Re van Doore[2024] QSC 8

SUPREME COURT OF QUEENSLAND

1. [1]
   I have before me an application on the papers for a grant of probate of a copy of the will of Ardina Wilhelmina Theresia van Doore (“the deceased”) dated 25 March 2015. I have been asked to consider this application on the papers.

Facts

2. [2]
   The deceased died on 2 July 2023, leaving an estate in Queensland.
3. [3]
   The deceased made her last will on 25 March 2015.
4. [4]
   The applicants in this case are the children of the deceased and are named in that will as two of the three proposed executors. The third proposed executor was their father, Mr Franciscus Theodorus van Doore, who had passed away prior to the deceased.
5. [5]
   The original will had been held by Robert Gunningham, solicitor.  On or about 25 March 2015, Mr Gunningham released the original will to the deceased and her husband.
6. [6]
   Mr van Doore, one of the applicants, deposes to the fact that he has been unable to locate the original will, despite making every attempt to do so. Mr van Doore exhibits the 25 March 2015 letter from Mr Gunningham, recording the delivery of the original will to the deceased and her husband.  Mr van Doore exhibits a copy of the will which had been certified by a Commissioner for Declarations on 20 August 2015.
7. [7]
   Mr van Doore deposes to the deceased having always been meticulous with her documentation and record-keeping.  He located the certified copy of the will at the deceased’s unit at St Paul de Chartres Retirement Village after her death.  That certified copy was located in the deceased’s files.
8. [8]
   Mr van Doore also deposes, to his understanding, that the deceased and his father had a safe custody deposit at the Bank of Queensland at Sunnybank Hills, and that when his father had passed away, this is where the deceased had retrieved his father’s original will.
9. [9]
   Mr van Doore deposes to the deceased having informed him (and others) that her original will was held in security at the bank.  Mr van Doore deposes that the reference to “the bank” was understood by him to be the Sunnybank Hills branch of the Bank of Queensland, located at the Sunnybank Hills Shoppingtown.  He deposes to having personal knowledge that this was the only bank which the deceased dealt with.  Mr van Doore also deposes to the fact that a few days before the deceased’s death, when she had been taken to Greenslopes Hospital, the deceased requested Mr van Doore and his siblings to attend the hospital.  In discussions with Mr van Doore at the hospital, the deceased then reminded him that the will and important documents were held at “the bank”.
10. [10]
    Mr van Doore deposes to the fact that at no time did the deceased ever indicate to him, or to the best of his knowledge any other member of the family, an intention to destroy the will.  After the deceased’s death, Mr van Doore deposes to having discussions with an identified Bank of Queensland officer, who held the position of ‘Customer Service Manager’ for the Bank of Queensland at Sunnybank Hills.  In those conversations, he pressed the bank officer on several occasions about the documents which, he understood from the deceased, had been stored by her at the bank in security.  The officer told him that the bank had sent all security documents to its head office in Brisbane, and had conducted a thorough investigation and were unable to locate any documents held on behalf of the deceased.  Mr van Doore was further informed by that officer that the Bank of Queensland did have records of a security packet for the deceased, but they had been unable to locate it.  The bank officer suggested that his mother had probably collected the envelope. 
11. [11]
    Mr van Doore then asked the relevant officer if the bank had any acknowledgment of receipt by the deceased in respect of such assumed collection.  In response, he deposes that the bank officer said she was unable to answer.  Mr van Doore further deposes to a belief that the original will had been held by the bank on behalf of the deceased, but had been lost in the transferring of the documents from Sunnybank Hills branch to the head office.  Finally, Mr van Doore deposes to the fact that the deceased had expressed her wishes in regard to the distribution of her estate, and that those wishes are reflected in the certified copy of the will that is annexed to his affidavit.
12. [12]
    I also have an affidavit of a Mr Conrad Comino.  He is the solicitor acting for the applicants in this matter. He deposes to various communications that he has had with the Bank of Queensland since 17 August 2023.  None of those communications provided an adequate explanation as to what may have happened in relation to the original will, which on the balance of probabilities, I find had been held by the Bank of Queensland at its Sunnybank Hills branch for the deceased and her husband.
13. [13]
    In a joint affidavit by both applicants, they exhibited the certified copy of the will, the death certificate of the deceased and identified that the deceased left an estate in Queensland, and had passed away in Queensland.  The applicants exhibited the death certificate of their father, who had passed away before the deceased.  The applicants deposed to the best of their knowledge and information and belief that the deceased had testamentary capacity at the time of executing her will.  The applicants identified themselves as the persons named as executors in the will.
14. [14]
    The applicants further deposed that they know of no other matter which might bear on their standing as fit and proper persons to realise and administer the estate as required by the relevant legislation in this State.

Legal Principles

15. [15]
    There are five matters which I must be satisfied of in order for the Court to grant probate of a lost will:^[1]

    1. there actually was a will;
    2. that the will revoked all previous wills;
    3. the presumption that when a will is not produced it has been destroyed has been overcome;
    4. there must be evidence of the will’s terms; and
    5. there must be evidence of the will’s execution.
16. [16]
    I am satisfied that the five matters have been established on the evidence before the Court.

That there was a will

17. [17]
    The material establishes that the deceased made a will dated 25 March 2015, which was validly witnessed.  It was originally held by the solicitor who drafted it.  It was then provided to the deceased and her husband.  On the balance of probabilities, I find that it had then been delivered to the Sunnybank Hills branch of the Bank of Queensland to be held in safe custody.  A photocopy of the certified copy of that will corroborates that such a will existed.

That the will revoked all previous wills

18. [18]
    Clause 1 of the certified copy of the will provides that it revoked all previous testamentary acts.  The certified copy of the will also provided that it was the last will of the deceased.

The presumption that when a will is not produced it has been destroyed has been overcome

19. [19]
    The standard of proof required is that of the ordinary civil standard.  The original will was held briefly by the solicitor who drafted it, and then was placed into secure storage of the Sunnybank Hills branch of the Bank of Queensland by the deceased and her husband, together with other documents.  During the life of the deceased, and shortly prior to her passing away, she had communicated to her son, who is one of the applicants, that the original will was held at the bank.  I find that the reference to “the bank” was a reference to the Sunnybank Hills branch of the Bank of Queensland.  I find on the balance of probabilities that the original will has been lost by the Bank of Queensland whilst it was being held in secure storage for the benefit of the deceased.  The material before the Court provides an appropriate explanation for its loss after the deceased’s death.  The presumption has been overcome.  I also note that the deceased’s son, who is an applicant, located the certified copy of the will in the files maintained by the deceased at her nursing home address.

There must be evidence of the will’s terms

20. [20]
    The photocopy of the certified copy of the will provides evidence of the terms of the will. 

There must be evidence of the will’s execution

21. [21]
    The photocopy of the certified copy 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.

Conclusion

22. [22]
    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

1. A grant of probate of the will of Ardina Wilhelmina Theresia van Doore, as contained in a copy, dated 25 March 2015, be issued to ADRIANUS THEODORUS VAN DOORE and MAREE ANN MORRIS, as executors, subject to the formal requirements of the Registrar, limited until the original will or more authenticated evidence be brought into and left in the Registry.