Re Hay (dec'd)[2023] QSC 146

SUPREME COURT OF QUEENSLAND

1. [1]
   Ailsa Frances Hay (Ailsa) is the widow of Donald Roy Hay (Donald).  Ailsa is the executor and trustee named in Donald’s will.
2. [2]
   The original of Donald’s will cannot be found.
3. [3]
   Ailsa applies for probate of a copy of Donald’s will.  She also applies for the application to be determined without oral hearing.

Background

4. [4]
   Donald and Ailsa were married for about 22 years.
5. [5]
   In 2013, Donald and Ailsa retained O'Reilly Lillicrap,^[1] a well-known firm of solicitors practising in the eastern suburbs of Brisbane, to prepare wills and enduring powers of attorney for them both.
6. [6]
   The wills and enduring powers of attorney were prepared by Mark Lillicrap, Solicitor and a principal of O'Reilly Lillicrap.
7. [7]
   On 7 August 2013, Donald and Ailsa attended upon Mr Lillicrap at the firm’s Morningside office and the wills and enduring powers of attorney were executed.
8. [8]
   Donald and Ailsa received copies of the documents but instructed Mr Lillicrap to retain the originals.
9. [9]
   Solicitors are often entrusted with custody of important documents and they must establish systems for their security.  O'Reilly Lillicrap had such systems.
10. [10]
    Mr Lillicrap handed the documents to his assistant, Ms Lisa Tait.  Ms Tait followed the firm’s protocols and:

    1. she took photocopies of the documents;
    2. she scanned copies to an electronic file;
    3. she placed the original documents in a plastic sleeve in the file;
    4. she prepared “safe custody instructions” for another staff member to enter the documents into the firm’s safe custody holdings. 
11. [11]
    The firm’s procedure for lodging and keeping the documents is:

    1. they are placed in a safe custody envelope;
    2. the envelope is bar coded;
    3. the envelope is then stored on-site at one of the firm’s offices or off-site with an entrusted contractor;
    4. a security register is kept electronically which tracks the documents.
12. [12]
    Ms Tait’s instructions ought to have caused the documents, including Donald’s will, to be received into the firm’s safe custody holdings.
13. [13]
    Donald’s will:

    1. revokes all previous testamentary instruments;
    2. appoints Ailsa as executor and trustee;
    3. leaves the estate (after payment of expenses) to Ailsa provided she survives him;
    4. in the event Ailsa does not survive Donald, the estate falls to Donald’s three children and if they do not survive him, then to their children.
14. [14]
    On 6 April 2016, Dr Roger Egerton, a doctor in general practice in Morningside who had treated Donald for many years, provided a report where he opined that Donald was suffering from Alzheimer’s dementia and “no longer has capacity to make decisions regarding his care and lacks capacity to sign legal documents”.
15. [15]
    There are ethical obligations upon solicitors to take steps to ensure that instructions are not taken from clients to prepare testamentary instruments where the clients lack capacity.  Mr Lillicrap is an experienced solicitor and he swears in his affidavit that he satisfied himself as to Donald’s capacity to make the will.
16. [16]
    The death certificate identifies cause of death as “Alzheimer’s disease” and “vascular cerebral insufficiency” and has both those conditions as being suffered by Donald for eight years, which calculates to 2014.
17. [17]
    Donald died on 18 December 2022 aged 85 years.  If Donald was suffering from Alzheimer’s disease when he instructed Mr Lillicrap in 2013, it must have been in the very early stages and there is no reason to doubt Mr Lillicrap’s assessment that Donald then possessed the relevant capacity.
18. [18]
    After Donald’s death, Ailsa met with Mr Lillicrap who took instructions for the administration of Donald’s estate. 
19. [19]
    Searches were conducted:

    1. The safe custody register showed that both Donald’s will and Ailsa’s will had been received into safe custody on 12 August 2013.
    2. The register showed nothing to suggest that the wills had been removed.
    3. The wills were not in the relevant security packets.
    4. The original wills were not on the files.
    5. The wills ought to have been in security packet number 7552.  Searches of security packets numbered 10 numbers before and 10 numbers after 7552 were searched as were certain other packets and the wills were not located.
    6. A search of the safe containing security packets was conducted for loose documents in case the wills had somehow fallen from the packet.  The wills were not on the safe floor.
    7. A thorough search of both the firm’s Morningside office and the firm’s Wynnum office failed to locate the two wills.
20. [20]
    Ailsa swears that while she and Donald retained copies of the wills, they never took possession of the originals.
21. [21]
    Due to him suffering from dementia, Donald’s final days were spent at St Vincent’s Care Centre at Carina.  Ailsa searched that address and her place of residence and could not locate any testamentary documents of Donald other than the copy of the will which had been prepared by O'Reilly Lillicrap in 2013. 
22. [22]
    Notice of Ailsa’s intention to apply for a grant of probate has been given to the Public Trustee and otherwise has been properly advertised.

