Loading...
Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Re Meredith

 

[2020] QSC 201

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Re Meredith [2020] QSC 201

PARTIES:

In the will of BEVAN STANLEY MEREDITH, deceased

FILE NO:

BS No 5924 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application on the papers

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

Orders made on 24 June 2020, reasons delivered on 15 July 2020

DELIVERED AT:

Brisbane

HEARING DATE:

Application determined without oral hearing

JUDGE:

Davis J

ORDERS:

  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 Bevan Stanley Meredith of Room 4, Azalea Wing, Symes Grove Home for the Aged, 333 Handford Road, Taigum, Queensland, that is exhibit A to the affidavit of Adrian Walter Brown filed on 2 June 2020, be admitted to probate until the original will or more authenticated evidence be brought into and left in the Registry.

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 of the last will of the deceased cannot be located – where the original was held by the deceased – where the deceased had, for many years, maintained a will – 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 deceased to revoke the will – whether it is appropriate to grant probate to a copy of the will

Uniform Civil Procedure Rules 1999, r 489

Allan v Morrison [1900] AC 604, cited

Cahill v Rhodes [2002] NSWSC 561, followed

Frizzo v Frizzo [2011] QSC 107, followed

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

SOLICITORS:

PMG Law for the applicant

  1. [1]
    The applicant, Christopher Robert Stanley, is the sole executor and trustee named in the will of Bevan Stanley Meredith (now deceased) dated 1 October 2017 (the 2017 will). 
  2. [2]
    Mr Stanley applied for probate of a copy of the 2017 will as the original cannot be located.  He sought to have the application determined without oral hearing pursuant to r 489(1) of the Uniform Civil Procedure Rules 1999 (Qld).
  3. [3]
    On 24 June 2020, I made the following orders:
  1. Pursuant to r 489(1) of the Uniform Civil Procedure Rules 1999 (Qld), this application proceed without an oral hearing.
  1. Subject to the formal requirements of the Registrar, the photocopy of the will of Bevan Stanley Meredith of Room 4, Azalea Wing, Symes Grove Home for the Aged, 333 Handford Road, Taigum, Queensland, that is exhibit A to the affidavit of Adrian Walter Brown filed on 2 June 2020, be admitted to probate until the original will or more authenticated evidence be brought into and left in the Registry.

History

  1. [4]
    Mr Meredith died on 17 December 2019 at the age of 92 years.  He spent about four decades in Papua New Guinea where he achieved the position of Archbishop of the Anglican Church.
  2. [5]
    In 1995, he returned to Australia and, until his death, he lived in Brisbane.  He never married and he has no known issue.
  3. [6]
    Debra Gayle Meredith is Mr Meredith’s niece.  She is a solicitor in practice in her own right in New South Wales.
  4. [7]
    Ms Meredith prepared a will which Mr Meredith executed on 11 August 1998 (the 1998 will).  The 1998 will was held by Ms Meredith in safe custody at her practice premises. 
  5. [8]
    A codicil to the 1998 will was prepared by Ms Meredith on Mr Meredith’s instructions and executed by him on 1 July 2011 (the 2011 codicil).  The 2011 codicil was also retained by Ms Meredith.
  6. [9]
    Mr Stanley met Mr Meredith when he returned to Brisbane in 1995.  In 2016, Mr Stanley assisted Mr Meredith to prepare a will.  That was executed on 18 May 2016 (the 2016 will).  The original was retained by Mr Stanley for safekeeping.
  7. [10]
    A copy of the 2016 will was emailed by Mr Stanley to Ms Meredith.  As the 2016 will revoked all former wills of Mr Meredith, she destroyed the 1998 will and the 2011 codicil.
  8. [11]
    In 2017, Mr Stanley assisted Mr Meredith to make the 2017 will.  After Mr Meredith executed the 2017 will, Mr Meredith retained the original and gave Mr Stanley a copy. 
  9. [12]
    By 2019, Mr Meredith was residing in an aged care facility in Brisbane, the Symes Grove Home for the Aged. 
  10. [13]
    On 11 December 2019, Mr Meredith suffered a heart attack and was admitted to the Prince Charles Hospital in Chermside.  On 12 December 2019, Mr Stanley visited him there.  They spoke of the 2017 will and some amendments were proposed.  Neither a new will nor a codicil to the 2017 will eventuated. 
  11. [14]
    Mr Meredith’s condition deteriorated, and he subsequently died on 17 December 2019.  No revocation or variation of the 2017 will was made.
  12. [15]
    After Mr Meredith’s death, his unit at Symes Grove was largely cleaned out by his nephew, Michael Tung Yep, his niece, Leanne Margaret Blood, and Ms Blood’s husband.  Mr Yep took possession of some of Mr Meredith’s items from Symes Grove, which he then gave to Mr Stanley.  Mr Stanley also went to Symes Grove himself and took possession of Mr Meredith’s remaining possessions.
  13. [16]
    The original of the 2017 will has not been located, despite the Symes Grove unit being cleaned out.  No other wills have been found. 
  14. [17]
    Mr Stanley seeks probate of a copy of the 2017 will.  The application for probate has been advertised and that has not sparked interest from any party.
  15. [18]
    An outline of submissions was prepared by Mr Stanley’s solicitor and I rely on that.  There is no reason why the application cannot be dealt with on the papers and without oral hearing.

