Re Calabro[2024] QSC 71

SUPREME COURT OF QUEENSLAND

1. [1]
   This is an application on the papers by Roma Catherine Calabro for a grant of probate of a copy of the will of her late husband, Giuseppe Benito Sydney Calabro (also known as Joe Calabro), dated 28 April 2020.  The procedural requirements enabling the application to be heard and determined without oral hearing have been satisfied. 
2. [2]
   The deceased died on 15 October 2023 aged 66 years and was survived by the applicant who is the named sole executor under his last will dated 28 April 2020 (a copy of which is in evidence).  The grant of probate of a copy of the will is sought because the original of the will has been lost, and despite all reasonable searches, cannot be found.
3. [3]
   Notice of the applicant intending to apply for a grant of probate was served upon the Public Trustee on 23 November 2023 and a notice was published in the Queensland Law Reporter on 1 December 2023. 

The lost will

4. [4]
   The circumstances in which the will has come to be lost, which I accept, are as follows:

1. (a)
   On 22 October 2019, the deceased and the applicant met with Greg Cahill of Cooper Grace Ward Lawyers (“CGW”) to give instructions for the preparation of their wills;
2. (b)
   On 2 April 2020, CGW posted a letter to the deceased and the applicant enclosing copies of their wills for signing;
3. (c)
   On 28 April 2020, both the deceased and the applicant signed their wills before Ms Andrea Lysnar and Mr Michael Lucas as witnesses. At the time, Ms Lysnar  undertook many administrative tasks for the deceased’s family – and continues to do so to date;
4. (d)
   Following the deceased and the applicant signing their wills, Ma Lysnar  posted both wills back to CGW ;
5. (e)
   On 30 April 2020, CGW received the original wills by post, then scanned and saved a copy of the will to its online database;
6. (f)
   On 10 June 2020, the original will was entered into CGW’s document retention system in an envelope packet created for the deceased’s original documents;
7. (g)
   On 20 April 2021, the deceased met with Ms Donna Benge of Piper Alderman to discuss his estate planning, at which time he told  Ms Benge that the original of his will was held by CGW and he did not want to update it;
8. (h)
   On 10 August 2022, at the deceased’s request, Ms Lysnar sent an email to CGW asking for confirmation the original Will was in the custody of CGW. This confirmation was provided on 11 August 2022;
9. (i)
   Following the deceased’s death in October 2023, on 1 November 2023, Ms Benge sent a letter to CGW requesting the original of the will;
10. (j)
    In December 2023, CGW arranged for the deceased's envelope packet containing the will to be retrieved, however found it to be empty;
11. (k)
    CGW then undertook an extensive search of their firm’s internal systems, consulted employees and also made enquiries with other advisors for the deceased’s family, but were unable to locate the original will; and 
12. (l)
    Despite being unable to locate the original will, CGW have no record of:

1. (i)
   releasing the original will to any person (including the deceased); or
2. (ii)
   receiving any instructions from the deceased to destroy the original will.

Analysis

5. [5]
   There are five matters which must be satisfied in order for the Court to grant probate of a lost will:^[1]

1. (a)
   First: There actually was a will.
2. (b)
   Second: That the will revoked all previous wills.
3. (c)
   Third: The presumption that when a will is not produced it has been destroyed has been overcome.
4. (d)
   Fourth: There must be evidence of the will’s terms.
5. (e)
   Fifth: There must be evidence of the will’s execution.

5. [6]
   I am satisfied on the present facts that matters one, two, four and five have been established.  On the face of it, the deceased’s will purports to embody his testamentary intentions, revokes all previous wills and it’s terms are evident on the face of the document, and it is duly executed. I therefore find that on 28 April 2020, the deceased executed an original will in a way which satisfies the provisions of the Succession Act 1981 (Qld).^[2]
6. [7]
   The real issue is whether the applicant has overcome the third matter being the presumption that in the absence of the original of the will being produced to the Court, the deceased destroyed the will with the intention of revoking it.
7. [8]
   The applicant’s evidence which I accept as a matter of common sense and plausibility in the context of what appears to have been a relatively long marriage, is that the deceased would not have revoked the will or made a new will without discussing that with her and that he did not do so.  This finding is consistent with the fact that there is no evidence of the deceased making a new will.
8. [9]
   The overwhelming inference which I draw in this case, is that the deceased did not revoke his will, but rather that the original of the will was somehow lost within the offices of the solicitors at a time after 30 April 2020. 
9. [10]
   I find that the presumption the will was destroyed, has been rebutted in this case for the following four reasons:

1. (a)
   First: After the deceased executed the will, the original was received by CGW and stored using their sophisticated system for storing safe custody documents;
2. (b)
   Second: Aside from a request on the deceased’s behalf confirming CGW still had the original will, the deceased never asked CGW to release or destroy the will;
3. (c)
   Third: There is no record that CGW ever released the will from safe custody; and
4. (d)
   Fourth:  There is no evidence that the deceased made a new will. 

5. [11]
   I am therefore satisfied that the applicant has satisfied all five necessary criteria as set out above and is entitled to a grant of probate of a copy of the will. 
6. [12]
   I therefore order that: 

1. (a)
   Subject to the formal requirements of the Registrar, the photocopy of the will dated 28 April 2020 of Giuseppe Benito Sydney Calabro (also known as Joe Calabro) late of 290 Cobaki Road, Cobaki in the State of New South Wales, that is exhibit “A” to the affidavit in support of probate application of Roma Catherine Calabro made on 26 March 2024, be admitted to probate until the original will or more authenticated evidence be brought into and left in the Registry.
2. (b)
   The costs of this application are to be paid from the estate.