In the will of Dianne Margaret Cardie [2013] QSC 265 (26 September 2013)

[1] CHIEF JUSTICE: Earlier today I ordered that a copy will, dated 21 April 1989, of the deceased Dianne Margaret Cardie, be admitted to probate, with a grant in favour of the deceased's only sister, Heather Joy Newbery, the executor named in that copy will.

[2] Mr Williams, Counsel for the applicant, asked me to express the reasons why I made the order.

[3] The deceased's mother had provided a copy of the deceased's will to the Public Trustee. The Public Trustee was appointed guardian and administrator of the estate of the deceased - who was hospitalized with alcoholic dementia and died on 14 May 2012. A comprehensive search has not uncovered the original will, and public advertisements seeking information about its location produced no result. The deceased's only child, her son David, is her only beneficiary under the will.

[4] The copy will, if authentic, indicates that the original was properly executed, and its content involved rational distribution of the deceased's estate. In the original of the copy, the testator revokes all former wills.

[5] The son of the deceased, incidentally, would also be the only beneficiary on an intestacy. The practical consequence of now admitting the copy will, I imagine, have been to save prospective costs.

[6] The reason why Mr Williams asked me to provide reasons rested, he said, in divergence between the applicable principles as expounded in New South Wales and Queensland, and the procedural approach applicable in South Australia.

[7] The position in New South Wales is established by Curley v Duff (1985) 2 NSWLR 716, 718-9 and Cahill v Rhodes [2002] NSWSC 561, para 55.

[8] The position in Queensland was recently dealt with by McMeekin J in Price v Tickle [2011] QSC 206, para 26, and by Applegarth J in Frizzo v Frizzo [2011] QSC 107.

[9] In South Australia, Rule 68 of the Probate Rules 2004 nominates procedural requirements specific to applications in that State for the admission of copy wills. There is no such provision in Queensland, where the law is materially the same as in New South Wales.

[10] The South Australian requirements are these:

68.01 An application for an order admitting to proof a nuncupative will made in accordance with section 11 of the Wills Act, 1936, or a will contained in a copy, a completed draft, a reconstruction or other evidence of its contents where the original will is not available, may be made without notice to any other party to the Registrar by summons in the Form No. 33.

Provided that where a will is not available owing to its being retained in the custody of a foreign Court or official or a Court of official of any of the Australian States or Territories a duly authenticated copy of the will may be admitted to proof without such order as aforesaid.

68.02 The application shall be supported by an affidavit setting out the grounds of the application and by such evidence on affidavit as the applicant can adduce as to -

(b) its existence after the death of the testator (or if the will cannot be found at the testator's death such evidence as shall rebut a presumption of its revocation by the testator); and

(c) the accuracy of the copy or other evidence of the contents of the will;

together with the consents in writing to the application given by all persons who may be prejudiced by the grant:

Provided that if a person who is prejudiced by the application is not sui juris or cannot be ascertained or found, or if the Registrar is satisfied that in the circumstances it is just and expedient to do so, the Registrar may dispense with such consent."

[11] Those requirements are probably no more burdensome than those applicable here, because of the limitation that the applicant is obliged to lead evidence of the matters in (a), (b) and (c) only so far as the applicant is able to do so. One would ordinarily expect those features to be addressed here, although our approach in this jurisdiction is less prescriptive.

[12] In any event, lest there be doubt, the position here, in my view, is the same as applies in New South Wales, as confirmed for their part by McMeekin J in Price and Applegarth J in Frizzo.

[13] It may be useful if I set out the relevant extracts from those New South Wales cases.

[14] In Curley v Duff, supra, Young J said:

"As I understand it, five matters must be established when it is sought to have probate of a lost will. First, it must be established that there actually was a will (see Re Molloy [1969] 1 NSWLR 400), secondly, it must be shown that that will revoked all previous wills, thirdly, that the presumption that when a will is not produced it has been destroyed must be overcome (see Allan v Morrison [1900] AC 604), fourthly, there must be evidence of its terms, and fifthly, evidence of due execution (see Gair v Bowers [1909] HCA 57; (1909) 9 CLR 510).

[15] In Cahill v Rhodes, supra Campbell J slightly embellished those requirements in the context of subsequent New South Wales legislative change:

"55 To take account of section 18A, the formulation of the five requirements which Young J laid down in Curley v Duff, needs to be modified as follows:

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 the 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 executive or that the deceased person intended the document to constitute his or her Will."

**[16] The assumption may from time to time have been made that the authority to admit a copy will to probate resides in s 18 of the Succession Act 1981. I would not consider that to be authority for admitting a copy of a missing will to probate.

[17] Section 18 relates to dispensation with requirements as to execution, and it says, in sub-section (2), in relation to an inadequately executed document:**

"(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." (emphasis added)

**[18] Here, the testator did not intend the copy to be her will. She intended the original to be her will.

[19] The authority to admit a copy to probate derives from the common law, not section 18. That common law jurisdiction pre-dated, and has survived, ameliorative statutory provisions such as section 18.

[20] I deal seriatim with the principles applicable to the admission to probate of a copy of a missing will:**

1. This copy demonstrates that as at its date, 21 April 1989, there was an original will.

2. That document specifically provided for the revocation of all prior wills.

3. The absence of the original will does not warrant the presumption that the original was destroyed: there is no evidence that the testator deposited the original will with anyone else, so that she should be seen as likely having retained it herself; her condition in life supported an inference that she probably mislaid or lost it having regard to her state of health, she probably would not have been in a position to make another will, certainly as from the commencement of the Public Trustee's administration in mid-2002; and there was no change in the circumstances which bore on her likely testamentary intentions as between 1989 and 2002. These circumstances rebut the presumption of revocation.

4. The terms of the will evidenced by the copy are clear and comprehensive.

5. Evidently from that copy, the original was properly executed.

[21] I was therefore prepared to admit the copy to probate, and I did so on the usual basis, that is, until the original will or more authenticated evidence of it should be brought into and left in the Registry.