The Document
On 1 March 1996, John Webster executed a document, prepared by the Clerk of the Court in Barcaldine acting as agent for the Public Trustee entitled “Instructions for Will Appointing Lionel Walsh sole executor and trustee”(“the document”) directing that his entire estate be divided equally among his siblings: Margaret Walsh, Robert Webster, and Ronald Webster.
Of the two attesting witnesses to the document, one cannot recall the circumstances of its execution. The other swears that John was “capable of making decisions”, “knew what he was doing” and recalls that John described the document as “his Will”. After the document was executed John gave it to Lionel who placed it into his office safe in an envelope.
The Break-in
On the morning of 6 June 2000, it was found that Lionel’s office had been broken into overnight. The office safe had been opened and documents from the safe had been scattered all over the floor. The document was found in the office torn. Lionel placed sticky tape on the tears and then posted the document to the Public Trustee in Rockhampton for safekeeping.
Intestacy
John died on 13 May 2013. On 24 May 2013, the Public Trustee advised that due to the fact the document had been torn it was necessary to apply for letters of administration on intestacy.
John was predeceased by his brother Robert Webster who had four children, two of whom have renounced any interest in John’s estate, and the remaining two, Kim Webster-Coombes (“the respondent”) and Kerry Delahunty, were interested parties as beneficiaries under intestacy.
On 30 July 2013, Lionel instructed a solicitor to apply for letters of administration of the estate on the basis he had died intestate on 29 August 2013.
“…. There were cattle on one of the assets of the estate that were required to be sold because there is little feed and the waters are inadequate… some of the cattle must be mustered off the property quickly or they will die. We cannot shift them because they have John’s brand…”
The letters of administration were granted on 3 September 2013, the estate has yet to be fully administered.
CPD Seminar
Sometime following the grant of administration Lionel provided the solicitor with a copy of the document. In 2016, the solicitor attended a continuing professional development(CPD) seminar where the topic of “torn wills” arose. When the solicitor described how the Will had been torn he was informed that it could be the subject of an application for Probate as the deceased’s Last Will.
Following this the solicitor explained to Lionel they could bring an application for probate; however, Lionel was concerned about the costs of going to court with such a small estate. This discussion went on “for several years. Meanwhile, the solicitor was attending to matters regarding other family estates, including the estate of the grandmother, and the father of the respondents.
The Application
On 10 August 2020 Lionel sought orders that the grant of letters of administration be revoked, and Probate of the document be granted.
The issues to be determined in the application were:
1. is the document the Last Will and Testament of John Dyson Webster; if it is not, the grant of letters of administration would not be revoked.
2. if the document is a Will, was it revoked?
3. if the document is the Last Will and Testament of John Dyson Webster, is it appropriate under the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) to exercise the Courts discretion in favour of revoking the grant of letters of administration.
The respondent argues that the discretion ought not to be exercised as the applicant elected to pursue the grant of letters of administration and there has been a significant delay between John’s death in May 2013 and the bringing of the application on 10 August 2020.
The Decision
The Court accepted that the document was intended by John to constitute his Will and was not revoked. The grant of administration was made due to the mistaken advice that the Will could not be admitted to probate because it had been torn.
As the document is the Will of John Webster, and expresses his true testamentary intention, the Court considered it is appropriate to exercise the jurisdiction under s 6(1) of the Succession Act and r 642 of the UCPR to revoke the grant of letters of administration made on 3 September 2013 and admit the document to probate as the Last Will and Testament of the deceased.
heirs & successes 