In the Will of

[2023] QSC 7

SUPREME COURT OF QUEENSLAND

CITATION:

In the Will of David Arthur Friend (deceased) [2023] QSC 7

PARTIES:

SHELDON PAUL FRIEND and MIRINDA LEE VOGLINO

(applicants)

FILE NO/S:

15090/2022

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

On the papers (31 January 2023)

DELIVERED AT:

Brisbane

HEARING DATE:

19 January 2023

JUDGE:

Brown J

ORDER:

1.   Probate of a photocopy of the Will of the deceased dated 10 March 2020 be granted to the Applicant, limited until the original Will or more authenticated evidence is brought and left in the registry.

CATCHWORDS:

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 the applicants brought an application for probate of a photocopy of the deceased’s Will – where the original Will was stolen from the solicitor’s car – whether probate should be granted in the circumstances

SOLICITORS:

Lockett McCullough Lawyers for the applicants

1. The applicants apply for probate of a photocopy of the Will of Mr David Arthur Friend dated 10 March 2020 to be granted to them limited until the original Will or more authenticated evidence is brought and left in the Registry. 

2. The circumstances in which probate of the photocopy of the Will is sought are highly unusual.  The applicants engaged the solicitors, Lockett McCullough Lawyers, to prepare an application for probate for the deceased. 

3. Ms Lockett, the solicitor with carriage of the matter, deposes to the fact that she was the last person to have possession of the original Will of the deceased. The Will contains reference to two dates: the execution clause refers to 7 August 2018 while the Will cover refers to 10 March 2020. According to Ms Lockett it was made on 10 March 2020.  Ms Lockett had the original Will in her car when travelling between her firm’s two offices.  She deposes to the fact that her car was broken into and the original Will stolen.  While the car was recovered, the contents of the car were not.  Specifically the original Will of David Arthur Friend was not recovered.

4. The applicants held a photocopy of the Will which is “Exhibit A” to their joint affidavit.

5. The application has been served on the Public Trustee and a copy of the application advertised in the Queensland Law Reporter. 

6. In order for a grant of probate to be made in respect of a copy Will, there are five matters which must be satisfied.  These were outlined by Applegarth J in Frizzo & Anor v Frizzo & Ors.[1]  Relevantly it must be established that:

   (a)there is actually a Will or document purporting to embody the testamentary intentions of a deceased person;

   (b)the document revoked all previous Wills;

   (c)the presumption that when a Will is not produced it has been destroyed is overcome;

   (d)there is evidence of the Will’s 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] quoting Cahill v Rhodes [2002] NSWSC 561 at [55].

7. All five requirements are established by the evidence in the present case. It is clear on the face of the copy Will that (a), (b), (d) and (e) are established. As to the presumption that when a Will is not produced it has been destroyed being overcome, this is not a case where the presumption arises since the original was in fact produced after the deceased’s death, held by the solicitor responsible for probate and was only lost subsequently.  In the circumstances it is established that the deceased did not destroy the original Will. 

8. In the circumstances, it is appropriate to grant the application.  I will make the order in accordance with the draft.