In the Will of

[2023] QSC 28

SUPREME COURT OF QUEENSLAND

CITATION:

In the Will of Anna Ang Lee Chin (also known as Anna Ang Lee Chin)  [2023] QSC 28

PARTIES:

IN THE WILL OF ANNA ANG LEE CHIN (ALSO KNOWN AS ANNA ANG LEE CHIN)

LAST ADDRESS: 11 ANGELICA STREET ELANORA IN THE STATE OF QUEENSLAND

FILE NO/S:

1303 of 2023

DIVISION:

Trial Division

PROCEEDING:

1303/23

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

20 February 2023

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Wilson J

ORDER:

Orders signed as per draft

SOLICITORS:

Attwood Marshall Lawyers for the executor

1. Anna Chin (also known as Anna Ang Lee Chin) (“the deceased”) died on 11 October 2022.  At the time of her death she was widowed and did not leave any issue. There were no children who predeceased the deceased.

2. The Will dated 2 August 1994 appoints the deceased’s husband Mr Lesley Chin as the executor and sole beneficiary of the estate. Mr Chin predeceased the deceased.

3. The Will appoints the deceased’s sisters, Nancy Hung and Esther Ang as the substitute executors and beneficiaries of the estate. Esther Ang predeceased the deceased.

4. This is an application by Nancy Hung for a grant of probate of the Will of the deceased as contained in a copy dated 2 August 1994 be made to the applicant limited until the original Will or more authenticated evidence be brought into and left in the Supreme Court Registry subject to formal requirements of the Registrar.

5. The applicant also sought that the application be decided without an oral hearing.  I am satisfied, in the circumstances, that this is an appropriate course.

6. The solicitor’s firm of Brian Hayne and Associates (“the deceased’s solicitors) held the original Will of Mr Lesley Chin and the deceased. After Mr Chin died, these solicitors sent both Mr Chin’s original Will and the deceased’s original Will to the deceased on 17 November 2003 (“the 2003 correspondence”).

7. The location of the deceased’s original Will cannot be found.

8. In May 2006 the deceased gave the applicant a certified copy of the Will shortly after it was certified.  She states that she was sitting with the deceased and her sister, Esther Ang, and the deceased explained to them both what they had to do as executors. The deceased said words to the effect “you need to make sure all of my bills are paid and then you get the rest.” The deceased than handed the certified copy of the will to the applicant and said words to the effect “when I pass away this is the copy of Will you need to use.”

9. The applicant states that she has been in possession of this certified will since this time.

10. The applicant states that the deceased kept all of her important papers in her filing cabinet at her home; the applicant helped the deceased set up this filing cabinet after the death of her husband.

11. The applicant lived with deceased from approximately 2001 until she died.  The applicant states that she and the deceased were close and at no time did the deceased express to her any intention to update or amend her will. 

12. In or around 2014 the applicant states that the deceased started to get forgetful and the applicant was informed by the deceased’s doctor at the time that the deceased was showing signs of dementia.

13. The applicant states that in the later years of the deceased’s life, the deceased began to move her important documents from the filing cabinet. The deceased would tell the applicant that “someone stole my marriage certificate”.

14. The applicant states that the deceased would regularly move important documents; particularly at night when the deceased would wander.

15. In late 2022, the applicant conducted a thorough search of the deceased’s paperwork at the deceased’s home. The applicant states that despite extensive searches she could not locate the original Will. 

16. Further, the applicant is not aware of the deceased engaging the services of another solicitor or depositing any documents with a solicitor or bank.

17. The applicant’ solicitors have made enquiries with Westpac bank and Commonwealth bank, who the deceased banked with, to see if they held any security documents on behalf of the deceased. Neither bank held a security packet on behalf of the deceased.  

18. In Frizzo v Frizzo,[1] Applegarth J followed the judgment of the New South Wales Supreme Court in Cahill v Rhodes[2], and held that five matters must be established for a copy of a “lost” will to be admitted to probate: 

    a.there actually was a will, or a document purporting to embody the testamentary intentions of a deceased person;

    b.that document revoked all previous wills;

    c.the presumption that when a will is not produced it has been destroyed has been overcome;

    d.there is evidence of its terms; and

    e.there is either evidence of due execution or that the deceased person intended the document to constitute his or her will.

    [1][2011] QSC 107 at [161].

    [2][2002] NSWSC 561 at [55].

19. I note that Peter Lyons J in In the will of Leonie Warren deceased[3] adopted the description of the presumption of destruction given in Lee’s Manual of Succession Law:

    “… the law presumes that, if a will last traced to the possession of the deceased testator cannot be found, it was destroyed by the testator with the intention of revoking it.”

    [3][2014] QSC 101 at [11], quoting Alun A Preece, Lee's Manual of Queensland Succession Law (Lawbook Co, 7th ed, 2013) at [5.220]. 

20. In this case the original Will can be traced to the possession of the deceased in 2003 and it can no longer be found.

21. However, in this case, I am satisfied, that the presumption of destruction can be overcome, taking into account the following factors;

    a.The deceased provided the applicant with a certified copy of the will in 2006 along with instructions as to what the applicant needed to do, as an executor, upon her death;

    b.The applicant were close sisters who lived with each other since 2011 and the deceased never expressed to the applicant, any intention to update or amend her Will.

    c.The deceased’s important documents were kept in her filing cabinet in her home. In the later years of the deceased’s life, when showing signs of dementia, the deceased began moving documents from this filing cabinet at night when she wandered around the house.

    d.There is no evidence that the applicant deposited the will with anyone else.

22. In these circumstances, it is a reasonable inference that the will was misplaced.

23. Accordingly, in this case, upon the material before me I am satisfied that all five factors as set out by Applegarth in Frizzo are met.

    a.There was a will as evidenced by the certified copy of the Will provided to the applicant;

    b.Clause 1 of this Will contains a revocation clause;

    c.The presumption of destruction is overcome:

    d.There is evidence of the Will’s terms as evidenced by the certified copy of the Will;

    e.There is evidence of due execution as evidenced by the certified copy of the Will.

24. Accordingly, I will sign the draft order.