In the Will of Janice Elaine Ridley
[2023] QSC 47
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- In the Will of Janice Elaine Ridley[2023] QSC 47
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In the Will of Janice Elaine Ridley[2023] QSC 47
In the Will of Janice Elaine Ridley[2023] QSC 47
SUPREME COURT OF QUEENSLAND
CITATION: | In the Will of Janice Elaine Ridley [2023] QSC 47 |
PARTIES: | IN THE WILL OF JANICE ELAINE RIDLEY Stanley George Blanton AND Kay Lynette Taylor as Executors of the Will of Janice Elaine Ridley (applicants) |
FILE NO: | BS 176 of 2023 |
DIVISION: | Trial Division |
PROCEEDING: | Application on the papers |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 14 March 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers |
JUDGE: | Sullivan J |
ORDER: | A grant of probate of the will of Janice Elaine Ridley, as contained in a copy, dated 23 December 2013 be issued to STANLEY GEORGE BLANTON and KAY LYNETTE TAYLOR, subject to the formal requirements of the Registrar, as executors, limited until the original will or more authenticated evidence be brought into and left in the Registry. |
SOLICITORS: | Ingwersen & Lansdown |
- [1]I have before me an application on the papers for a grant of probate of a copy of the will of Janice Elaine Ridley (“the deceased”) dated 23 December 2013. I have been asked to consider this application on the papers.
Background
- [2]The deceased died at the Terraces Aged Care, 74 University Drive, Varsity Lakes, in the State of Queensland on 22 December 2021.
- [3]The deceased made her last will on 23 December 2013 by means of a will kit which she completed and had witnessed before a Justice of the Peace and a Commissioner for Declarations at the Department of Justice and Attorney-General, at South Brisbane.
- [4]The original will was stored by the deceased in the home she shared with one of the applicants, Stanley George Blanton (“Mr Blanton”). Mr Blanton was the deceased’s partner.
- [5]Following the deceased’s death, Mr Blanton located the original will at the home they had shared and attended at the offices of Ingwersen & Lansdown Solicitors, initially on two occasions. On the second occasion he produced the original will to Ms Nicole Ainger, a solicitor in the employ of Ingwersen & Lansdown. Ms Ainger caused a photocopy of the original will to be made and retained by the firm on that occasion.
- [6]The evidence of Mr Blanton and Ms Ainger is that the original will was returned to Mr Blanton at the end of that second occasion and he took it away with him. This was likely as a result of a discussion on that date between Mr Blanton and Ms Ainger to the effect that Mr Blanton may need to show it to the nursing home where the deceased resided.
- [7]In March 2022, Mr Blanton sought further assistance from Ingwersen & Lansdown Solicitors and was requested to return to their office with the original will for probate purposes.
- [8]At that point Mr Blanton was unable to relocate the original will of the deceased. He made thorough searches of his home to no avail. Having notified the solicitors of his inability to locate the original will, Ms Ainger also caused thorough searches to be made of their offices, to no avail.
- [9]Fortunately, as referred to above, Ms Ainger had sighted the original will of the deceased on the second occasion, and caused a photocopy to be made of it, before returning the original will to Mr Blanton.
- [10]A notice of intention to apply for a grant was published in the Queensland Law Reporter on 9 December 2022. There has been no response to this advertisement.
- [11]The material provisions of the photocopy of the will sought to be admitted to probate are as follows:
- (a)Clause 1 revokes all previous wills;
- (b)Clause 2 appoints the applicants as executors;
- (c)Clause 4 makes a specific gift of a vehicle, furniture and land to Mr Blanton;
- (d)Clause 5 gives the residue of the estate to Mr Blanton and jewellery and personal items to the other executor, Kay Lynette Taylor.
- (a)
Legal Principles
- [12]There are five matters which I must be satisfied of in order for the Court to grant probate of a lost will:[1]
- (a)There actually was a will;
- (b)That the will revoked all previous wills;
- (c)The presumption that when a will is not produced it has been destroyed has been overcome;
- (d)There must be evidence of the will’s terms; and
- (e)There must be evidence of the will’s execution.
- (a)
- [13]I am satisfied that the five matters have been established on the evidence before the Court.
That there was a will
- [14]The material establishes that the deceased made a will dated 23 December 2013 and it was validly witnessed. It was stored at the home the deceased had shared with Mr Blanton. The photocopy of the will in evidence indicates that on the date of its execution, 23 December 2013, an original will existed.
That the will revoked all previous wills
- [15]Clause 1 of the photocopy of the will revokes all previous wills, and testamentary acts and dispositions.
The presumption that when a will is not produced it has been destroyed has been overcome
- [16]The standard of proof required is that of the ordinary civil standard. The original will was held at the deceased’s home and was located after her death. As the original will was located after the deceased’s death, was produced to the offices of Ingwersen & Lansdown Solicitors and a photocopy of it was then made by the solicitors at that time, there can be no inference that the deceased had intentionally or accidentally revoked it. The material before the Court provides an appropriate explanation for its loss after the deceased’s death. The presumption has been overcome.
There must be evidence of the will’s terms
- [17]The photocopy of the will provides evidence of the terms of the will. Clause 5 of the copy of the will provides that the deceased left the residue of her estate to the applicants.
There must be evidence of the will’s execution
- [18]The photocopy of the will evidences that it was executed in accordance with the requirements of s 10 of the Succession Act 1981 (Qld), in that it was signed by the deceased in the presence of two witnesses with an appropriate attestation clause to that effect.
- [19]Having been satisfied of the matters set out above it is appropriate that I make orders to admit the copy to probate on the usual basis, that is, until the original will or more authenticated evidence of it be brought and left in the Registry.
Orders
- A grant of probate of the will of Janice Elaine Ridley, as contained in a copy, dated 23 December 2013 be issued to STANLEY GEORGE BLANTON and KAY LYNETTE TAYLOR, subject to the formal requirements of the Registrar, as executors, limited until the original will or more authenticated evidence be brought into and left in the Registry.
Footnotes
[1] Price v Tickle [2013] 1 Qd R 236 at [26] per McMeekin J, citing Curley v Duff (1985) 2 NSWLR 716, approved by de Jersey CJ in Will of Dianne Margaret Gardie [2013] QSC 265 at [8].