In the Will of Mary Elizabeth Patchett (deceased)
[2021] QSC 269
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- Notable Unreported Decision
- In the Will of Mary Elizabeth Patchett (deceased)[2021] QSC 269
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In the Will of Mary Elizabeth Patchett (deceased)[2021] QSC 269
In the Will of Mary Elizabeth Patchett (deceased)[2021] QSC 269
SUPREME COURT OF QUEENSLAND
CITATION: | In the Will of Mary Elizabeth Patchett (deceased) [2021] QSC 269 |
PARTIES: | NEIL SIMON PATCHETT (applicant) |
FILE NO: | BS 8907 of 2021 |
DIVISION: | Trial Division |
PROCEEDING: | Application on the papers |
ORIGINATING COURT: | Supreme Court of Queensland |
DELIVERED ON: | 18 October 2021 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers |
JUDGE: | Bradley J |
ORDER: |
|
CATCHWORDS: | SUCCESSION – MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – WHEN LOST, MISLAID, DESTROYED OR NOT AVAILABLE – where an original will was executed and four original pages and two copied pages provided to a named executor – where the missing two original pages were misplaced and never located – where the only evidence of the will is the combination of the original and copied pages provided to the executor – whether the copy of the will should be admitted to probate Uniform Civil Procedure Rules 1999 (Qld) r 489 (1), r 601 (1)(c) Cahill v Rhodes [2002] NSWSC 561, considered Frizzo & Anor v Frizzo & Ors [2011] QSC 107, followed |
SOLICITORS: | McInnes Wilson Lawyers for the applicant |
- [1]The applicant, Neil Simon Patchett, seeks an order that the document comprising four original pages and two copied pages of the Will of Mary Elizabeth Patchett (the deceased) be admitted to probate. The applicant seeks that this application be decided without an oral hearing. For the reasons set out below, I am satisfied that the application should proceed without an oral hearing, pursuant to rule 489(1) of the Uniform Civil Procedure Rules 1999 (Qld).
- [2]The deceased executed a Will (the Will) on 2 October 2014 in the presence of two witnesses, Kirsten Jensen and Helen Stowasser. It appears Ms Jensen was then a neighbour, residing at 15 Moreton Avenue, Wynnum. Ms Stowasser then lived at Mapleton. The Will bears no mark indicating by whom it was prepared. The applicant has deposed to typing the Will on a device at the deceased’s home in about August 2014. The deceased advised the applicant of her intentions, which he typed “word for word”. The applicant then printed the Will on the deceased’s printer at her home and left it with the deceased for her to sign in front of her witnesses.
- [3]The Will appoints the applicant, who is a child of the deceased, as her executor and trustee of the Will. It makes other provision in the event that the applicant did not survive the deceased, which did not occur. It revokes all former wills. Apart from specific gifts the deceased wished to bestow on named children, grandchildren, a friend, and two charitable organisations, the deceased’s residuary estate is shared equally by her three children, including the applicant.
- [4]After the Will was signed and witnessed, the deceased gave it to the applicant, bound together only by a metal paperclip in the top right-hand corner. The applicant placed it in a plastic sleeve and in a filing folder in his office in the same condition it had been handed to him. The applicant did not remove the paperclip, copy the document or otherwise deal with it. It remained in that condition, in the plastic sleeve in the filing folder until after the deceased passed away. Then the applicant removed it to enable him to administer the estate.
- [5]The Will bears a rectangular impression in the top right-hand corner, with rounded edges, that is of the dimensions of a paperclip. It has rust-coloured marks on the first page that align with the impression. The impression is found in the same place, and in the same dimensions, on each of the six pages of the will.
- [6]On 4 August 2021, an application for probate was filed on behalf of the applicant. The Will was lodged with the application. On 11 August 2021, after examination of the Will, the deputy registrar identified impression and rust-coloured markings on the Will. The deputy registrar also identified that pages 4 and 6 of the Will are not original, but copies. This is evidenced by the red coloured underlining at the top of pages 1, 2, 3 and 5 and the black underlining on pages 4 and 6.
- [7]Page 4 of the Will records some specific wishes as to gifts to six named grandchildren, two daughters in law and a friend. The text at the top of page 4 is a continuation of that at the foot of page 3 and the same is the case with the text at the foot of page 4 and the top of page 5.
- [8]Page 6 of the Will records the name, address and occupation of each of the two witnesses, whose original signatures are at the foot of page 5 together with the original signature of the deceased and the date of the Will.
