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  • Unreported Judgment

Re Harvey-Hall

 

[2020] QSC 175

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Re Harvey-Hall [2020] QSC 175

PARTIES:

IN THE MATTER OF RUTH CROLL (DECEASED)

DONNA HARVEY-HALL

(applicant)

FILE NO/S:

BS No 5809 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application on the papers

DELIVERED ON:

16 June 2020

DELIVERED AT:

Brisbane

HEARING DATE:

Application on the papers

JUDGE:

Williams J

ORDER:

  1. Pursuant to r 489(1) of the Uniform Civil Procedure Rules 1999 (Qld), this application proceed without an oral hearing.
  2. Subject to the formal requirements of the Registrar, the photocopy of the Will of Ruth Croll, late of Unit 3, 15 Fifth Avenue, Sandgate in the State of Queensland dated 17 July 2013 that appears as Exhibit DHH-1 to the affidavit of Donna Harvey-Hall sworn 12 May 2020 be admitted to probate and issued to Donna Harvey-Hall as sole executor until the Original Will or more authenticated evidence be brought into and left in the Registry.
  3. The applicant’s costs of and incidental to this application be paid out of the Deceased’s estate on the indemnity basis.

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 original will of the testator was lost – where the applicant applied for a photocopy of the original will to be admitted to probate and issued to the applicant as sole executor –– where there is no doubt that the original will existed – where there is no evidence of any intention by the testator to revoke the will – whether the presumption that, if the will cannot be produced to the Court, it was destroyed by the testator with the intention of revoking it applies in the circumstances – whether it is appropriate to grant probate to a copy of the original will

Uniform Civil Procedure Rules 1999 (Qld), r 7, r 489, r 491

Frizzo v Frizzo [2011] QSC 107, cited

In the Will of Leonie Lyle Warren deceased [2014] QSC 101, cited

Re Ambrose [2019] QSC 3, cited

Re Clayton (deceased) [1957] QWN 35, cited

Williamson v Pay [2020] QSC 66, cited

COUNSEL:

R Hii for the applicant

SOLICITORS:

Stewart, Burr and Mayr Lawyers

  1. [1]
    This is an application for an order that a photocopy of the Will of Ruth Croll dated 17 July 2013 be admitted to probate.
  2. [2]
    The application seeks the following orders:
    1. (a)
      Pursuant to r 489(1) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), this application proceed without an oral hearing.
    2. (b)
      Pursuant to r 7 of the UCPR, the time for filing and hearing this application be abridged.
    3. (c)
      Subject to the formal requirements of the Registrar, the photocopy of the Will of Ruth Croll, late of Unit 3, 15 Fifth Avenue, Sandgate in the State of Queensland dated 17 July 2013 that appears as Exhibit DHH-1 to the affidavit of Donna Harvey-Hall sworn 12 May 2020 be admitted to probate and issued to Donna Harvey-Hall as sole executor until the Original Will or more authenticated evidence be brought into and left in the Registry.
    4. (d)
      The applicant’s costs of and incidental to this application be paid out of the Deceased’s estate on the indemnity basis.
  3. [3]
    In support of the application, the following material is read:
    1. (a)
      Application for Probate filed 29 May 2020.
    2. (b)
      Application filed 29 May 2020.
    3. (c)
      Affidavit of Donna Harvey-Hall sworn 12 May 2020 (first Harvey-Hall affidavit).
    4. (d)
      Affidavit of Nadia Hinella Kapi sworn 12 May 2020.
    5. (e)
      Affidavit of Peter Anthony McNamara OAM sworn 13 May 2020.
    6. (f)
      Affidavit of Chris White sworn 22 May 2020.
    7. (g)
      Affidavit of Kevin Robert Dean OAM sworn 25 May 2020.
  4. [4]
    Further, the applicant provided a second affidavit of Donna Harvey-Hall sworn 9 June 2020 (second Harvey-Hall affidavit) in response to a request for further information following my review of the material in support of the application on the papers. 

