Re Nagy (dec'd)[2023] QSC 63

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant is the only child of Ethel Nagy (Mrs Nagy), a widow, who died on 24 June 2022.
2. [2]
   Mrs Nagy executed a will on 17 May 2007 (the will) but the original will cannot be found.  
3. [3]
   The applicant applies for probate of a copy of the will.  Pursuant to r 489(1) of the Uniform Civil Procedure Rules 1999 (UCPR), he seeks to have the application determined on written submissions without oral hearing.
4. [4]
   Rule 489(2) of the UCPR provides that where an application is made for a decision without an oral hearing the court must decide the application without oral hearing unless one of the circumstances in r 489(2)(a) or (b) or (c) or (d) is present.  They are not and so I will decide the application without oral hearing.  

Relevant principles

1. [5]
   There is no provision in the Succession Act 1981 which empowers the court to grant probate to a copy of a will.^[1]  However, there is no doubt that the court has jurisdiction to grant probate of a copy of a will^[2] and that power is sourced in the common law.^[3]
2. [6]
   In Frizzo v Frizzo,^[4] Applegarth J followed Cahill v Rhodes^[5] and held that five matters must be established for a successful application for the admission to probate of a copy will.^[6]  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^[7] 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).
3. [7]
   There are advertising requirements for an application for probate.^[8]  These have been complied with.  The only difficulty with probate is caused by the fact that the original will cannot be located and so if probate is to be given, it must be given to a copy of the will.

The real issues

1. [8]
   There is no doubt that Mrs Nagy executed the will on 17 May 2007.
2. [9]
   The will was drawn by an experienced solicitor, Mr David Allard.
3. [10]
   The will appointed the applicant as the sole executor and then bequeathed the whole estate to him provided he survived her.  He did survive her and therefore there is no necessity to consider provisions made for default beneficiaries.
4. [11]
   The will on its face purports to be the last will and testament of Mrs Nagy and it expressly operates as a revocation of all former wills and other testamentary dispositions.
5. [12]
   There is no reason to think that the will was not duly executed.  On its face, it appears duly executed.  Mr Allard drew it.  He swears that Mrs Nagy signed the will and that he witnessed it with another witness.
6. [13]
   The evidence therefore establishes factor 1, factor 2, factor 4 and factor 5.  The only thing in issue is factor 3.

Does the applicant overcome the presumption that the will was destroyed by Mrs Nagy with the intention of revoking it?

14. [14]
    As already observed, Mr Allard, drafted the will and witnessed it.  On the instructions of Mrs Nagy, Mr Allard retained the will in his securities.
15. [15]
    In April 2017, Mrs Nagy attended upon Mr Allard with a view to drawing a new will. 

As to that conference, Mr Allard has sworn:

“On that date I formed the view that the Deceased did not have testamentary capacity and so I could not take instructions for a fresh will for the following reasons:

1. (a)
   The Deceased did not recognise me although I had been her solicitor for decades; 
2. (b)
   The Deceased was not sure why she had attended my office; and
3. (c)
   The Deceased was very vague when she talked about her Power of Attorney and Will going to the city. It made no sense.”

16. [16]
    Mr Allard declined to draw a fresh will on her instructions.  He released the will to the applicant on the day he conferred with Mrs Nagy. The applicant swore that he took the original will from Mr Allard and placed it in a security box which was located in Mrs Nagy’s bedroom at her last address at a nursing home in Bethania.  That security box contained various legal documents and the applicant understood that was where Mrs Nagy kept such documents.  The day the applicant saw the original will placed into the security box was the last time he saw the will.
17. [17]
    After Mrs Nagy’s death, the applicant ascertained that the original will was no longer in the security box.  After searches at the nursing home and also his residence, he swears that he has been unable to locate the original will and knows of no likely place where the original will may be.
18. [18]
    Mrs Nagy, at least when she had capacity, was aware of the benefits of having a current will.  With the assistance of Mr Allard, she executed a will in 2007.  Even in 2017, when her intellectual capacities were leaving her, she was still concerned to have a current will.  That is why she attended upon Mr Allard in April 2017.  
19. [19]
    It is unlikely that Mrs Nagy would have wished to die intestate.  It is unlikely then that she would have destroyed the original will.  By the time of her death, Mrs Nagy was 95 years of age and suffering various ailments, including dementia.  It is likely, in my view, that with her intellectual capacities declining, Mrs Nagy has simply misplaced the will.
20. [20]
    Where an original will cannot be found, the concern is that it has been destroyed upon the formation of a testamentary intention to revoke it.  By the time of Mr Allard’s conference with Mrs Nagy in 2017, she was 90 years of age, suffering from dementia and he, Mr Allard, had been in practice for some 43 years.  There is no reason not to accept Mr Allard’s assessment that Mrs Nagy no longer had testamentary capacity.  I accept Mr Allard’s assessment.
21. [21]
    If Mrs Nagy had no capacity to make a will, she had no capacity to revoke one.  Even if, for some reason, Mrs Nagy destroyed the will, it would not follow that she did so with the intention to revoke it.
22. [22]
    In all the circumstances, I am satisfied that the will was the last will of Mrs Nagy and it remained in force up to the time of her death.
23. [23]
    I order that:

    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 Grant of Probate of a copy of the will of Ethel Nagy contained in Exhibit B to the affidavit of Ernest Joseph Nagy dated 31 January 2023, be granted to Ernest Joseph Nagy as executor limited until the original will or more authenticated evidence thereof be brought into and left at the Registry of this Court.