- [9]On 25 August 2021, the applicant filed an affidavit of plight, condition and finding explaining the impressions and rust-coloured damage to the Will.
- [10]The applicant searched in all likely and unlikely places in an attempt to locate the original pages 4 and 6 of the Will, without success. The applicant has discussed the matter with his siblings. None is aware of any other original pages, versions or copies of the Will.
- [11]The applicant has concluded that, after the deceased executed the Will in the presence of the two witnesses, and before handing him the Will, the deceased likely made a photocopy of the executed and witnessed Will and, in the course or assembling the copy and reassembling the Will, mistakenly included the copies of pages 4 and 6 in the Will and the original of those pages with the copy. In the circumstances, that conclusion seems justified.
- [12]On 13 October 2021, this application was filed.
- [13]The court has jurisdiction to grant probate in circumstances, such as the present, where a registrar cannot, due to r 601(1)(c). See, for example, Re Clayton (deceased) [1957] QWN 35.
- [14]The deceased would have been about 83 years of age when the Will was made. At the time, she lived in her home at 14 Moreton Avenue, Wynnum. She survived for another six years, dying in the Redland Hospital, Cleveland on 24 December 2014 at 89 years of age. Three causes of death appear on her death certificate in this order: (a) Intercranial haemorrhage, (b) Fall, and (c) Alzeimer’s disease.
- [15]The applicant has deposed that, to the best of his knowledge, information and belief, the deceased had testamentary capacity at the time of executing the Will. The known objective facts, the date the Will was made, the deceased’s age then and at her death and her causes of death give no reason to conclude otherwise.
- [16]In Frizzo v Frizzo [2011] QSC 107 at [161]-[165], Applegarth J, following the decision of Campbell J in Cahill v Rhodes [2002] NSWSC 561 at [55], identified five matters an applicant must establish to succeed in admitting a copy of a Will to probate. Those matters are:
- (a)that there was actually a Will;
- (b)that the Will revoked all previous Wills;
- (c)that the applicant overcomes the presumption that a Will, which cannot be produced to the Court, was destroyed by the testator with the intention of revoking it;
- (d)that there is evidence of the terms of the Will; and
- (e)that the Will was duly executed.
- (a)
- [17]Here the original Will has not been “lost”, at least not completely. However, considering the five matters identified by Applegarth J, the following may be concluded:
- (a)The original pages 1, 2, 3 and 5 of the Will and the copies of pages 4 and 6 produced by the applicant is evidence that there was a Will.
- (b)The original pages are also evidence that, by its terms, the deceased revoked all former wills.
- (c)The combination of the original and the two copied pages of the Will identifies the terms of the Will.
- (d)Where, as here, four original pages of the Will were handed by the deceased to the applicant (together with two copy pages) it is doubtful the presumption of destruction arises, as only two pages of the whole Will may be last traced to the possession of the deceased: see Re Warren [2014] QSC 101 at [11] (Peter Lyons J). In any event, the evidence of the applicant’s searches and enquiries, his evidence of the form in which the pages were provided to him by the deceased and his retention of them in the same form, combined with the physical evidence in the form of the original and copied pages, is sufficient to overcome any presumption that the deceased destroyed part of the Will with the intention of revoking it.
- (e)The combination of the original pages and the two copied pages is evidence of the terms of the Will.
- (f)The original page 5 of the Will, bearing the deceased’s signature, the date and the signatures of the two witnesses, together with the other original and the two copy pages, is evidence that the Will was duly executed.
- (a)
- [18]It follows that it is appropriate for the Court to grant probate of the combination of the original pages 1, 2, 3 and 5 and the copies of pages 4 and 6 of the Will until the original pages 4 and 6 or more authenticated evidence is brought into Court.
- [19]On 2 July 2021, a notice was published in the Queensland Law Reporter. By it, the applicant gave notice of his intention to apply for a grant of probate of the Will. On 24 June 2021, the applicant had served a copy of that notice on the Public Trustee, by email. In the circumstances, it is appropriate to make an order admitting the copy of the Will to probate without requiring an oral hearing.
Subject to the formal requirements of the Registrar, the copy of the Will of Mary Elizabeth Patchett of E. M. Tooth Residential Aged Care Home, 162 Oceana Terrace, Manly in the State of Queensland that is Exhibit “A” to the affidavit in support of probate application of Neil Simon Patchett, affirmed 8 October 2021, be admitted to probate until the original Will or more authenticated evidence be brought into and left in the Registry.