Potential interested parties

  1. [5]
    Following a review of the first Harvey-Hall affidavit, it became apparent that there may be other individuals with a relevant interest in, or knowledge of, the Deceased’s will.  This included Ms Harvey-Hall’s biological sister, Terri Hurrell, her half-brother, Peter Croll, and the Deceased’s husband from her second marriage, Gordon Croll.[1]  At the date of the hearing of this matter on the papers, no evidence was before the Court in relation to these individuals (other than identifying them and their relationship to the Deceased). 
  2. [6]
    On 3 June 2020, I caused my Associate to email the applicant requesting that the applicant:
    1. (a)
      serve the application and supporting material on Ms Hurrell and Peter Croll and request any response to be provided within 5 days; and
    2. (b)
      file a further affidavit providing details of service, any responses and also addressing the circumstances of the Deceased’s second marriage by Wednesday, 10 June 2020.
  3. [7]
    On 9 June 2020, the applicant filed the second Harvey-Hall affidavit, in which Ms Harvey-Hall deposed that:
    1. (a)
      On 3 March 2020, her instructing solicitors caused an email to be sent to Peter Croll attaching a copy of the material in these proceedings.[2] 
    2. (b)
      On 4 March 2020, her instructing solicitors caused an email to be sent to Ms Hurrell attaching a copy of the material in these proceedings.[3]
    3. (c)
      No response was received from either Peter Croll or Ms Hurrell and neither have filed any affidavit in this proceeding.[4]
    4. (d)
      To her knowledge, Gordon Croll pre-deceased the Deceased about 15 to 20 years ago.[5] 
  4. [8]
    Accordingly, considering the length of time that has passed between Peter Croll and Ms Hurrell receiving the material and the fact that no response has been received, I am satisfied that it is appropriate to proceed to consider the application. 

Application on the papers

  1. [9]
    The first issue to be considered is whether it is appropriate for this matter to be dealt with without an oral hearing pursuant to r 489 UCPR.
  2. [10]
    Rule 489 UCPR states as follows:

489  Proposal for decision without oral hearing

  1. (1)
    A party making an application, including an application in a proceeding, may propose in the application that it be decided without an oral hearing.
  1. (2)
    If the applicant proposes the application be decided without an oral hearing, the court must decide the application without an oral hearing unless—
  1. (a)
    under rule 491, the court considers it inappropriate to do so; or
  1. (b)
    under rule 494, the respondent requires an oral hearing; or
  1. (c)
    under rule 495, the applicant abandons the request for a decision without an oral hearing; or
  1. (d)
    the Chief Justice or Chief Judge suspends the operation of this rule by direction.”
  1. [11]
    Subsections (b), (c) and (d) are not relevant to the current circumstances.  The application was originally made on an ex parte basis.
  2. [12]
    Subsection (a) refers to r 491 which states:

491  Court may decide that decision without an oral hearing is inappropriate

  1. (1)
    The court may decide at any time that an application is inappropriate for decision without an oral hearing.
  1. (2)
    If the court decides this before the date set for deciding the application, the court—
  1. (a)
    must immediately notify the parties to the application of the decision by telephone or in some other way; and
  1. (b)
    may set a date for hearing.”
  1. [13]
    No specific submissions have been made as to the basis upon which it is appropriate for this matter to be dealt with on the papers.  However, given the nature of the application, I am satisfied that it is appropriate for this application to be dealt with without an oral hearing.

Application for an abridgment of time

  1. [14]
    The applicant also seeks an abridgment of time for filing and hearing this application.
  2. [15]
    Rule 7(2) UCPR states as follows:

“If a time set under these rules or by order, including a time for service, has not ended, the court may shorten the time.”

