Re Bushell-Guthrie
[2024] QSC 182
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- Unreported Judgment
- Re Bushell-Guthrie[2024] QSC 182
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Re Bushell-Guthrie[2024] QSC 182
Re Bushell-Guthrie[2024] QSC 182
SUPREME COURT OF QUEENSLAND
CITATION: | In the Will of Margot Alexandra Bushell-Guthrie [2024] QSC 182 |
PARTIES: | In the Will of MARGOT ALEXANDRA BUSHELL-GUTHRIE PERPETUAL TRUSTEE COMPANY LIMITED (applicant) |
FILE NO/S: | BS 10572/24 |
DIVISION: | Trial |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | Orders made on 19 August 2024 Judgment delivered on 23 August 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Heard on the papers |
JUDGE: | Freeburn J |
ORDER: |
|
CATCHWORDS: | SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – LIMITED, SPECIAL AND CONDITIONAL GRANTS OF PROBATE AND ADMINISTRATION – PROBATE OF LOST WILL – where an original Will cannot be found – where there is a photocopy of the original Will – whether the copy can allow for admission to probate |
SOLICITORS: | L Friedman (sol), Perpetual Trustee Company Limited for the applicant |
- [1]This is an application by Perpetual Trustee Company Limited that a copy of the Will of Margot Alexandra Bushell-Guthrie (deceased) dated 8 October 1992 be admitted to probate. The copy of that Will is exhibit LRG-2 to the affidavit of Lawrence Ray Gleadhill.
- [2]There are five matters that must be established for the admission to probate of a copy of the Will:
- that the original Will existed;
- that the original Will was duly executed;
- the terms of the original Will and that it revoked all previous Wills;
- that proper searches have been made for the original Will; and
- that any presumption of revocation of the original Will is rebutted.[1]
- [3]In this case the existence of the Will [requirement (a)] and the terms of the Will and that it revoked all previous Wills [requirement (c)] are proved by the photocopy of the Will.
- [4]The due execution of the Will [requirement (b)] can be presumed because the copy of the Will has an attestation clause and appears to have been duly executed in circumstances where one would expect the formalities to be observed.[2] The Will has the deceased signature and that of the two witnesses. It was a Will made by a trustee company.
- [5]The Will cannot be found despite searches [requirement (d)]. It was not amongst the deceased’s papers and one would expect the original to be in the packet kept by a third party – but only copies were there.
- [6]If a Will is last traced to the possession of the testator, and that Will cannot be found, a presumption arises that it was destroyed by the testator with intention of revoking it [requirement (e)].[3] However, that presumption does not arise here because the Will was always (until it went missing) in the possession of the Perpetual.
- [7]An order will be made in terms of the draft.