Re Gardner (dec’d)[2023] QSC 142

1. [1]
   Christine Anne Watkinson is named as executor in what she says is the last will of Norman Oswald Gardner (Norman) who died on 3 December 2022.
2. [2]
   The original cannot be located and Ms Watkinson applies for probate of a copy of the will. She seeks to have the application considered without oral hearing.

Background

3. [3]
   Norman was married to Audrey Frances Mary Gardner but she predeceased him.
4. [4]
   On 9 November 2005, before Audrey’s death, Norman made a will (the 2005 will).
5. [5]
   By the 2005 will, Norman left the whole of his estate to Audrey but provided that in the event of her predeceasing him:

“Specific Bequest

I GIVE my house and land at GOLDEN SHORES 176/7 BAY DRIVE PIALBA QUEENSLAND and all my household furniture and household effects (other than motor vehicles) therein at my death to be divided as follows:-

1. a
   As to a 25% share to my step-son DAVID FRANK SISSONS absolutely. But is^[1] this gift fails then to my wife’s grandson JASON DAVID SISSONS
2. b
   As to a 25% share to my step-daughter CHRISTINE ANNE WATKINSON absolutely. But if this gift fails then to my wife’s grandson JASON DAVID SISSONS
3. c
   As to a 25% share to my step-daughter JANET ELIZABETH SISSONS absolutely. But if this gift fails then to my wife’s grandson JASON DAVID SISSONS
4. d
   As to a 25% share to my wife’s grandson JASON DAVID SISSONS absolutely.

Further Gift of Residue

I GIVE-

My residuary estate to my wife’s grandson JASON DAVID SISSONS absolutely.”

6. [6]
   On 18 January 2018, Norman made the will for which Ms Watkinson now applies for probate (the 2018 will).
7. [7]
   By the time the 2018 will was made, Audrey was deceased.
8. [8]
   By the 2018 will:

“3.     I give my house situated on Golden Shores Resort 176 Reef Ave, 7 Bay Drive, Pialba, Hervy Bay^[2] to Christine Anne Watkinson, Janet Elizabeth Sissons & Jason David Sissons.

The house is to be sold & the proceeds from the sale to be divided equally between the three of them.

Should any of my three beneficiaries die their share to be given to my remaining beneficiarie(s).

I give my jeep to Christine Anne Watkinson. My furniture, tools & personal effects will be left to Christine Anne Watkinson to do with as she sees fit ie given, sold, etc. Any money remaining after the sale of my house & after all expenses, debts, bills have been paid should be divided between my 3 beneficiaries.”

9. [9]
   Both the 2005 will and the 2018 will appear on their face to be validly executed. Ms Watkinson, in her affidavit filed 20 June 2023, swore to the circumstances of the making of the 2018 will. There were three people present with Norman when the will was made. They were Ms Watkinson, a neighbour namely Judith Kassulke, and another neighbour, Brenda Sandr who is a Justice of the Peace.
10. [10]
    The will is written on a standard will form. Ms Sandr effectively took Norman’s instructions and wrote the will in accordance with those instructions. Norman read the will and expressed his agreement with the contents. The will was signed by Norman in the presence of Ms Sandr, Ms Kassulke and Ms Watkinson and Ms Sandr and Ms Kassulke each signed the will as witnesses.
11. [11]
    Various copies of the will were taken. Norman retained the original. Mrs Watkinson retained a copy. Ms Watkinson says “copies of the will were made at the deceased’s request for the purpose of distribution to the beneficiaries named in the will”, although there is no evidence that copies were in fact distributed to the beneficiaries.
12. [12]
    In about 2020, Norman moved from Golden Shores to Fair Haven Aged Care Service located at Urraween. The Golden Shores residence was sold in about 2021, prior to Norman’s death.
13. [13]
    Had the 2005 will been in effect at the time of Norman’s death, Jason Sissons would likely have taken the entire estate. That is because the house at Golden Shores was sold prior to death. That was the subject of a specific bequest. Arguably, the proceeds of sale would fall to residue to which Jason Sissons was entitled.
14. [14]
    Difficult questions arise as to the proper construction of the 2018 will. It purports to leave Golden Shores to the three beneficiaries, Ms Watkinson, Janet Sissons and Jason Sissons. As earlier observed, Golden Shores was sold prior to Norman’s death. There is no clause expressly dealing with residue. A full consideration of the proper construction of the 2018 will is beyond the scope of this application.
15. [15]
    Thorough searches and enquiries were unable to locate the original will.
16. [16]
    When Norman moved from Golden Shores to Fair Haven, he did not take his household furniture and household effects with him. They were disposed of.
17. [17]
    Between 18 January 2018 and his death, Norman did not make any comment to Ms Watkinson about his will or his testamentary intentions.
18. [18]
    Ms Watkinson was not told by Norman that he had destroyed the will or otherwise that he intended it not to take effect upon his death as his last will.
19. [19]
    Ms Watkinson observed that between 18 January 2018 and Norman’s death, Norman maintained a close and loving relationship with the beneficiaries named in the 2018 will.
20. [20]
    Jason Sissons is aware of the current application and does not intend to participate in it.