  1. [16]
    The question is whether an abridgment of time is actually required.  Rule 490 UCPR deals with a procedure for making an application without an oral hearing and states as follows:

490  Procedure for making application

  1. (1)
    If the applicant proposes an application be decided without an oral hearing, the application must—
  1. (a)
    include a notice in the approved form; and
  1. (b)
    be accompanied by a draft order and written submission in support.
  1. (2)
    The registrar must set a date for deciding the application which is at least 10 days after the application is expected to be served on the respondent.
  1. (3)
    If the application is made without notice to a party—
  1. (a)
    subrule (2) and rules 492 to 495 do not apply; and
  1. (b)
    the registrar must set as the date for deciding the application the first date convenient to the court.
  1. (4)
    If the parties resolve all or part of the application before the date for deciding the application, each party must give the court written notice of the extent to which the application is resolved and the orders the parties have agreed to seek.”
  1. [17]
    The application is accompanied by a draft order and written submissions in support but does not include a notice in the approved form.  This may be explicable by the fact that the application was originally made on an ex parte basis and that it is not envisaged that the application would be served on any party.
  2. [18]
    The relevant time requirement is set out in r 490(2) which states that, at least 10 days after the application is expected to be served, the Registrar will set a date for deciding the application.  However, subrule (3) clearly excludes that rule where the application is made without notice to a party.  Under r 490(3), the timing in subrule (2) does not apply, nor do rr 490 to 495 apply.  In these circumstances, the Registrar can set a date for deciding the application, being the first date convenient to the Court.
  3. [19]
    Accordingly, I find that an abridgment for time for filing and hearing this application is not required.
  4. [20]
    Further, given the time that has now passed since the matter was listed for hearing on the papers to enable the application and supporting materials to be served on potential interested parties and to provide time for any responses to be provided, an abridgement of time is no longer an issue.

Chronology and relevant facts

  1. [21]
    The relevant chronology of background facts are as follows:
    1. (a)
      On 17 July 2013, Ruth Croll (the Deceased) executes a will (Original Will) in the presence of Peter McNamara OAM and Kevin Dean OAM.[6]
    2. (b)
      In September 2016, the Deceased gives the Original Will to the applicant.  The applicant places the Original Will in her home-office for safekeeping.[7]
    3. (c)
      Further, in or about September 2016 the Deceased gives a photocopy of the Original Will to her granddaughter, Ms Kapi.[8]
    4. (d)
      In approximately September 2019, the applicant sights an envelope containing the Original Will during a visit from Papua New Guinea (where she spends some of her time).[9]
    5. (e)
      In late September 2019 or early October 2019, Ms Kapi moves into the applicant’s home.  Ms Kapi undertakes cleaning of the applicant’s home-office and it is likely that Ms Kapi accidently throws away an envelope with the Original Will.[10]
    6. (f)
      On 25 November 2019 the Deceased dies.[11]
    7. (g)
      On 6 April 2020, Ms Kapi locates the photocopy of the Original Will amongst her documents.[12]
    8. (h)
      On 17 April 2020, the applicant gives notice of application for probate to the Public Trustee.[13]
    9. (i)
      On 24 April 2020, the applicant advertises notice of intention to apply for probate with the Law Reporter.[14]
  2. [22]
    The two witnesses to the Original Will have been provided with a copy of the photocopy of the Original Will.  Both Mr Kevin Dean OAM and Mr Peter McNamara OAM have considered the photocopy of the Original Will. 
  3. [23]
    Mr Kevin Dean OAM states as follows:

“6. I have carefully perused and inspected Exhibit KRD-1, the document purporting to be and contain the last will of the deceased, and believe it to be the same document that I witnessed the deceased sign in my presence on 17 July 2013.”

  1. [24]
    Further, Mr Peter McNamara OAM states as follows:

“6. I have carefully perused and inspected Exhibit PAM-1, the document purporting to be and contain the last will of the deceased, and believe it to be the same document that I witnessed the deceased sign in my presence on 17 July 2013.”

  1. [25]
    Ms Harvey-Hall, the applicant, deposes to the fact that in or about early September 2016, her mother gave her the Original Will during one of her visits to her mother’s home.  She recalls her mother asking her not to read it.  However, she did have a look at the contents of the envelope.
  2. [26]
    At paragraph 15(c) of her affidavit, Ms Harvey-Hall states as follows:

“[N]otwithstanding her comments, curiosity got the better of me and I looked inside the envelope when I reached home.  I took out the two pieces of paper and noticed that they were not stapled or bound together and thought to myself ‘this must be mum’s will’.  The photocopy of the Will which is exhibit DHH-1 to this affidavit is identical to the document that I saw that day.”

