2018
Supreme Court at Brisbane
9 April 2020
Application determined without oral hearing
It is ordered that:
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  QSC 107, followed
IBT Law for the applicant
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.
Variation of the orders is sought because the original of the will cannot be located.
Mrs Williamson died at Tiaro in Queensland on 22 February 2018. She made various wills during her lifetime. Two of these wills are relevant to the present application. They are:
- the will of 22 March 2013 (the 2013 will); and
- the will of 2 October 2014 (the 2014 will).
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.
Ms Wong informed Mr Thompson that RetireLaw held copies of various wills made by Mrs Williamson, including the 2013 will, but did not hold any originals. She informed Mr Thompson that all wills prepared by RetireLaw for Mrs Williamson were lodged with the New South Wales Trustee and Guardian. That of course made good sense because the New South Wales Trustee and Guardian was the executor named in the 2013 will.
Mr Thompson then made inquiries of the New South Wales Trustee and Guardian. Mr Thompson was advised that pursuant to an authority received from Mrs Williamson, the original of the 2013 will was sent to Collins & Thompson Solicitors on 11 April 2017. That information led Mr Thompson to contact Collins & Thompson.
Collins & Thompson told Mr Thompson that they had held the 2013 will and on 30 October 2014 they forwarded all documents to a Queensland solicitor. That information caused confusion because the New South Wales Trustee and Guardian had told Mr Thompson that they had not sent the will to Collins & Thompson until 11 April 2017. The New South Wales Trustee and Guardian then told Mr Thompson they had made a mistake and in fact the 2013 will had been sent to Collins & Thompson on 5 March 2014.
Further inquiries revealed that various documents held by Collins & Thompson, including the contents of Mrs Williamson’s safe custody packet were sent to Carswell & Company, solicitors of Maryborough. Those solicitors though advised Mr Thompson that they never received the 2013 will from Collins & Thompson.
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.
The applicants ask that the application be decided without oral hearing. 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.
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.
The court has jurisdiction to grant probate to a copy of the will.
“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:
there was actually a will;
that will revoked all previous wills;
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;
there is evidence of the terms of the will; and
the will was duly executed.”
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.
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.
There is no evidence of the manifestation by Mrs Williamson of any intention to revoke the 2013 will other than the 2014 will. Any express intention in the 2014 will to revoke the 2013 will was vitiated by Mrs Williamson’s lack of testamentary capacity.
It is appropriate to set aside order 3 made by Boddice J on 26 September 2019 and grant probate to the photocopy of the 2013 will. It is also appropriate that the applicants have their costs of the application paid on an indemnity basis from the estate.
It is ordered that:
- Order 3 made by Boddice J on 26 September 2019 be set aside.
- 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.
- 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.
 25 September 2003, 1 February 2006, 22 March 2013 and 2 October 2014.
Uniform Civil Procedure Rules 1999 (Qld), r 489.
 Written submissions by Mr Thompson were filed on 23 March 2020.
 Rule 668(1)(b) and Rankin v Agen Biomedical Ltd  2 Qd R 435 considering KGK Constructions Pty Ltd v East Coast Earthmoving Pty Ltd  Qd R 13 which considered O 45 of the Supreme Court Rules.
Re Clayton (deceased)  QWN 35; In the Will of Leonie Lyle Warren deceased  QSC 101.
  QSC 3.
  QSC 107.
Re Ambrose  QSC 3 at , references omitted.
In the Will of Leonie Lyle Warren deceased  QSC 101.
- Published Case Name:
Williamson v Pay
- Shortened Case Name:
Williamson v Pay
 QSC 66
09 Apr 2020
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 66||09 Apr 2020||Application to vary orders made by Boddice J granting letters of administration to Australian Unity Trustees Limited of the will of Mrs Williamson dated 22 March 2013 on the grounds the original cannot be located; application granted and orders varied such that the grant of the Letters of Administration be made on a copy of the will: Davis J.|