Re Colassin

[2012] QSC 155

SUPREME COURT OF QUEENSLAND

CITATION:

Re: Colassin [2012] QSC 155

PARTIES:

ANA BELLA COLASSIN
(Applicant)

FILE NO/S:

BS 4156 of 2012

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

16 May 2012

DELIVERED AT:

Brisbane

HEARING DATE:

16 May 2012

JUDGE:

McMurdo J

ORDER:

(1) Probate to be granted of the copy of the Will of Marie Louise Colassin, dated 22 August 2006, until the original Will or a more authenticated copy is provided in the registry to the Court.

(2) The applicant is to have her costs of and incidental to the application on an indemnity basis and such costs are to be paid out of the Estate.

CATCHWORDS:

Re Clayton (Deceased) [1957] QWN 35, considered
Re Henderson [1996] 1 Qd R 249, considered

COUNSEL:

R Cameron for the applicant

SOLICITORS:

Nathan Lawyers for the applicant

1. This is an application for a grant of probate of a copy of what is said to be the last will of Marie Louise Colassin, who died on 4 April last.

1. The document is a copy of a document in the form of a will apparently signed by Mrs Colassin and witnessed by two persons and dated 22 August 2006.

1. There is no opposition to the application.  It was served upon two siblings of Mrs Colassin, each of whom lives in Europe.  There is an affidavit from a Queensland solicitor, sworn yesterday, to the effect that he holds instructions from them, and that they do not oppose the orders sought.

1. The application is made by the deceased's daughter daughter‑in‑law.  Under the document, the whole of the deceased's estate was left to her and her son; that is, the deceased's grandson.

1. The evidence is that a solicitor prepared this document upon the instructions of Mrs Colassin, and posted it to her on the 16th of August 2006, with advice as to the manner in which it should be executed.  There is evidence from the persons, whose names and apparent signatures appear on the document as witnesses, to the effect that they duly witnessed her execution of the document.

1. There is also evidence from the solicitor who prepared the document, at least when that evidence is read with the affidavit of the applicant, which is to the effect that the copy was returned to the solicitor by the 22nd of August 2006.  There is clear proof, then, that the will prepared by the solicitor and sent to the deceased was, indeed, executed by her and duly witnessed.

1. The applicant's evidence is that, after the death of the deceased, she was unable to locate the original within the deceased's papers.  I am satisfied, in these circumstances, that there should be a grant of probate of the document which is the copy.  It is a case of the kind described by Justice Williams in Re Henderson [1996] 1 Qd R 249; that is to say, one in which, not only is there no opposition to the grant, but the facts are reasonably clear.

1. The applicant will, therefore, have orders in terms of the draft.  The first of those orders is in terms of providing her with leave to prove this copy of the will.  The necessity for that particular order need not be discussed here, but counsel referred me to Re Clayton (Deceased) [1957] QWN 35, in which it was thought appropriate to make an order in those terms in a case such as the present.

1. I have signed that form of order and placed it with the file.