  1. [27]
    The document at Exhibit DHH-1 is a copy of the photocopy of the Original Will that was located by Ms Kapi in her papers.  At paragraph 24, Ms Harvey-Hall deposes as follows:

“In early April 2020, my daughter Nadia gave me a photocopy of my mother’s Will she found amongst her own papers.  The document Nadia gave me is the same document as exhibit DHH-1.”

  1. [28]
    Despite extensive searches, the Original Will has not been able to be located in Ms Harvey-Hall’s papers.

Relevant authorities

  1. [29]
    The Court has jurisdiction to grant probate to a copy of a will.[15]
  2. [30]
    The preconditions for the admission to probate over a copy of a will have been summarised on a number of occasions, and most recently in the decision of Williamson v Pay[16] by Davis J of this Court.  In that case, his Honour summarised the preconditions as follows at [21]:[17]

“… I followed the judgment of Applegarth J in Frizzo v Frizzo[18] and thought that the preconditions for the admission of 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:

  1. (i)
    there was actually a will;
  1. (ii)
    that will revoked all previous wills;
  1. (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;
  1. (iv)
    there is evidence of the terms of the will; and
  1. (v)
    the will was duly executed.’”

Consideration

  1. [31]
    It is necessary to consider each of the preconditions in the current circumstances.
  2. [32]
    In respect of preconditions (i), (ii), (iv) and (v), these are all satisfied.  Clearly, the Original Will existed and a copy was made of it.  Further, there is no doubt that the Original Will purported to revoke all previous wills. 
  3. [33]
    The authenticity of the photocopy has been verified by testimony of the two witnesses to the Original Will, Mr Peter McNamara OAM and Mr Kevin Dean OAM, who believe it to be identical to the Original Will executed by the Deceased.[19] 
  4. [34]
    The photocopy of the Original Will contains a clause revoking all previous wills and other testamentary instruments.
  5. [35]
    Further, there is evidence before the Court that inquiries have been made and there is no evidence the Deceased executed any document revoking the Original Will dated 17 July 2013.  Further, inquiries have been made with the RSL (where the Deceased executed the lost Original Will) and also the nursing home where the Deceased resided before her death.  No further wills or testamentary instruments have been located.[20]
  6. [36]
    The remaining issue to be considered is whether the applicant overcomes the presumption that, if the Original Will cannot be produced to the Court, it was destroyed by the testator with the intention of revoking it.
  7. [37]
    It has been recognised that, in certain circumstances, this presumption does not arise.
  8. [38]
    In the matter of In the Will of Leonie Lyle Warren deceased,[21] his Honour Justice P Lyons stated:

[11] A testator may revoke a will, by destroying it, with the intention of revoking it.[22]  Reference is sometimes made to a presumption, said to be that when a will has not been produced, it is presumed that it has been destroyed, and, it would seem, revoked.[23]  In my view, the relevant presumption is more accurately stated in Lee[24] as follows:

‘… the law presumes that, if a will last traced to the possession of the deceased testator cannot be found, it was destroyed by the testator with the intention of revoking it.’

[12]  Here the will was last traced to the possession of Creevey Russell Lawyers. It seems to me that the presumption does not arise. In any event, the evidence demonstrates that the absence of the will is accounted for by its being lost by Creevey Russell Lawyers, which would be sufficient to rebut the presumption, if it arose.”

