Re Last (deceased)[2025] QSC 116

SUPREME COURT OF QUEENSLAND

1. [1]
   Probate is sought on a copy of the will of Herbert Henry Last who, with all respect, I shall refer to as Herbert, who died on 20 September 2024.

Background

2. [2]
   On 13 May 2016 Herbert made a will.
3. [3]
   The will was prepared by a firm of solicitors, ACS Legal Solutions.
4. [4]
   By the terms of the will Herbert appointed his son, Malcolm John Last, as joint trustee and executor of his estate with “… the Principal at the time of my passing, of ACS LEGAL SOLUTIONS”.
5. [5]
   Herbert then bequeathed the estate in one-third shares to each of his daughter, Linda Joy Ware, his son, Malcolm, and the children of his son, Michael Wayne Last.  Michael predeceased Herbert and had died prior to the making of the will on 13 May 2016.
6. [6]
   After execution of the will it was retained by ACS.  However, those solicitors relocated their offices in 2018.  As part of the process of relocation, they wrote to Herbert in these terms:

“Just a quick note to let you know that our office has relocated to a new premises at 1/9-13 Waldron street, Yarrabilba.  Rest assured your safe custody has relocated with us to our new office and is locked up safe and sound in our new safe custody store room.

If you wish to review your documents or have any questions feel free to contact myself or Melissa Buchanan on the contact details below …”^[1]

7. [7]
   That letter was authored by Jocelynne Berry who, with Ms Melissa Buchanan, also named in the letter, were the principals of ACS Legal Solutions at the time of Herbert’s death.  They are, therefore, with Malcolm, the nominated executors and trustees of Herbert’s will.
8. [8]
   Herbert collected the will a few months later on 18 February 2019.  Neither Ms Buchanan nor Ms Berry have seen the original will since Herbert removed it from their safe custody.
9. [9]
   Around 16 May 2023, Malcolm had a conversation with Herbert.  Herbert provided a copy of the will to Malcolm and there was a discussion about its terms and about Herbert’s testamentary intentions.  None of that conversation was inconsistent with the terms of the copy of the will that was produced.  Herbert told Malcolm that his sister had been provided with a copy of the will.  Herbert told Malcolm that he, Herbert, also retained a copy. 
10. [10]
    Herbert died on 20 September 2024 at the age of 82.  In the period between 16 May 2023 and Herbert’s death in September 2024, Malcolm was not advised by Herbert that he had made a new will or that he had decided to revoke the will that he had made in May 2016.
11. [11]
    After Herbert’s death, Malcolm contacted ACS and learned that the original will had been collected by Herbert on 18 February 2019.  Malcolm then thought that the copy of the will which he had been given by Herbert was the original.  A staff member of ACS inspected the document in the possession of Malcolm and ascertained that it was only a copy of the will.
12. [12]
    Malcolm conducted a search of Herbert’s last residence and located a copy of the will, but not the original.  Malcolm’s sister had received a copy of the will from Herbert and that was held by her in her safe.  That document was recovered by Malcolm, but it is not the original. 
13. [13]
    As already observed, Herbert was elderly at the time of his death.  ACS, no doubt considering that, given Herbert’s age, if he was to make a new will with solicitors other than ACS, it was likely to be a solicitor in his local area, wrote to solicitors’ firms in the vicinity inquiring as to whether they held his will.  Those inquiries proved negative.  The advertising prescribed by the Uniform Civil Procedure Rules 1999 (UCPR)^[2] has not revealed either the original will or any later, competing will.

Determination without oral hearing

14. [14]
    Rule 489 of the UCPR provides:

“489  Proposal for decision without oral hearing

1. A party making an application, including an application in a proceeding, may propose in the application that it be decided without an oral hearing.

2. If the applicant proposes the application be decided without an oral hearing, the court must decide the application without an oral hearing unless–

1. under rule 491, the court considers it inappropriate to do so; or

2. under rule 494, the respondent requires an oral hearing; or

3. under rule 495, the applicant abandons the request for a decision without an oral hearing; or

4. the Chief Justice or Chief Judge suspends the operation of this rule by direction.”

15. [15]
    The structure of r 489 is that:

    1. jurisdiction to proceed without an oral hearing is granted;
    2. the jurisdiction is enlivened by a proposal by an applicant; and
    3. the proposal must be accepted by the Court in the absence of any of the circumstances prescribed in rr 489(2)(a)-(d).
16. [16]
    None of the circumstances identified in r 489(2)(b) or (c) or (d) arise.  The sole question is whether the Court considers it inappropriate to determine the matter without oral hearing.^[3]  For reasons which appear below, the only issue is whether the applicants have displaced the presumption that if the will cannot be produced to the Court it was destroyed by the testator with the intention of revoking it.^[4]  The facts relevant to that determination are in narrow compass and there is no reason to think those facts are contentious.  In the circumstances, no reason is identified rendering it inappropriate to deal with the matter without oral hearing, and I will do so. 

