When applying for a grant of probate in Queensland the executor must submit a ‘Notice of Intended Application’ to the Queensland Law Reporter and wait at least 14 days following the appearance of the notice to enable people to object to the application before proceeding with the application.
Additionally, a copy of the ‘Notice of Intended Application’ must be delivered to the Public Trustee – a minimum of 7 days after which an application for probate can be lodged.
Chapter 15, r596–643 of the Uniform Civil Procedure Rules 1999, provides the necessary steps to apply for a grant of probate these include providing the original will and death certificate, an Inventory of property and Affidavits of Applicant, publication and searches.
Lost Will
It has been accepted in Queensland that for a “lost” will to be admitted to probate, the following five matters must be established:
“First, it must be established that there actually was a Will, or a document purporting to embody the testamentary intentions of a deceased person; second, it must be shown that that document revoked all previous Wills, third, the presumption that when a Will is not produced it has been destroyed must be overcome, fourth, there must be evidence of its terms, and fifth, there must be either evidence of due execution or that the deceased person intended the document to constitute his or her will.”
Frizzo v Frizzo [2011] QSC 107 at [161].
The question of whether a will is wholly revoked by a later will addressed in Payten v Perpetual Trustee Company Ltd[2005] NSWSC 345
“The approach of the older cases was that there would be no inconsistency unless the two sets of dispositions were incapable of standing together, and where they were, the later dispositions revoked the former only to the extent of the inconsistency… But the more modern approach seems to be that the issue is one of construing the testator’s intention, so that a later instrument may be held completely to supersede an earlier, although the two are not entirely inconsistent, if the court can discern that this was the testator’s intention”.
at [100]
The matter
In Re Forbes (deceased) [2023] QSC 18 the applicant sought an order for a grant of probate in respect of a photocopy of the Will of the deceased.
The Court was satisfied that a photocopy of the Will satisfies the following matters:
(a) a Will existed;
(b) the Will revoked all previous Wills;
(d) the terms of the Will can be ascertained; and
(e) the Will was duly executed.
The original Will was in the possession of the deceased’s Solicitor from the date it was executed in April 1984 until her death.
The applicant submitted that she had contacted the deceased’s solicitor to locate the original Wills of her mother and father. The original Wills were extracted by an employee of the firm, photocopied and then sent to the applicant. Subsequently, it seems the original Will was mislaid. The firm’s records show that it retained the original Will and the deceased’s solicitor was satisfied based on the firm’s records that the deceased’s original Will did not leave the firm’s possession.
The applicant submitted that extensive searches were carried out to try and locate the original Will. The Court was satisfied that it is most likely the original Will was misplaced by the law firm that had custody of the original Will when it was removed from safekeeping to take a photocopy of the Will to send to the applicant. Therefore the presumption of a lost Will being destroyed and therefore revoked does not arise.
The decision
The Court ordered the Grant of Probate of a photocopy of the Will of the late Shirley Margaret Forbes, under rule 597 of the Uniform Civil Procedure Rules 1989 (Qld) to the applicant until the original Will or more authenticated evidence be brought into and left in the Registry. Costs of the application are to be paid out of the deceased’s estate on an indemnity basis.
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