  1. [39]
    On the current facts, the applicant submits that the presumption that the Original Will was destroyed does not arise in the present circumstances because the Will can be last traced to the applicant’s possession rather than that of the Deceased.
  2. [40]
    Relevantly, the affidavit evidence shows:
    1. (a)
      The Original Will remained in the applicant’s possession from September 2016 after the Deceased gave it to her in an unmarked envelope, until at least September 2019.[25]
    2. (b)
      After receiving the unmarked envelope, the applicant inspected its contents and recognised it as the Deceased’s Original Will.  The applicant then placed the envelope on a folder containing documents regarding the Deceased in her home.
    3. (c)
      The applicant last saw the envelope containing the Original Will in or about September 2019 before the Deceased passed away and her daughter moved into her property.[26]
    4. (d)
      The applicant’s daughter, Ms Kapi, believes she accidently disposed of the envelope containing the Deceased’s Original Will between late September 2019 and early October 2019 after she moved into the property.
    5. (e)
      Ms Kapi does not specifically recall seeing the Original Will whilst tidying up the property but despite extensive searches, the applicant and Ms Kapi have been unable to locate the Original Will.[27] 
  3. [41]
    In the circumstances, it is open to infer that the Original Will was in the possession of the applicant and was accidently thrown away by Ms Kapi.  I accept the explanation provided by the applicant and Ms Kapi as being reasonable and a likely reason for the absence of the Original Will in the circumstances.
  4. [42]
    In the circumstances, I am satisfied that it is appropriate and just to make the orders sought.

Orders

  1. [43]
    I order that:
  1. Pursuant to r 489(1) of the UCPR, this application proceed without an oral hearing.
  2. Subject to the formal requirements of the Registrar, the photocopy of the Will of Ruth Croll, late of Unit 3, 15 Fifth Avenue, Sandgate in the State of Queensland dated 17 July 2013 that appears as Exhibit DHH-1 to the affidavit of Donna Harvey-Hall sworn 12 May 2020 be admitted to probate and issued to Donna Harvey-Hall as sole executor until the Original Will or more authenticated evidence be brought into and left in the Registry.
  3. The applicant’s costs of and incidental to this application be paid out of the Deceased’s estate on the indemnity basis.

Footnotes

[1]  First Harvey-Hall affidavit at [4].

[2]  Second Harvey-Hall affidavit at [3].

[3]  Second Harvey-Hall affidavit at [4].

[4]  Second Harvey-Hall affidavit at [8].

[5]  Second Harvey-Hall affidavit at [10]. 

[6]  Exhibit DHH-1 to First Harvey-Hall affidavit; McNamara affidavit at [4]; Dean affidavit at [4].

[7]  First Harvey-Hall affidavit at [15(c)-(d)].

[8]  Kapi affidavit at [6].

[9]  First Harvey-Hall affidavit at [17].

[10]  Kapi affidavit at [17].

[11]  First Harvey-Hall affidavit at [3] and Exhibit DHH-2.

[12]  Kapi affidavit at [20]-[22].

[13]  White affidavit at [2].

[14]  White affidavit at [1].

[15] Re Clayton (deceased) [1957] QWN 35; In the Will of Leonie Lyle Warren deceased [2014] QSC 101; Frizzo v Frizzo [2011] QSC 107.

[16]  [2020] QSC 66.

[17]  Quoting from Re Ambrose [2019] QSC 3 at [6].

[18]  [2011] QSC 107.

[19]  McNamara affidavit at [6] and Dean affidavit at [6].

[20]  First Harvey-Hall affidavit at [27]-[29].

[21]  [2014] QSC 101.

[22]  [Alun A Preece, Lee's Manual of Queensland Succession Law (Lawbook Co, 7th ed, 2013)] at [5.200].

[23]  See for example Cahill at [55].

[24]  At [5.220]

[25]  First Harvey-Hall affidavit at [15]-[24].

[26]  First Harvey-Hall affidavit at [17].

[27]  First Harvey-Hall affidavit at [20] and [26]-[29]; Kapi affidavit at [11]-[13].

Close

Editorial Notes

  • Published Case Name:

    Re Harvey-Hall

  • Shortened Case Name:

    Re Harvey-Hall

  • MNC:

    [2020] QSC 175

  • Court:

    QSC

  • Judge(s):

    Williams J

  • Date:

    16 Jun 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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