Relevant statutory provisions and principles

23. [23]
    Ailsa 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.”

24. [24]
    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).
25. [25]
    The Succession Act 1981 grants jurisdiction to the Court over matters of succession,^[2] but there is no provision expressly empowering the Court to grant probate to a copy of a will.^[3]  There is though no doubt that the Court has jurisdiction to grant probate of a copy of a will.^[4]  The power is sourced from the common law.^[5]
26. [26]
    In Frizzo v Frizzo,^[6] Applegarth J followed Cahill v Rhodes^[7] and held that five matters must be established for a successful application for the admission to probate of a copy will.^[8]  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^[9] 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

Should the application be determined without oral hearing?

27. [27]
    None of the circumstances prescribed by ss 489(2)(b) or (c) or (d) arise.  The only question is whether there is some reason why it is inappropriate for the Court to proceed without oral hearing.^[10]
28. [28]
    There is no doubt that Donald’s will was left with O'Reilly Lillicrap after it was executed.  Evidence of its fate from that point can only logically come from the records of the firm and from deponents who have searched within the firm for the will.  All that evidence has been carefully marshalled.  None of it appears to be contentious.
29. [29]
    The application for probate was, as previously observed, advertised.  The number of persons who might be interested in the grant of probate of Donald’s will would limited.
30. [30]
    Ailsa’s application for probate of the copy will does not give rise to any novel questions of law.
31. [31]
    In all the circumstances, it is appropriate to deal with the matter without oral hearing and I intend to do so.

Should probate be given on the copy will?

32. [32]
    It is clear:

    1. Donald’s will purports to embody his testamentary intentions;^[11]
    2. Donald’s will revoked all previous wills;^[12]
    3. the terms of Donald’s will are evident from its face.  There is no suggestion of any additional terms or any associated testamentary documents;^[13]
    4. Donald’s will is duly executed.  That is obvious on its face.^[14]
33. [33]
    As earlier observed,^[15] there is a presumption that as the original of Donald’s will cannot be produced to the Court, it was destroyed by him with the intention of revoking it.^[16]  The only real issue is whether Ailsa has overcome the presumption.
34. [34]
    Ailsa has, in my view, rebutted the presumption because:

    1. it is unlikely that Donald revoked his will; and
    2. the overwhelming inference is that the original of Donald’s will has been lost within O'Reilly Lillicrap’s office.
35. [35]
    Ailsa and Donald together retained O'Reilly Lillicrap to prepare wills and enduring powers of attorney for them both.  From that point in time until 2016, Donald’s mental capacities declined.  In my view, it is highly unlikely that Donald would have revoked his will or made a new one without Ailsa’s knowledge.
36. [36]
    O'Reilly Lillicrap had a sophisticated system for storing documents in safe custody.  Mr Lillicrap and Ms Tait were able to track Donald’s will through the various systems to the document register.  Donald’s will is unfortunately just not where it should be.  However, there is no record of Donald’s will being collected.
37. [37]
    The only reasonable inference is that despite the systems employed by O'Reilly Lillicrap for the safe custody of their clients’ documents, Donald’s will has been lost somewhere in the office through human error which has defeated the system.
38. [38]
    I am satisfied that Donald did not revoke his will and that the will was intended by him to be his last.
39. [39]
    It is appropriate then to grant probate to the copy which is exhibited to Ailsa’s affidavit affirmed on 19 May 2023.

Orders

40. [40]
    I note that there is no application for costs of the application to be paid by the estate.  In the circumstances, that is understandable.
41. [41]
    The orders are:

    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, the photocopy of the will dated 7 August 2013 of Donald Roy Hay late of St Vincent’s Care Centre, 141 Fursden Road, Carina in the State of Queensland, that is exhibit “A” to the affidavit in support of probate application of Ailsa Frances Hay affirmed 19 May 2023, be admitted to probate until the original will or more authenticated evidence be brought into and left in the Registry.