In the Will of Nina Elizabeth Mary Greer
[2022] QSC 136
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- Unreported Judgment
- In the Will of Nina Elizabeth Mary Greer[2022] QSC 136
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In the Will of Nina Elizabeth Mary Greer[2022] QSC 136
In the Will of Nina Elizabeth Mary Greer[2022] QSC 136
SUPREME COURT OF QUEENSLAND
CITATION: | In the Will of Nina Elizabeth Mary Greer [2022] QSC 136 |
PARTIES: | BARBARA JANE DANSON (applicant) |
FILE NO/S: | BS 6528 of 2022 |
DIVISION: | Trial Division |
PROCEEDING: | Application on the papers |
ORIGINATING COURT: | Supreme Court of Queensland |
DELIVERED ON: | 5 July 2022 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers |
JUDGE: | Bradley J |
ORDER: | The Order of the Court is that:
|
CATCHWORDS: | SUCCESSION – MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – WHEN LOST, MISLAID, DESTROYED OR NOT AVAILABLE – where an original will was executed and a copy retained by the testatrix and one of the beneficiaries – where the original Will is missing and has not been located – where the evidence of the will is the copy of the Will provided to a beneficiary – whether the copy of the will should be admitted to probate. Cahill v Rhodes [2002] NSWSC 561, cited. |
COUNSEL: | A Rae for the applicant |
SOLICITORS: | Spink Legal for the applicant |
- [1]The applicant, Barbara Jane Danson, seeks an order that a copy of the Will of Nina Elizabeth Mary Greer (the deceased), be admitted to probate. For the reasons set out below, I am satisfied that the application should proceed without an oral hearing, pursuant to r 489(1) of the Uniform Civil Procedure Rules 1999 (Qld).
- [2]The deceased executed a Will (the Will) on 19 May 2004 in the presence of two witnesses, William John Allen and Kelly Maree Connelly. Mr Allen was a solicitor. The Will was prepared by his firm WJ Allen. Ms Connelly described her occupation as housewife. She lived in the same suburb as the deceased and near to the solicitor’s office.
- [3]The Will revokes all former Wills and testamentary dispositions made by the deceased. It appoints the deceased’s daughter, Lorraine Elizabeth Milner, to be the executrix and trustee of the Will. It provides that if Ms Milner does not survive the deceased for 30 days, then the applicant, as another daughter of the deceased, is to be the executrix and trustee of the Will.
- [4]The whole of the deceased’s real and personal estate is given, devised and bequeathed to the trustee on trust for such of the deceased’s children as shall survive her and, if there is more than one, then to her surviving children as tenants in common in equal shares.
- [5]The material before the Court deposes that the deceased made known to a number of her children the fact that she had made the Will and that a copy of it was kept by her in her bedroom duchess.
- [6]In about 2010, the deceased moved from her home to an aged care centre at Scarborough. She lived there until her death on 2 December 2012.
- [7]The solicitor, Mr Allen who witnessed the Will and whose firm prepared it, also prepared a transfer of a one half interest in the deceased’s real property to her son, Robin Greer, on or about the date when the Will was executed. Mr Greer has been able to produce a memorandum of costs from the solicitors dated 18 May 2004 for the property transfer. It includes a handwritten addendum indicating that Mr Allen charged $99 for the preparation of the Will. Mr Greer also retained a copy of the Will executed by the deceased in the presence of the two witnesses.
- [8]The deceased’s children understood from conversations with the deceased that the original of the Will was held in safe custody by the firm WJ Allen. After the deceased’s death, the firm WJ Allen could not be contacted. It appears to have ceased to trade on 29 May 2009.
- [9]The applicant engaged solicitors to make enquiries as to where the original of the Will might be located. Those enquiries included questions to the Queensland Law Society about the transfer of files from WJ Allen to another firm, enquiries of that other firm as to whether they held any documents in the name of the deceased or had any other information about the whereabouts of any other files from the firm WJ Allen. Those enquiries yielded no useful results. An advertisement was placed in the missing Wills section of the publication Proctor. It has returned no results.
- [10]The applicant has searched her own files at home and been unable to locate the original Will. The applicant located a scanned copy of the Will in her computer files. It is the same as the copy held by Mr Greer. The applicant’s sister, Ms Milner, has also searched her papers and been unable to locate the original Will. The remaining siblings of the applicant have been contacted and asked if they know the whereabouts of the original of the Will, but none does.
- [11]I have considered the five matters identified by Campbell J in Cahill v Rhodes [2002] NSWSC 561 at [55], which should be established to admit a copy of a Will to probate. Four of those matters are established:
- (a)there was a Will, being the Will from which the copy exhibited in the application was made;
- (b)that the Will revoked all previous Wills, as first clause of the copy of the Will indicates;
- (c)that the entire document is available in copy form;
- (d)that the Will was duly executed, in that the copy of the Will includes the signature of the deceased, in the presence of two witnesses, who signed in each other’s presence.
- (a)
- [12]As the written submissions by Ms Rae of counsel identified, the only question which calls for some more detailed consideration is whether the presumption of destruction is overcome. This may be shortly described in the language adopted by Peter Lyons J In the Will of Warren [2014] QSC 101 at [11]. It is the presumption that, if a Will last traced to the possession of the deceased testator cannot be found, that the Will was destroyed by the testator with the intention of revoking it.
- [13]As Ms Rae identifies in her written submissions, the evidence before the Court does not trace possession of the original Will to the deceased. Rather, it traces the possession of the original Will to the deceased’s former solicitor. The Will was executed in the presence of the solicitor. The deceased informed her children that she had retained only a copy of the Will. I am satisfied in any event that it is more likely than not that the original Will was held by the firm WJ Allen and was lost in the process of that firm ceasing business.
- [14]In the circumstances, I am satisfied of each of the five matters necessary in order to admit a copy of a Will to probate.
- [15]On 14 March 2022, the applicant’s solicitors served a copy of a notice of intention to apply for a grant of probate on the Public Trustee. On 18 March 2022, the applicant’s solicitors arranged for a copy of the notice to be published and to appear in the Queensland Law Reporter published that day.
- [16]In the circumstances, it is appropriate to make an order admitting the copy of a Will to probate. Subject to the formal requirements of the Registrar, the copy of the Will of the deceased, that is Exhibit BJD-1 to the affidavit supporting probate application of Barbara Jane Danson affirmed on 1 April 2022 should be admitted to probate until the original Will or more authenticated evidence is brought into and left in the Registry.