QLDQSC

Allan v Morrison

[2025] QSC 270

Supreme Court of Queensland|2025-10-21|Before: Davis J

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General information, not legal advice.

At a glance

Source facts

Court

Supreme Court of Queensland

Decision date

2025-10-21

Before

Davis J

Catchwords

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF
PROBATE AND LETTERS OF ADMINISTRATION – LIMITED,
SPECIAL AND CONDITIONAL
GRANTS OF PROBATE AND ADMINISTRATION – where the deceased made a will

Source

Original judgment source is linked above.

Catchwords

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OFPROBATE AND LETTERS OF ADMINISTRATION – LIMITED,SPECIAL AND CONDITIONALGRANTS OF PROBATE AND ADMINISTRATION – where the deceased made a will– where a copy of the willwas delivered to the deceased – where theoriginal will was retained by the solicitor who prepared it – where thesolicitorretired from practice – where the solicitor subsequently died– where the will cannot be found – whether probateof a copy willought to be granted to the applicantUniform Civil Procedure Rules 1999 (Qld), r 489, r 494, r495Allan v Morrison [1900] UKLawRpAC 41[1900] AC 604, citedCahill v Rhodes[2002] NSWSC 561, citedFrizzo v Frizzo [2011] QSC107, followedIn the will of Leonie Lyle Warren (deceased) [2014] QSC

Judgment (29 paragraphs)

[1]

[1] This is an application by Rowena Wing Ying Wan[1] for probate of a copy of the will of Jimmy Chee Mee Wan. She seeks to have the application determined without oral hearing.
[2] Jimmy was married to Rowena at the time of his death. He died at Greenslopes Private Hospital on 24 June 2025 at the age of 89.
[3] Jimmy left a will made on 5 March 2009. Only a copy of that will is available.
[4] By the will:

[2]

(a) all former wills are revoked;

(b) Rowena, Betty Yun Chee Wan, and Jeanette Chiu Soon Wan are named as executors and trustees of the will;

(c) Jimmy's principal place of residence vests in the trustees upon them giving permission for Rowena to live in the house during her lifetime;

(d) Jimmy's interests in various properties are vested upon the Wan Family Trust;

(e) various specific gifts are made; and

(f) the rest and residue is left to Rowena.[2]

[3]

[5] The will was prepared by a solicitor, Peter Lilley. Mr Lilley practised on his own account until about 2010, when he joined the firm Chesterfield Lawyers. By the time Mr Lilley joined that firm, Jimmy's will had been made. Mr Lilley retired from practice in about 2012.
[6] Records show that on 5 March 2009, Mr Lilley wrote to Jimmy enclosing a photocopy of the signed will and advising that Jimmy's will and a will made by Rowena would be retained in Mr Lilley's securities.
[7] Records show that upon Mr Lilley's retirement, all safe custody documents held by him on behalf of Jimmy were transferred to Mr Chris Lillie at Chilli Law. Mr Lillie became a partner of solicitors Bennett & Philp. Bennett & Philp do not hold Jimmy's will.
[8] Mr James McManus is a solicitor employed by O'Shea & Partners, the solicitors for Rowena, and who previously acted for Jimmy. Mr McManus was a director of Chesterfield Lawyers before leaving to join Dowd & Company Lawyers and then to O'Shea & Partners. Mr McManus acted for Jimmy and Rowena from the retirement of Mr Peter Lilley. Jimmy's will is not held by Dowd + Wilson, the successor of Dowd & Company. It is not held by O'Shea & Partners.
[9] Advertisements have been placed in the Queensland Law Society's publication Proctor and the Queensland Law Reporter, requesting persons who might have the will to contact Mr McManus. No persons have come forward.
[10] As earlier observed, three executors were appointed by Jimmy in the will being Rowena, Betty, and Jeanette. Matthew Joseph is a medical practitioner who practises as a consultant geriatrician and physician. He has opined, in a report dated 26 February 2024: "Betty Wan has a progressive medical condition and hence her decision-making capacity for health, financial, and lifestyle matters is impaired." It is inappropriate, therefore, for Betty to occupy the position of executor of Jimmy's will.
[11] Jeanette has renounced her right to executorship.
[12] As well as seeking probate, Rowena seeks an order that the costs of the application be paid from the estate on the indemnity basis.

[4]

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

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

(c) should Rowena have her costs from the estate?

[5]

Should the application be determined without oral hearing?

[6]

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

[7]

"489 Proposal for decision without oral hearing

[8]

(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.

[9]

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

[10]

(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."

[11]

(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 by r 489(2)(a)-(d).

[12]

(a) Rowena appears to be the only party interested in the application for grant of probate. No one has sought to be heard. Therefore, no party requires an oral hearing;[3]

(b) Rowena has not abandoned the request for a decision without an oral hearing;[4] and

(c) the Chief Justice has not suspended the operation of r 489 by direction.[5]

[13]

[17] Consequently, the only question remaining is whether it is inappropriate to proceed without oral hearing.[6]
[18] The principles of law concerning the grant of probate of a copy of a will are well established and do not require detailed analysis. The circumstances surrounding the loss of the will seem clear to the extent that the only reasonable inference is that the will has been misplaced in the office of either Mr Peter Lilley or one of the solicitors who may have had dealing with his securities upon his retirement. It is appropriate, therefore, to deal with the application without oral hearing.

[14]

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

[15]

[19] The original of the will is not available. A copy of a will can be admitted to probate.
[20] In Frizzo v Frizzo,[7] Applegarth J followed Cahill v Rhodes[8] and held that five matters must be established for a successful application for the admission to probate of a copy will.[9] These are:

[16]

(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 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).

[17]

[21] 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. It revokes all earlier wills. The only issue is whether Rowena can overcome the presumption described above as factor 3.
[22] I draw the inference that the original will was not sent to Jimmy. The evidence shows that Mr Lilley sent a copy of the will to Jimmy but retained the original in his securities. I find that the will has been lost in the course of dealings between solicitors. There is no suggestion that the original will ever passed into Jimmy's possession and, therefore, any presumption described as factor 3 does not arise.
[23] I am satisfied that the last will of Jimmy was the one he made on 5 March 2009. There is no evidence suggesting that the will has been revoked and as Rowena is the only executor willing and able to act, she should have probate.

[18]

[24] As earlier observed, Rowena seeks her costs of the application on an indemnity basis. That is the usual order. It was necessary for the application to be made and she should have her costs on the indemnity basis.

[19]

Pursuant to r 489(1) of the Uniform Civil Procedure Rules 1999 (Qld), this application is to proceed without an oral hearing.
Subject to the formal requirements of the Registrar, a grant of probate with a copy of the will of Jimmy Chee Mee Wan (deceased) be granted to Rowena Wing Ying Wan as executor.
The costs of the applicant, Rowena Wing Ying Wan, be paid out of the estate of Jimmy Chee Mee Wan on the indemnity basis.

[20]

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

[21]

[2] The list is not meant as a complete list of the provisions of the will.

[22]

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

[23]

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

[24]

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

[25]

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