In the Will of

[2024] QSC 84

SUPREME COURT OF QUEENSLAND

CITATION:

In the Will of Frances Monica Smith [2024] QSC 84

PARTIES:

PAUL JOSEPH SMITH AND MADONNA ELIZABETH JENNER AS EXECUTORS OF THE WILL OF FRANCES MONICA SMITH

(Applicants)

FILE NO:

BS 5221 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 May 2024

DELIVERED AT:

Brisbane

HEARING DATE:

Application on the papers

JUDGE:

Brown J

ORDER:

Probate of a photocopy of the Will of Frances Monica Smith dated 21 September 2016, be issued to Paul Joseph Smith and Madonna Elizabeth Jenner, as executors, subject to the formal requirements of the Registrar, 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 – whether probate should be granted in the circumstances

SOLICITORS:

McCullough Robertson Lawyers for the applicants

1. I have determined probate of the copy of the will of Frances Monica Smith dated

   
   

   21 September 2016, and which is Exhibit PJS-1 to the affidavit of Paul Joseph Smith, be granted to Paul Joseph Smith and Madonna Elizabeth Jenner as executors. With no disrespect intended, but for ease of reference, I will refer to the applicants as Paul and Madonna.

2. Frances Monica Smith, the deceased, was the aunt of the applicants.  In 2016, she showed her nephew and executor the copy of her will dated 16 March 1999 but said she wanted to change the will to make Madonna, her niece, Paul’s co-executor because Maria, their other sibling, who was the co-executor, had moved overseas to live in France.

3. Paul suggested that Ms Smith see his solicitor because she said she was not comfortable travelling to the city to see her original solicitor.  Subsequently, Ms Smith showed him the will she prepared with his solicitor, Robert Maggs, which was dated 21 September 2016 (the Will), and at that time also showed him her filing system in her wardrobe.  Paul took a photo of the executed will at the time.

4. Ms Smith had told Madonna that she had changed her will so she was an executor and at that time also had her sign her acceptance as an attorney. 

5. In 2019, Ms Smith had to move into care. The family assisted to clean out her two bedroom quadplex, which was a self-contained unit at St Vincent’s.  According to Madonna, she found a version of the will in Ms Smith’s wardrobe and handed it to Paul.  Madonna is unable to recall whether it was the original or the copy.  Paul does not have the original Will, having searched his paperwork.  He thinks it may have been thrown out by the family when cleaning the unit. 

6. A copy of the will was obtained from Robert Maggs after Ms Smith died.  He confirmed that he provided the deceased with an original, as was his practice, and only kept a copy.  This copy matched the will which Paul had taken a photo of, which is Exhibit PJS-1.

7. In order to admit a copy of a will to probate, the Court must be satisfied of five matters, as has been stated in numerous authorities, including by Applegarth J in Frizzo v Frizzo.[1]  The five matters that must be established are:

   (a)First, it must be established that there actually was a will, or a document purporting to embody the testamentary intentions of a deceased person;

   (b)Second, it must be shown that the document revoked all previous wills;

   (c)Third, the presumption that when a will is not produced it has been destroyed must be overcome;

   (d)Fourth, there must be evidence of its terms; and

   (e)Fifth, there must either evidence of due execution or that the deceased person intended the document to constitute his or her own will.

   [1][2011] QSC 107 at [161], following Cahill v Rhodes [2002] NSWSC 561 at [55].

8. In the present case, the copy of the Will exhibited in PJS-1 demonstrates that the first, second, fourth and fifth matters have been established, the fifth matter being demonstrated by the photograph of the Will taken by Paul Smith, supporting the certified copy of the Will given by Robert Maggs to Paul.

9. As to the question of the presumption of revocation, there is a real question whether the presumption arises if, in fact, the Will that was found by Madonna and given to Paul when Ms Smith was moving to high care was the original.  However, assuming that it was not the original, I am satisfied that the presumption is rebutted by the fact that she had told both Paul and Madonna where the Will was located and the fact that she had changed his co-executor to Madonna.  No events had occurred between the deceased and the proposed beneficiaries under the Will, her nephews and nieces who are to share equally, between the time that she showed Paul her Will and told Madonna of its existence and her death.  The likely explanation for the original Will not being found is that Madonna in fact located Ms Smith’s original Will during the move of Ms Smith to High Care at St Vincent’s and it got subsequently lost in the process of moving. 

10. I have therefore determined to make the order in accordance with the draft, noting that this application was made on the papers and that there has been advertising of the intention to apply for a grant of probate of the Will.