Lost Will, Administration & the Public Trustee

The Public Trustee of Queensland applied for an order to administer the estate of Kevin Middleton, who died in Brisbane on 22 December 2016, under s 29(1)(a) of the Public Trustee Act 1978 (Qld) (“PTA”) the Public Trustee administered Kevin’s estate under s 36(1) of the PTA.

If you die intestate in Queensland, your assets are distributed according to the rules of intestacy under the Succession Act 1981 (the Act). An intestate estate will be distributed initially to a spouse and issue (children, grandchildren). Where there is no spouse or issue, it goes to parents, brothers and sisters, nephews, and nieces, then grandparents, then uncles, aunts, and cousins – there is no provision under the Act to distribute an intestate estate to relatives more remote than first cousins.

Kevin never married and had no children. He was predeceased by his parents and de facto partner Shirley who had four children including the respondent, Paul. Additionally, there was some suggestion Paul has an acquired brain injury that may affect his cognitive functioning. The Court was asked to find whether Kevin left a will and whether Paul is entitled to a grant of administration of the Will.

In Queensland proof of the due execution of a will is subject to the operation of s 18 of the Succession Act 1981 (Qld); 18(2)provides

(2)  The document or the part forms a will, an alteration of a will, or a full or partial revocation of a will, of the deceased person if the court is satisfied that the person intended the document or part to form the person’s will, an alteration to the person’s will or a full or partial revocation of the person’s will.

On 5 June 2018, Paul’s brother Gary lodged a caveat against a grant of probate or administration in relation to Kevin’s estate. A probate caveat may be lodged to prevent an administrator or executor from being appointed. Gary lodged a notice of withdrawal of the caveat on 27 February 2020.

On 15 October 2018, Paul applied for letters of administration of the Kevin’s estate. However, as Paul is not a person entitled to take an interest in Kevin’s estate on intestacy, nor to a grant of administration on intestacy the application for letters of administration did not proceed.

When the application for a grant of administration on intestacy came before the Court on 24 September 2021 Paul – who was representing himself – submitted evidence that he had lost a copy of a previous Will Kevin had executed. The Court adjourned the proceedings to a later date directing that if there is or has been a Will Paul must prove its existence, execution, and contents by affidavit.

On 1 October 2021, Paul submitted affidavit evidence suggesting that there was or may have been a Will providing Paul would be sole beneficiary of the estate if Shirley predeceased Kevin; the original Will was kept securely until it was removed by Gary.  Paul’s copy of the original document was destroyed by a fire at his home – along with most of his belongings.

 That the Court accepted that:

  •  Kevin intended the document to be his will or part of his will under s 18(2);
  • Paul was to be sole beneficiary of Kevin’s estate if Shirley predeceased Kevin
  • Kevin did not destroy the Will with the intention to revoke it.

However felt it was appropriate that the Public Trustee continue to be the administrator of Kevin’s estate as Paul lacks the skills necessary to do so and the Public Trustee  has been administering Kevin’s estate since 2016

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