Relevant statutory provisions and principles

21. [21]
    Ms Watkinson seeks to have the application determined without oral hearing. Rule

489 of the Uniform Civil Procedure Rules 1999 (UCPR) provides for such a procedure:

“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.
2. (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
   2. (b)
      under rule 494, the respondent requires an oral hearing; or
   3. (c)
      under rule 495, the applicant abandons the request for a decision without an oral hearing; or
   4. (d)
      the Chief Justice or Chief Judge suspends the operation of this rule by direction.”
3. [22]
   The structure of r 489 is that:

   1. jurisdiction to proceed without oral hearing is granted;
   2. the jurisdiction is enlivened by a proposal by an applicant;
   3. the proposal must be accepted in the absence of the features in r 489(2)(a)-(d).
4. [23]
   The Succession Act 1981 grants jurisdiction to the Court over matters of succession,^[3] but there is no provision expressly empowering the Court to grant probate to a copy of a will.^[4] There is though no doubt that the Court has jurisdiction to grant probate of a copy of a will.^[5] The power is sourced from the common law.^[6]
5. [24]
   In Frizzo v Frizzo,^[7] Applegarth J followed Cahill v Rhodes^[8] and held that five matters must be established for a successful application for the admission to probate of a copy will.^[9] These are:

   1. there was actually a will or a document purporting to embody the testamentary intentions of a deceased person (factor 1);
   2. that will or document revoked all previous wills (factor 2);
   3. the applicant overcomes the presumption^[10] that if the will cannot be produced to the Court, it was destroyed by the testator with the intention of revoking it (factor 3);
   4. there is evidence of the terms of the will (factor 4); and
   5. the will was duly executed or that the deceased person intended the document to constitute his or her will (factor 5).

Consideration

25. [25]
    As earlier observed, r 489 directs the Court to proceed without oral hearing in the absence of any of the circumstances prescribed by s 489(2). None of the circumstances prescribed by s 489(2)(b) or (c) or (d) arise. The only question is whether it is for some reason inappropriate for the Court to proceed without oral hearing.
26. [26]
    The intention of Ms Watkinson to apply for probate was advertised in accordance with the UCPR. Persons interested in the application are likely to be few in number. There is no suggestion that any interested party is not aware of the application. Jason Sissons has an interest in the application as he is the sole beneficiary under the 2005 will for the reasons explained above.^[11] As already observed, he does not intend to participate in the application.^[12]
27. [27]
    The circumstances of Norman making the will and the circumstances in which it may have come to be lost do not appear to be contentious.
28. [28]
    I can see no reason why it would be inappropriate to proceed to determine the matter without oral hearing. Therefore, I should, pursuant to r 489, determine the matter on that basis.
29. [29]
    It is clear:

    1. the 2018 will purports to embody the testamentary intentions of Norman;^[13]
    2. the 2018 will revoked all previous wills;^[14]
    3. the terms of the 2018 will are evident from its face. There are no suggestion of any additional terms or any associated testamentary documents;^[15]
    4. as earlier observed,^[16] the 2018 will was duly executed.^[17]
30. [30]
    The only matter really in contest is whether Ms Watkinson has overcome the presumption that as the will cannot be produced to the Court, it was destroyed by Norman will the intention of revoking it.^[18]
31. [31]
    Ms Watkinson has, in my view, rebutted the presumption because:

    1. it is unlikely that Norman revoked the 2018 will; and
    2. there is a sensible explanation as to how the will could have been accidentally destroyed.
32. [32]
    Norman was aware of the desirability of leaving a will. He made the 2005 will. When his circumstances changed as a result of the death of Audrey, he made the 2018 will. Both wills show that Norman considered the fate of his estate and decided to share the estate with his close relatives.
33. [33]
    I draw the inference that if Norman had intended to revoke the 2018 will, he would have sought to make a new will. There is no evidence of that.
34. [34]
    There is no evidence of any change in Norman’s relationships which might motivate him to revoke the 2018 will. Norman was 94 when he died in 2022. He would have been about 90 when he made the 2018 will. He remained close to those relatives named as beneficiaries in both the 2005 will and the 2018 will. In all those circumstances, it is unlikely that Norman would have revoked the 2018 will.
35. [35]
    The absence of the original of the 2018 will is most likely explained by it having been lost when Norman moved from Golden Shores to Fair Haven.
36. [36]
    By that stage he was very elderly and many of his possessions were disposed of. The strong inference is that the original will was accidentally discarded.
37. [37]
    I am satisfied in all the circumstances that probate should be granted to Ms Watkinson of the copy will.

Conclusions and orders

38. [38]
    The application does not seek costs. Costs are not mentioned in the submissions. I will therefore make no order as to costs.
39. [39]
    I otherwise order:

    1. Pursuant to r 489(1) of the Uniform Civil Procedure Rules 1999 (Qld) this application is to proceed without an oral hearing.
    2. Subject to the formal requirements of the Registrar, a copy of the will dated 18 January 2018 of Norman Oswald Gardner of 130 Pantlins Lane, Urraween in the State of Queensland that is Exhibit A to the affidavit in support of probate application of Christine Anne Watkinson be admitted to probate until the original will or more authenticated evidence be brought into and left in the Registry.