Ruling notes lawyer who prepared will sent testator a copy then retained original
Queensland’s Supreme Court granted the applicant executor a probate with a photocopy of her deceased husband’s will upon permitting the application to proceed sans an oral hearing under r 489(1) of the Uniform Civil Procedure Rules 1999 (Qld).
In Wan (deceased), Re, [2025] QSC 270, the deceased was married to the applicant at the time of his death on 24 June 2025 at age 89. He left a will made on 5 March 2009, of which only a copy was available.
The will:
P. Lilley, the solicitor who prepared the will, advised the deceased in writing on 5 March 2009 that he would retain the deceased’s and the applicant’s wills in his securities. He attached a copy of the signed will. Lilley joined Chesterfield Lawyers in 2010 and retired from practice in 2012.
J. McManus, a director of Chesterfield Lawyers, acted for the deceased and the applicant after Lilley’s retirement. McManus left for Dowd & Company Lawyers, then became a solicitor at O’Shea & Partners, the applicant’s solicitors. Neither O’Shea & Partners nor Dowd + Wilson, Dowd & Company’s successor, held the will.
Upon Lilley’s retirement, all safe custody documents he held on the deceased’s behalf went to C. Lillie of Chilli Law. Lillie later became a partner of Bennett & Philp, which did not possess the will.
Advertisements asked anyone who might have the will to contact McManus. However, nobody came forward.
The applicant applied for probate of a copy of the deceased’s will and requested a determination of the application without an oral hearing.
The Supreme Court of Queensland in Brisbane ruled that the will made on 5 March 2009 was the deceased’s last will, was not revoked, and was appropriate for admission to probate, with the applicant as executor.
First, the court determined that the applicant was the only executor willing and able to act. The court noted that B.Y.C. Wan allegedly had a progressive medical condition and impaired decision-making capacity, while J.C.S. Wan renounced her right to the executorship.
Second, the court deemed it appropriate to allow the application to proceed without an oral hearing. The court said the only reasonable inference was that somebody misplaced the will in the office of either Lilley or a solicitor handling his securities upon his retirement.
Third, given the unavailability of the will’s original, the court granted the applicant as executor a probate with a copy of the will, subject to the registrar’s formal requirements.
The court referred to Frizzo v Frizzo, [2011] QSC 107, which provided that the applicant should establish five factors for the admission of the will’s copy to probate:
The court held that the applicant met the first, second, fourth, and fifth factors.
Regarding the third factor, the court explained that the presumption did not arise because it inferred that the original will did not pass into the deceased’s possession.
The court determined that the evidence demonstrated that Lilley sent a copy of the will to the deceased but retained the original, which was later lost during the solicitors’ dealings, in his securities.
