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 the deceased wasmarried and had two children – where thewill left her estate to her husband unless he predeceased her and then to hertwochildren – where both the deceased’s husband and one of thechildren predeceased her – where the original willwas, after itsexecution, retained by the deceased – where upon the death of the deceasedthe original will could not be located– where the surviving child wasestranged from the deceased for a period prior to the deceased’s death– wherethe surviving child accepts she cannot overcome the presumption ofrevocation of the will – where the surviving child madeapplication forletters of administration in intestacy – where the surviving child has
priority to letters of administration
– whether letters of administration
of the will ought to be granted to the surviving child
Succession Act 1981 (Qld), s 35,
s 36A
Uniform Civil Procedure Rules 1999 (Qld), r 489, r
494, r 495, r 610
Allan v Morrison [1900] UKLawRpAC 41
[1900] AC 604, followed
Cahill v Rhodes [2002] NSWSC 561, followed
Frizzo v Frizzo
[2011] QSC
107, followed
In the will of Dianne Margaret Cardie [2013] QSC
265, followed
In the will of Leonie Lyle Warren deceased [2014] QSC
101, followed
Judgment (30 paragraphs)
[1]
[1] This is an application by Toni Lee Allen for letters of administration upon intestacy of the estate of her deceased mother, Shirley Lynette Dart,[1] who died on 10 November 2024.
[2] Shirley was married to Geoffrey Kingston Dart. He died on 18 December 2012.
[3] Shirley had two children, Toni and a son, Craig Andrew, by a relationship other than with Geoffrey. Craig predeceased Shirley.
[4] On 24 February 2003, Shirley made a will. By that will she appointed Geoffrey as executor and trustee but in default of that appointment she appointed Toni and Steven Anthony Allen. There is no direct evidence as to the relationship of Steven to Toni or to Shirley but I suspect that Steven is Toni's husband. Nothing turns on this.
[5] The 2003 will appears to be validly executed and there is no reason to suggest it is not a valid will. It contains a clause stating: "I cancel my earlier wills", which is a valid revocation of all prior testamentary instruments. The will leaves Shirley's entire estate to Geoffrey but if he did not survive her then the whole estate to Toni.
[6] As already observed, Geoffrey did not survive Shirley. Therefore, the 2003 will would operate to vest the entirety of Shirley's estate upon Toni.
[7] While a copy of the 2003 will was found, the original was not. Toni swore in her affidavit that both Shirley and Geoffrey had made wills prior to 24 February 2003 but both made new wills on that date. Toni was given copies of the wills and Geoffrey and Shirley retained the originals.
[8] Toni had no contact with Shirley after 8 March 2013. Shirley had the assistance of her attorney, a Mr Mel Mann, but in 2021 he was sentenced to a lengthy period in prison.
[9] Shirley suffered from dementia. She lived the last part of her life in the Narangba Aged Care Home. She had no visitors in the last four years of her life. The will cannot be located. Law firms in the vicinity of Narangba, Beerwah, Caboolture, and Morayfield have all been contacted and none appear to have acted for Shirley in the preparation of a new will, or at all. The Public Trustee of Queensland has no records of her.
[10] Inquiries of the solicitor who drafted the 2003 will and witnessed Shirley's execution of it recalls that Shirley was given the original will. Narangba Aged Care Home does not hold any documents for Shirley.
[2]
(a) should the application be determined without oral hearing?; and
(b) should letters of administration in intestacy be given to Toni?
[3]
Should the application be determined 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.
[7]
(2) If the applicant proposes the application be decided without an oral hearing, the court must decide the application without an oral hearing unless -
[8]
(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."
[9]
(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).
[10]
(a) there are no respondents to the application and therefore no respondent who requires an oral hearing;[2]
(b) Toni has not abandoned the request for a decision without an oral hearing;[3] and
(c) the Chief Justice has not suspended the operation of r 489 by direction.[4]
[11]
[15] Consequently, the only question is whether it is inappropriate to proceed without oral hearing.[5]
[16] There are two possibilities. The first is that the 2003 will was not revoked by Shirley and, therefore, a copy of that will should be admitted to probate. The second alternative is that Shirley destroyed the will with the intention of revoking it and she has died intestate. There is no suggestion that the 2003 will was not valid, so it served to revoke all prior testamentary instruments, whether or not it was then itself revoked. Upon the death of Geoffrey, Toni became the sole beneficiary under the 2003 will. As Craig died without issue, Toni would take the entirety of Shirley's estate under the rules of intestacy.[6] Therefore, Toni is the only person interested in Shirley's estate. There are no facts seriously in issue. The principles of law concerning the grant of probate of a copy of a will are well established and do not, for reasons which later appear, require any analysis. It is appropriate to deal with the application without oral hearing.
[12]
Should there be a grant of letters of administration upon intestacy?
[13]
[17] The original of the will is not available. A copy of a will can be admitted to probate.
[18] 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:
[14]
(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[10] 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).
[15]
[19] Factors 1, 2, 4 and 5 are satisfied here. A copy of the will is available. Its terms can be discerned and it is validly executed. The difficulty with admitting a copy of the 2003 will to probate is that Toni cannot overcome the presumption described above as factor 3. The evidence is that the will was last in the possession of Shirley. There is no evidence at all as to what happened to it. If anything, it might be thought that Shirley did destroy the will as she was estranged from Toni for a number of years. Toni does not assert that she can overcome the presumption and in my view, that concession is a correct one.
"(1) The descending order of priority of persons to whom the court may grant letters of administration on intestacy is as follows -
[17]
(c) the deceased's grandchildren or great-grandchildren;
[18]
(f) the children of deceased brothers and sisters of the deceased;
[19]
[22] Geoffrey is deceased. Therefore, there is no "surviving spouse". Toni is the only surviving child of Shirley and consequently she has priority to a grant of letters of administration of Shirley's estate.
[23] It is appropriate to make a grant in favour of Toni.
Subject to the formal requirements of the Registrar, letters of administration upon intestacy for the estate of Shirley Lynette Dart (deceased) be granted to the applicant Toni Lee Allen as administrator.
[21]
[1] For convenience, but with no disrespect intended, I shall refer to all persons by their Christian names.