Re Kenneth George Smith (deceased)
[2021] QSC 305
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- Unreported Judgment
- Re Kenneth George Smith (deceased)[2021] QSC 305
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Re Kenneth George Smith (deceased)[2021] QSC 305
Re Kenneth George Smith (deceased)[2021] QSC 305
SUPREME COURT OF QUEENSLAND
CITATION: | Re Kenneth George Smith (deceased) [2021] QSC 305 |
PARTIES: | JANICE ANNE SMITH (applicant) |
FILE NO/S: | BS 13447 of 21 |
DIVISION: | Trial Division |
PROCEEDING: | Application on the papers |
ORIGINATING COURT: | Supreme Court of Queensland at Brisbane |
DELIVERED ON: | On the papers (26 November 2021) |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers |
JUDGE: | Brown J |
ORDER: | The order of the Court is that:
|
CATCHWORDS: | SUCCESSION – MAKING OF A WILL – 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 deceased cannot be located – where a copy of the Will exists – whether the applicant can overcome the presumption that the deceased destroyed the Will Frizzo & Anor v Frizzo & Ors [2011] QSC 107, applied |
SOLICITORS: | Colville Johnstone Lawyers for the applicant |
- [1]An order is sought that probate be given to Janice Anne Smith of a copy of the Will of Kenneth George Smith dated 15 January 2020 (“the Will”).
- [2]The original Will has not been able to be located. The evidence shows that the Will was prepared by Matthew Love Family Lawyers. The applicant is the ex-wife of the deceased and mother of two of his children. However, the Will was made after the divorce of the applicant and the deceased. They remained on good terms.
- [3]Following the deceased’s passing, the applicant inspected papers in his possession. She located a copy of the Will dated 15 January 2020, but not an original Will. She located a letter from Matthew Love Family Lawyers of the same date, confirming that the original Will was to be held in safe custody of Matthew Love Family Lawyers. The applicant indicates that she knew that the deceased had appointed her as executor and that at no stage did he indicate that he had removed the original Will from the safe custody of Matthew Love Family Lawyers, or revoked the Will.
- [4]An affidavit has been provided by Leonard Watt of Becker Watt Lawyers Pty Ltd. He was the principal of Love Family Lawyers, formerly Matthew Love Family Lawyers which was acquired by his firm. He identified that the solicitor who took the instructions from the deceased no longer works with his firm but was an associate at the time. The deceased had attended the firm in November 2019. Mr Watt noted that the Will was witnessed by Ms Campbell (the associate) and Ms Briana Saban who, at the time, was employed as a paralegal/receptionist. Ms Saban is no longer employed by the firm. Mr Watt, however, recognises both signatures. He stated that the normal practice at the time, and still is, is that once the will is executed, a photocopy is provided to the client and the original will is then entered into safe custody. At the time that the deceased’s Will was being prepared, Matthew Love Family Lawyers had been purchased and all of the safe custody packages, which were located under the house of the former principal, Mr Matthew Love, were being relocated. A careful system was in place for the relocation. Despite searches, no manual card or computer entry was located for the deceased’s Will. Searches have been carried out for the original Will but they have been unsuccessful. Mr Watt could confirm, however, that a copy of the signed Will was held in the legal practice software.
- [5]The solicitors acting on behalf of the applicant wrote to each of the deceased’s children to ascertain whether they would consent to the present application, which they did. The letter seeking their consent stated that only a copy of the Will had been located and the whereabouts of the original was unknown. All of the deceased’s children, who are the relevant beneficiaries under his Will, consented to the present application. The applicant was not a beneficiary under the Will.
- [6]In order to establish that probate can be granted in relation to a copy of the Will, there are five matters which must be satisfied. These were summarised by Applegarth J in Frizzo & Anor v Frizzo & Ors.[1] Relevantly, it must be established that:
- (a)there was actually a will or document purporting to embody the testamentary intentions of a deceased person;
- (b)it must be shown that the document revoked all previous wills;
- (c)the presumption that when a will is not produced, it has been destroyed, must be overcome;
- (d)there must be evidence of the will’s terms; and
- (e)there must be either evidence of due execution or that the deceased person intended the document to constitute his or her will.
- (a)
- [7]In the present case, four out of the five requirements are established by the terms of the copy Will itself, which has been duly executed by the deceased and witnessed. The Will revokes all previous Wills and sets out the terms of the Will, which provides for the disposition of the deceased’s estate.
- [8]As to the question of whether the presumption that the original Will has been destroyed has been overcome by the applicant, the evidence supports the fact that, more likely than not, the original Will of the deceased was kept by the firm Matthew Love Family Lawyers and either was not placed into safe custody in accordance with the usual system, or was misplaced in the transition to the new firm and changeover of records. This is consistent with the letter from Matthew Love Family Lawyers which confirmed “we note that you wish to keep your original Will in our safe custody”. The letter attached two copies of the deceased’s Will dated 15 January 2020. The fact that the letter provided by Matthew Love Family Lawyers was found at the deceased’s home with a copy Will is also consistent with the fact that the solicitors were maintaining the original Will and he kept the letter with the copy Will so the original could be located. Given the agreement of the beneficiaries to the present order, where they were notified that the original Will could not be located, I infer that none of them have the original Will.
- [9]In the circumstances, I am satisfied that the presumption that the deceased destroyed his Will has been overcome.
- [10]In all the circumstances, it is appropriate to make an order in accordance with the terms of the draft to grant probate to the applicant in respect of the copy Will.
Footnotes
[1] [2011] QSC 107 at 161.