Re Forbes (deceased)

[2023] QSC 189

SUPREME COURT OF QUEENSLAND

CITATION:

Re Forbes (deceased) [2023] QSC 189

PARTIES:

IN THE WILL OF SHIRLEY MARGARET FORBES, DECEASED

JULIE FORBES

(applicant)

FILE NO/S:

BS No 9533 of 23

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 August 2023

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Brown J

ORDER:

1.   Subject to the formal requirements of the Registrar, a Grant of Probate of a photocopy of the Will of the late Shirley Margaret Forbes, being Exhibit “JF1” to the Affidavit of Julie Forbes sworn 7 July 2023, be granted pursuant to rule 597 of the Uniform Civil Procedure Rules 1989 (Qld) to the said Julie Forbes until the original Will or more authenticated evidence be brought into and left in the Registry.

2.   The applicant’s costs of the application be paid out of the deceased’s Estate on the indemnity basis.

CATCHWORDS:

SUCCESSION – 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 applicant brought an application for a grant of probate in respect of a photocopy of the deceased’s Will – where the original Will was in the possession of a law firm but cannot be located – whether a copy of the Will should be admitted to probate

SOLICITORS:

Geoff Williams & Associates for the applicant

1. The applicant seeks an order for a grant of probate in respect of a photocopy of the Will of Shirley Margaret Forbes.[1]

   [1]Exhibit JF1 to the Affidavit of Julie Forbes sworn 7 June 2023.

2. In order for the Court to make such an order, it must be satisfied of five matters which were reiterated by Applegarth J in Frizzo v Frizzo[2], namely that:

   (a)a Will existed;

   (b)the Will revoked all previous Wills;

   (c)the presumption of a lost Will being destroyed and therefore revoked is overcome;

   (d)the terms of the Will can be ascertained; and

   (e)the Will was duly executed.

   [2][2011] QSC 107 at [161].

3. The evidence relied upon satisfies me that all those matters are established.  Four of those matters are satisfied on the face of the photocopy of the Will over which probate is sought. 

4. As to the presumption of a lost Will being destroyed and therefore revoked being overcome, the evidence shows in this case that the presumption does not arise at all because the original Will was not in the possession of the deceased after it was executed, but rather was in the possession of Williamson Isabella Lawyers from 17 April 1984 until the death of the deceased.  The evidence shows that Ms Julie Forbes contacted Mr Robert Davidson of that firm to locate the original Wills of her mother and father. The original Wills were extracted by an employee of the firm and a photocopy made of both which were then sent to Ms Forbes. It appears that the original Will was then subsequently mislaid. The firm’s LEAP indexing card shows that the Will was held in the firm’s deed compactus and Mr Davidson is satisfied based on the firm’s indexing system that the deceased’s original Will did not leave the firm’s possession. Extensive searches have been deposed to as having been  carried out to try and locate the original Will by Mr Williams, Mr Davidson and Ms Forbes.  I am satisfied that it is most likely that the original Will was misplaced in the law firm which had custody of the original Will when it was removed to take a photocopy of the Will to send to Ms Forbes. 

5. I am satisfied that the application can be determined on the papers and that the proposed order for the grant of probate can be made. 

6. The proposed costs order is the usual costs order that would be made in circumstances such as these and is appropriate. 

7. I note that the notice of intention to apply for grant was published as required as a notice in the Queensland Law Reporter and a notice of an intention to apply for grant was served on the Public Trustee. 

8. I will therefore make the order in accordance with the draft order that has been provided, save for a minor amendment and the addition of the words “until the original Will or more authenticated evidence be brought into and left in the Registry”.