In the Will of

[2024] QSC 40

SUPREME COURT OF QUEENSLAND

CITATION:

In the Will of Raymond Bower [2024] QSC 40

PARTIES:

STEPHEN BOWER

(applicant)

FILE NO/S:

BS 2132 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application on the papers

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

1 March 2024

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Bradley J

ORDER:

1. Pursuant to rule 489(1) of the Uniform Civil Procedure Rules 1999 (Qld), this application proceed without an oral hearing.

2.   Subject to the formal requirements of the Registrar, the photocopy of the will of Raymond Bower, formerly of 13/26 Church Street, Wollongong in the State of New South Wales but late of Kartaram Estate, Votualevu, Nadi in the Republic of Fiji, dated 25 August 1992, a copy of which document is exhibit “SB-1” to the affidavit of Stephen Bower supporting the probate application duly affirmed and filed herein, be admitted to probate until the original will or more authenticated evidence be brought into and left in the Registry. 

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – WHEN LOST, MISLAID, DESTROYED OR NOT AVAILABLE – GENERALLY – where the testator duly executed a will and a photocopy of the will was retained by the applicant – where the testator wrote on the back of the photocopy that the original will is stored in a Fijian bank – where the bank has advised that they do not hold any documents for the testator – whether the photocopy of the will should be admitted to probate

SUCCESSION – MAKING OF A WILL – REVOCATION – METHODS OF REVOCATION – DESTRUCTION OR MUTILATION, OR STRIKING OUT PORTIONS – PRESUMPTION THAT WILL MISSING FROM TESTATOR'S CUSTODY INTENDED TO BE REVOKED BY DESTRUCTION – where the testator duly executed a will and a photocopy of the will was retained by the applicant – where the testator wrote on the back of the photocopy that the original will is stored in a Fijian bank – where the bank has advised that they do not hold any documents for the testator – whether the presumption of revocation in the case of a lost will applies

Uniform Civil Procedure Rules 1999 (Qld), r 489

Cahill v Rhodes [2002] NSWSC 561, cited

The Will of Leonie Lyle Warren deceased [2014] QSC 101, cited

SOLICITORS:

Qld Law Group for the applicant

1. The applicant, Stephen Bower, seeks an order that the document comprising three pages, being a copy of the Will of Raymond Bower (the deceased), be admitted to probate. The applicant seeks that this application be decided without an oral hearing. For the reasons set out below, I am satisfied that the application should proceed without an oral hearing, pursuant to r 489(1) of the Uniform Civil Procedure Rules1999 (Qld).

2. The deceased executed a Will (the Will) on 25 August 1992 in the presence of two witnesses.  The Will was prepared by the firm Higgins Dyson & Webley of Wollongong.  The Will revokes all former Wills and testamentary dispositions made by the deceased.  It appoints the deceased’s brother, the applicant, to be the executor and trustee of the Will.  It makes two alterative provisions for the deceased’s assets, dependent upon whether or not his wife Salome Waqa Bower survives him by thirty days.

3. The material before the Court establishes that the deceased made known to the applicant the fact that he had made the Will and gave the applicant a copy of it.  The deceased endorsed on the back sheet of the copy “Original held by ANZ Bank Nadi 378 Queens Rd. Nadi Fiji Islands”.  The deceased signed this endorsement and dated it 25 August 1992.  This is the copy of the Will that has been produced to the Court with this application.

4. In about September 1992, the deceased moved to live permanently in Fiji.  He lived there until his death on 21 March 2022. 

5. After the deceased’s death, his son and the applicant’s solicitors made enquiries of the ANZ Bank in Nadi, Fiji.  They were advised that the bank does not hold any documents for the deceased. 

6. In considering this application, I have adopted the five matters identified by Campbell J in Cahill v Rhodes [2002] NSWSC 561 at [55], which his Honour held must be established to succeed in admitting a copy of a Will to probate. I am satisfied of three of those matters without any detailed consideration, namely:

   (a)there was a Will, being the Will of which the copy exhibited in the application was made;

   (b)that the Will revoked all previous Wills as first clause of the copy of the Will indicates;

   (c)that the entire document is available in copy form. 

7. I am also satisfied that there is evidence of due execution of the document in that the copy of the Will includes the signature of the testator, who affixed his signature in the presence of two witnesses, who are in each other’s presence.

8. The only question which falls for further consideration is whether the presumption of destruction is overcome.  This presumption may be shortly described in the language adopted by Peter Lyons J in The Will of Leonie Lyle Warren deceased [2014] QSC 101 at [11]. It is presumed that a Will was destroyed by a testator with the intention of revoking it if the Will is last traced to the possession of the deceased testator and cannot be found.

9. In the present case the evidence does not trace possession of the original Will to the deceased.  Rather, it traces the possession of the ANZ Bank in Nadi, Fiji.  I am satisfied that it is more likely than not that the original Will was held by the bank and was lost in the intervening years when the deceased, through age, illness and inactivity, ceased to have contact with the bank. 

10. In the circumstances, I am satisfied of each of the five matters necessary in order to admit to probate a copy of a Will.

11. In the circumstances, it is appropriate to make an order admitting the copy of a Will to probate.  Subject to the formal requirements of the Registrar, the copy of the Will of Raymond Bower of Kartaram Estate, Votualevu, Nadi, Fiji should be admitted to probate until the original Will or more authenticated evidence is brought into and filed with the Registry.