Relevant principles

17. [17]
    There is no provision in the Succession Act 1981 which empowers the court to grant probate to a copy of a will.^[5]  However, there is no doubt that the court has jurisdiction to grant probate of a copy of a will^[6] and that power is sourced in the common law.^[7]
18. [18]
    In Frizzo v Frizzo,^[8] Applegarth J followed Cahill v Rhodes^[9] and held that five matters must be established for a successful application for the admission to probate of a copy will.^[10]  These are

    1. there was actually a will or a document purporting to embody the testamentary intentions of the deceased person (factor 1);
    2. that will or document revoked all previous wills (factor 2);
    3. the applicant overcomes the presumption^[11] 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).
19. [19]
    There are advertising requirements for an application for probate.^[12]  These have been complied with.  The only difficulty with probate is 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

20. [20]
    There is no reason to think that Herbert did not execute the will.  It was prepared by solicitors.  The witnesses are paralegals.  Herbert produced a copy of the will, which bears his signature, to Malcolm, and asserted that it was his will.  The will, on its face, is clearly intended to be a testamentary document embodying the intentions of Herbert.  Factors 1 and 5 are fulfilled.
21. [21]
    The terms of the will are expressed in the copy that has been produced and one of the terms revokes all previous wills.  Factors 2 and 4 are fulfilled.
22. [22]
    The only issue then is factor 3, namely whether the applicants have overcome the presumption that the will was destroyed by Herbert, with the intention of revoking it.

Do the applicants overcome the presumption that the will was destroyed by Herbert, with the intention of revoking it?

23. [23]
    While there is a mystery as to the fate of the original will, in my view, the evidence quite strongly points to the inference that Herbert did not destroy the will with a view to revoking it.
24. [24]
    Herbert collected the will from his solicitors’ offices on 18 February 2019.  His motivation for doing so is unclear.  However, after collecting the original he delivered a copy to his two surviving children, now, of course, adults.  That was a pointless and illogical exercise if his intention was that the will was to have no effect.  Herbert also went to the trouble of meeting with Malcolm and discussing the terms of the copy will.  Again, that is pointless if he did not intend the will to continue to have effect.
25. [25]
    I find then that as of 16 May 2023, which is about the day Mr Herbert met with Malcolm, he had not revoked the will. 
26. [26]
    For reasons I explain below, in my view, it is highly unlikely that Herbert revoked the will between May 2023 and the time of his death about 16 months later on 20 September 2024. 
27. [27]
    Herbert had, by the time he made his will in 2016, shown that he wished to provide for the distribution of his estate upon his death.  This was important to him.  He had discussed it with Malcolm in May 2023 and provided Malcolm with a copy of the will.  It is, therefore, highly unlikely that he would have revoked the will made in May 2016 without making an alternative will.
28. [28]
    The evidence suggests that no alternative will was made by Herbert after May 2023.  The advertising has not revealed a later will.  No solicitors in Herbert’s local area have any record of taking instructions from Herbert to draw a new will.  There was no will made after May 2016 found in Herbert’s possession after his death.
29. [29]
    The meeting with Malcolm in May 2023 shows Herbert’s inclination to discuss his testamentary intentions with his son.  There were no discussions about any new will made after May 2023. 
30. [30]
    The will evidences Herbert’s intention to distribute his estate in what might almost be considered the only logical way.  The will splits his estate between his three children, but recognises that one has predeceased him and that the share of that child should be distributed to that child’s children.  There is no evidence of any change in circumstances after May 2023 which might suggest why Herbert would change that plan. 
31. [31]
    Herbert retained a copy of the will.  It is illogical to think that he would have destroyed the original will with the intention of revoking it, yet retained a copy right up to the time of his death.

Conclusions

32. [32]
    I find that the original of the will made by Herbert Henry Last on 13 May 2016 has become lost in circumstances that cannot be determined.  However, I find that the will was not destroyed by Herbert with the intention of revoking it, and I find that his intention was that the will, of which only a copy is in existence, was intended to have force as his last testamentary instrument.
33. [33]
    It is appropriate that probate be granted of the copy of the will.

Orders

34. [34]
    It is ordered:

1. Pursuant to r 489(1) of the Uniform Civil Procedure Rules 1999, the application proceed without an oral hearing.
2. Subject to the formal requirements of the Registrar, a grant of probate of the copy of the will of Herbert Henry Last (deceased), dated 13 May 2016 being exhibit A to the Affidavit of Malcolm John Last, be granted to Malcolm John Last, Melissa Jane Buchanan and Jocelynne Naomi Berry as executors, until the original will or more authenticated evidence be brought into and left in the Registry of this Court.