In the Will of Kenneth Thomas Strutt
[2025] QSC 98
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- Unreported Judgment
- In the Will of Kenneth Thomas Strutt[2025] QSC 98
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In the Will of Kenneth Thomas Strutt[2025] QSC 98
In the Will of Kenneth Thomas Strutt[2025] QSC 98
SUPREME COURT OF QUEENSLAND
CITATION: | In the Will of Kenneth Thomas Strutt [2025] QSC 98 |
PARTIES: | In the Will of Kenneth Thomas Strutt Gail Patricia Cater AND Karen Lee Krueger AND Shelley Lynne Cooke (applicants) |
FILE NO/S: | BS SE01389/25 |
DIVISION: | Trial |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | Orders made on 9 May 2025 Judgment delivered on 9 May 2025 |
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: | Files Stibbe Lawyers for the applicant |
- [1]This is an application by Gail Patricia Cater, Karen Lee Krueger and Shelley Lynne Cooke that a copy of the Will of Kenneth Thomas Strutt (deceased) dated 7 October 2023 be admitted to probate. The copy of that Will is exhibit DBS 1 to the affidavit of Dean Bradley Stibbe.
- [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 and the terms of the Will and that it revoked all previous Wills are proved by the photocopy of the Will.
- [4]The due execution of the Will 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. 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.[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.