Allan v Morrison

(a) all former wills are revoked;

(b) Gary, Ross and Lyndal are appointed executors and trustees;

(c) various specific gifts are made;[3]

(d) the residue is left to Gary, Ross and Lyndal in equal shares; and

(e) provision is made in the event that either Gary, Ross or Lyndal predecease Glenda (which they did not).

• [5] After the will was executed, it was retained in safe custody at Rowell Gill & Brown. In March of 2012, the original will, and other documents, were sent by Rowell Gill & Brown to new solicitors retained by Gary, namely HWS Lawyers. The will was retained in HWS's safe custody.
• [6] On 29 May 2018, all documents held in HWS's safe custody for Gary were sent to him. Gary swears in his affidavit that the documents received by him in 2018 from HWS Lawyers included Glenda's original will.
• [7] Glenda died on 6 July 2025. By that stage, HWS Lawyers had been subsumed into Keypoint Law who had taken possession of the safe custody records of HWS Lawyers. They confirmed that the records showed release of all the safe custody documents to Gary in May of 2018.
• [8] Gary swears that he believes the original will was lost by him sometime after 29 May 2018. He now applies for probate of a copy of the will.
• [9] Lyndal has signed a document where she says: "...[I] consent to and support the application for a grant of probate of a copy of the Will being made by Gary with power being reserved to make the same grant to Ross Graham Smith and me when we shall apply for a grant personally." Ross has signed a similar document.
• [10] Gary also applies for an order that the costs of the application be paid from the estate on an indemnity basis.

(a) should the application be determined without oral hearing?; and

(b) should probate be granted of a copy of the will?

Should the application be determined without oral hearing?

• [12] Rule 489 of the Uniform Civil Procedure Rules 1999 (Qld) provides for decisions without an oral hearing of an application:

"489 Proposal for decision without oral hearing

(1) A party making an application, including an application in a proceeding, may propose in the application that it be decided without an oral hearing.

(2) If the applicant proposes the application be decided without an oral hearing, the court must decide the application without an oral hearing unless -

(a) under rule 491, the court considers it inappropriate to do so; or

(b) under rule 494, the respondent requires an oral hearing; or

(c) under rule 495, the applicant abandons the request for a decision without an oral hearing; or

(d) the Chief Justice or Chief Judge suspends the operation of this rule by direction."

(a) jurisdiction to proceed without an oral hearing is granted;

(b) that jurisdiction is enlivened by a proposal by an applicant; and

(c) the proposal must be accepted by the Court in the absence of any of the circumstances prescribed in rr 489(2)(a)-(d).

(a) the only interested parties other than the applicant Gary, are Ross and Lyndal and they both support the application. Therefore, no party requires an oral hearing.[4]

(b) Gary has not abandoned the request for a decision without an oral hearing;[5] and

(c) the Chief Justice has not suspended the operation of r 489 by direction.[6]

• [15] Consequently, the only question remaining is whether it is inappropriate to proceed without oral hearing.[7]
• [16] As explained later, the only real question on the application for a copy of the will to be admitted to probate is whether Gary can rebut the presumption that Glenda destroyed the original will with the intention to revoke it. While that is a factual question, the circumstances against which an inference might be drawn either way are not in dispute. The principles of law concerning the grant of probate of a copy of a will are well established and do not require detailed analysis. It is, therefore, appropriate to deal with the application without oral hearing.

Should there be a grant of probate with a copy of the will?

• [17] In Frizzo v Frizzo,[8] Applegarth J followed Cahill v Rhodes[9] and held that five matters must be established for a successful application for the admission to probate of a copy of a will.[10] These are:

(a) there was actually a will or a document purporting to embody the testamentary intentions of the deceased person (factor 1);

(b) that will or document revoked all previous wills (factor 2);

(c) the applicant must overcome the presumption[11] that if the will cannot be produced to the Court, it was destroyed by the testator with the intention of revoking it (factor 3);

(d) there is evidence of the terms of the will (factor 4); and

(e) the will was duly executed or that the deceased person intended the document to constitute his or her will (factor 5).

• [18] Factors 1, 2, 4 and 5 are satisfied here. A copy of the will is available. Its terms can be discerned and it appears on its face to be validly executed, and revokes all earlier wills. The only issue is whether Gary can overcome the presumption described above as factor 3.
• [19] Where the original of a will has been in the possession of the testator but then cannot be located after the testator's death, difficult questions can arise. Because the testator had possession of the will, it was within the power of the testator to destroy it with the intention of revoking it. No direct evidence of intention is then available as the only real witness is the testator who is by that point deceased.
• [20] Here, that difficulty does not arise. Glenda had the will prepared by solicitors who kept the document in their safe custody until its passage to another firm of solicitors occurred. Then the will went to Gary. All of that was documented.
• [21] Gary swears that he took possession of the will and never passed it on to Glenda. There is no reason not to accept Gary's evidence. There is a strong inference available from the independent evidence that Gary has misplaced the will. That inference is strengthened because that is what he swears happened.
• [22] I am satisfied that the will was not revoked by Glenda and probate should be given of the copy will.
• [23] As earlier observed, Gary seeks his costs of the application on an indemnity basis. That is the usual order. However, here, the application for probate of a copy of the will is only necessary because Gary has misplaced the original. That might be a factor suggestive of no order for costs in his favour but his siblings support the application and there is no suggestion that they seek to deny him the costs. In those circumstances, he should have the benefit of an order.

• [24] The orders are:
  1. Pursuant to r 489(1) of the Uniform Civil Procedure Rules 1999 (Qld), this application is to proceed without an oral hearing.
  2. Subject to the formal requirements of the Registrar, a grant of probate with a copy of the will of Glenda Lorraine Smith (deceased) dated 28 June 2002 be granted to Gary Warwick Smith as executor with power being reserved to make the same grant to Ross Graham Smith and Lyndal Ann Jenkins when they shall apply for a grant personally.
  3. The costs of the applicant, Gary Warwick Smith, be paid out of the estate of Glenda Lorraine Smith (deceased) on the indemnity basis.

[1] I shall refer to all the various persons by their first given name for convenience and without meaning any disrespect.

[4] Uniform Civil Procedure Rules 1999, rr 494 and 489(2)(b).

[5] Uniform Civil Procedure Rules 1999, rr 495 and 489(2)(c).

[6] Uniform Civil Procedure Rules 1999, r 489(2)(d).

[7] Uniform Civil Procedure Rules 1999, r 489(2)(a).

[8] [2011] QSC 107.

[9] [2002] NSWSC 561.

[10] Frizzo v Frizzo [2011] QSC 107 at [161]; see also, In the Will of Leonie Lyle Warren (deceased) [2014] QSC 101 at [8].

[11] See Allan v Morrison [1900] UKLawRpAC 41; [1900] AC 604; and In the Will of Leonie Lyle Warren deceased [2014] QSC 101 at [11].