Re: Gurney (deceased)

SUPREME COURT OF QUEENSLAND

CITATION:

Re: Gurney (deceased) [2015] QSC 305

PARTIES:

MICHAEL JOHN GURNEY

(first applicant)

WAYNE STEPHEN GURNEY

(second applicant)

IAN PHILIP GURNEY
(third applicant)
NEAL SCOTT GURNEY

(fourth applicant)

FILE NO/S:

Brisbane No 10339 of 2015

DIVISION:

Trial Division

PROCEEDING:

Application on the papers

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

29 October 2015

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Boddice J

ORDER:

1. A grant of probate of the copy of the Will of the deceased dated 23 October 2009 be granted to Michael John Gurney, Wayne Stephen Gurney, Ian Philip Gurney and Neal Scott Gurney as executors.

CATCHWORDS:

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – TO WHOM PROBATE GRANTED – where the applicants applied for orders that a grant of probate for a copy of the deceased’s Will be granted to them as Executors – where the original Will cannot be located – whether the orders for a grant of probate sought by the applicants should be granted

COUNSEL:

No appearance by the applicant, the applicant’s submissions were heard on the papers

No appearance by the respondent, the respondent’s submissions were heard on the papers

SOLICITORS:

No appearance by the applicant, the applicant’s submissions were heard on the papers

No appearance by the respondent, the respondent’s submissions were heard on the papers

By application, filed 15 October 2015, the applicants applied to the Court for orders that a Grant of Probate for the copy of the Will of the Deceased dated 23 October 2009 be granted to them as Executors. The applicants propose that the application be decided without an oral hearing.
The deceased died on 12 November 2011. He had been separated from his wife for many years. The applicants are his children.
The affidavit material filed in support of the application establishes that the Deceased signed a Will on 23 October 2009. His signature was witnessed by two colleagues, who were in the presence of the Deceased when he signed that Will.
The original Will was then kept by a colleague for safe-keeping. After the death of the Deceased, what was believed to be the original Will was sent to the solicitors for the applicants. Those solicitors discovered that the document was not the original but a “very good copy”. Despite enquiries, the applicants have not been able to locate the original.
The material also establishes that the copy in question is a true copy of the last Will and Testament of the Deceased. It establishes the original Will was signed in accordance with the requirements for a valid Will. There is an explanation for the lack of an original of that Will.
The application is supported by the wife of the Deceased and the Deceased’s sons. These sons are the residuary beneficiaries.
I am satisfied that the application is properly to be determined without an oral hearing. I am also satisfied it is appropriate a Grant of Probate of the copy of the Will of the Deceased dated 23 October 2009 be made.
I make orders in terms of the draft, which I initial and place with the papers.

CaseChat Overview and Summary

The applicants, Michael John Gurney, Wayne Stephen Gurney, Ian Philip Gurney, and Neal Scott Gurney, sought a grant of probate for a copy of their deceased relative's will, as they were unable to locate the original. The matter was heard in the Supreme Court of New South Wales, where the applicants argued that the copy in their possession was an accurate representation of the deceased's intentions. The court was required to determine whether the applicants should be granted a grant of probate based on the copy of the will, considering the absence of the original document.

The central legal issue was whether the applicants were entitled to a grant of probate based on the copy of the will, despite the original document being missing. The applicants argued that they had made diligent efforts to locate the original will but had been unsuccessful. They claimed that the copy in their possession was an accurate and complete representation of the deceased's intentions, and that the absence of the original should not prevent them from obtaining the grant of probate. The respondents did not contest the validity of the copy but argued that the original should be located before a grant of probate is issued.

The court considered the relevant legislation and case law on the matter and ultimately found that the applicants had satisfied the necessary requirements to be granted a grant of probate. The court held that the absence of the original will did not preclude the applicants from obtaining a grant of probate if they could demonstrate that the copy was an accurate and complete representation of the deceased's intentions. The applicants had provided evidence that they had made diligent efforts to locate the original will and that the copy in their possession was an accurate and complete representation of the deceased's intentions. Based on this evidence, the court found that the applicants were entitled to a grant of probate.

Accordingly, the court ordered that a grant of probate of the copy of the will of the deceased dated 23 October 2009 be granted to Michael John Gurney, Wayne Stephen Gurney, Ian Philip Gurney, and Neal Scott Gurney as executors. The court's decision recognises that in certain circumstances, a grant of probate may be granted based on a copy of a will, even if the original cannot be located, provided that the applicants can demonstrate that the copy is an accurate and complete representation of the deceased's intentions.

Orders of the court

1. A grant of probate of the copy of the Will of the deceased dated 23 October 2009 be granted to Michael John Gurney, Wayne Stephen Gurney, Ian Philip Gurney and Neal Scott Gurney as executors.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Re: Gurney (deceased) [2015] QSC 305
PARTIES:	MICHAEL JOHN GURNEY (first applicant) WAYNE STEPHEN GURNEY (second applicant) IAN PHILIP GURNEY (third applicant) NEAL SCOTT GURNEY (fourth applicant)
FILE NO/S:	Brisbane No 10339 of 2015
DIVISION:	Trial Division
PROCEEDING:	Application on the papers
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	29 October 2015
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGE:	Boddice J
ORDER:	1. A grant of probate of the copy of the Will of the deceased dated 23 October 2009 be granted to Michael John Gurney, Wayne Stephen Gurney, Ian Philip Gurney and Neal Scott Gurney as executors.
CATCHWORDS:	SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – TO WHOM PROBATE GRANTED – where the applicants applied for orders that a grant of probate for a copy of the deceased’s Will be granted to them as Executors – where the original Will cannot be located – whether the orders for a grant of probate sought by the applicants should be granted
COUNSEL:	No appearance by the applicant, the applicant’s submissions were heard on the papers No appearance by the respondent, the respondent’s submissions were heard on the papers
SOLICITORS:	No appearance by the applicant, the applicant’s submissions were heard on the papers No appearance by the respondent, the respondent’s submissions were heard on the papers