Determination

  1. [19]
    In Frizzo v Frizzo,[1] Applegarth J followed the New South Wales decision of Cahill v Rhodes[2] and held that five matters must be established for the admission to probate of a copy will.[3]  These are:
  1. there was actually a will;
  1. that will revoked all previous wills;
  1. the applicant overcomes the presumption[4] that, if the original will cannot be produced to the court, it was destroyed by the testator with the intention of revoking it;
  1. there is evidence of the terms of the will; and
  1. the will was duly executed.
  1. [20]
    A copy of the 2017 will is in existence.  The two witnesses to the will are Hilary Elizabeth Baart and Adrian Walter Brown.  Both have sworn affidavits in the present application which each exhibit a copy of the 2017 will.  Both say that they witnessed Mr Meredith sign the will and both say they were present when all three of them signed the document.
  2. [21]
    Clause 1 of the 2017 will states:

“I HEREBY REVOKE all former Wills and Testamentary dispositions heretofore made by me AND DECLARE this to be my Last Will and Testament.”

  1. [22]
    There is solid evidence, which I accept, that the 2017 will was duly executed, it revoked all previous wills, and the terms of the will are shown by the photocopy which is in evidence.[5]
  2. [23]
    The real issue here is whether the applicant has overcome the presumption that the original of the will was destroyed by Mr Meredith with the intention of revoking it.
  3. [24]
    Mr Meredith made various wills over the years.  He was obviously conscious to leave a will. 
  4. [25]
    Mr Meredith and Mr Stanley spoke about the 2017 will shortly before Mr Meredith’s death.  That indicated an awareness by Mr Meredith that the 2017 will existed at that point.
  5. [26]
    It seems to me that there are two realistic possibilities.  The first is that the 2017 will has been misplaced after Mr Meredith’s death and during the cleaning out of his residence at Symes Grove.  The second is that Mr Meredith, after speaking with Mr Stanley about amending the 2017 will, destroyed it with the intention of revoking it.
  6. [27]
    On the balance of probabilities, it is far more likely that the will has been misplaced.  Although Mr Meredith may have been considering amending or revoking the 2017 will, there is nothing to suggest that he would have revoked it leaving himself at risk of dying intestate.  He had maintained a will for many years and he must have known that he was close to the end of his life.
  7. [28]
    I am satisfied that the 2017 will, a copy of which is in evidence before me, is the last will and testament of Mr Meredith.
  8. [29]
    For these reasons, I made the orders which I did.

Footnotes

[1]  [2011] QSC 107.

[2]  [2002] NSWSC 561.

[3] Cahill v Rhodes [2002] NSWSC 561 at [55].

[4] Allan v Morrison [1900] AC 604 and In the will of Leonie Lyle Warren deceased [2014] QSC 101.

[5]  Exhibit A to the Affidavit of Adrian Walter Brown filed on 2 June 2020 and Exhibit A to the Affidavit of Hilary Elizabeth Baart filed on 2 June 2020.

Close

Editorial Notes

  • Published Case Name:

    Re Meredith

  • Shortened Case Name:

    Re Meredith

  • MNC:

    [2020] QSC 201

  • Court:

    QSC

  • Judge(s):

    Davis J

  • Date:

    15 Jul 2020

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.