SUPREME COURT OF QUEENSLAND

CITATION:	Re Middleton (deceased) [2021] QSC 264	
PARTIES:	THE PUBLIC TRUSTEE OF QUEENSLAND
(applicant)
v
PAUL GREGORY CONOMOS
(respondent)	
FILE NO/S:	BS 897 of 2020	
DIVISION:	Trial Division	
PROCEEDING:	Originating Application	
ORIGINATING COURT:	Supreme Court at Brisbane	
DELIVERED ON:	20 October 2021	
DELIVERED AT:	Brisbane	
HEARING DATE/S:	24 September 2021 and 15 October 2021	
JUDGE:	Jackson J	
ORDER:	The order of the Court is that:
Declare that, in or about 2003, the deceased wrote and executed a document which was in effect in the words following:
“I Kevin John Middleton of 1/26 Kreutzer Street, Nundah do hereby revoke all my previous wills and declare this to be my final will and testament.
I give my estate in its entirety to my de facto wife Shirley Joyce Conomos and in the event that she predeceases me to my stepson Paul Gregory Conomos.”
Declare that at the time of his writing and executing the document the deceased intended it to form his will.
Declare that at the time of the deceased’s death the will had not been revoked.
Subject to compliance with the Rules of Court, and subject to the consent of the Public Trustee given under s 27(3) of the Public Trustee Act 1978 (Qld), letters of administration be granted to the applicant with the will annexed as set out in 1 above, the original of the will not having been found.	

	The applicant’s costs of the proceeding be paid out of the deceased’s estate on the indemnity basis.
Liberty to apply.	
CATCHWORDS:	SUCCESSION – MAKING OF A WILL – REVOCATION – METHODS OF REVOCATION – DESTRUCTION OR MUTILATION, OR STRIKING OUT PORTIONS – PRESUMPTION THAT WILL MISSING FROM TESTATOR’S CUSTODY INTENDED TO BE REVOKED BY DESTRUCTION – REBUTTAL OF PRESUMPTION –
where the deceased died with no surviving spouse, issue or parents – where the respondent is the son of the deceased’s de facto wife – where the applicant submits the deceased died intestate and presently administers the deceased’s estate – where the respondent submits there was a will of which he had a copy but the copy was lost – where the respondent submits he was to be the sole beneficiary of the deceased’s estate if he outlived his mother – where the deceased’s unit in which the respondent submits the will was kept was in a disorganised state following the deceased’s death – where the will has not been located – whether there is satisfactory proof of the due execution and contents of the will – whether the presumption that a will last seen in the testator’s custody and missing on their death was destroyed animo revocandi is rebutted – whether the deceased died intestate
Public Trustee Act 1978 (Qld), s 27(3), s 29(1)(a), s 36(1)
Succession Act 1981 (Qld), s 18(2)
Cahill v Rhodes [2002] NSWSC 561, cited
Demediuk v Demediuk [2019] VSCA 79, cited
Frizzo & Anor v Frizzo & Ors [2011] QSC 107, cited
Harris v Knight (1890) 15 PD 170, cited Larussa v Carr [2018] WASCA 127, cited Masih v Masih [2021] QSC 207, cited
McCauley v McCauley (1910) 10 CLR 434, applied Mercieca v State Trustees Limited [2001] VSC 69, cited Public Trustee (WA) v Suwalska [2004] WASC 226, cited Re Hartung [2021] NTSC 51, cited
Re Holmes [1936] St R Qd 30, not followed
Re Kelly [2014] QSC 283, cited
Re Middleton (deceased) [2019] QSC 128, cited Welch v Phillips (1836) 1 Moo PCC 299, applied Whiteley v Clune (No 2) The Estate of Brett Whiteley
(Unreported, Supreme Court of New South Wales, 13 May 1993), cited
Woodward v Goulstone (1886) 11 App Cas 469, applied	
COUNSEL:	J Meredith for the applicant
The respondent appeared on his own behalf	

SOLICITORS:	Official Solicitor to the Public Trustee of Queensland for the applicant
The respondent appeared on his own behalf	

The Public Trustee of Queensland applies for an order under s 29(1)(a) of the Public Trustee Act 1978 (Qld) (“PTA”) to administer the estate of Kevin John Middleton, deceased on intestacy. The deceased died at Royal Brisbane and Women’s Hospital, Herston on 22 December 2016 leaving an estate. At present, the applicant administers the estate of the deceased under s 36(1) of the PTA.

The questions for decision are whether the deceased left a will and whether the respondent is a person who would be entitled to a grant of administration of the will. If those questions are not answered “yes”, on the evidence otherwise the orders applied for should be made.

The deceased died having never married and without children. He was in a long-term de facto relationship with the respondent’s mother, Shirley, who predeceased him. Shirley had four children including the respondent and his brother, Gary. The deceased was not survived by a spouse, issue or parents. On intestacy, his cousins are the next of kin entitled to take an interest in the residuary estate.1
On 15 October 2018, the respondent applied for letters of administration of the estate of the deceased on intestacy, it appears without understanding that if there was a will in his favour it should be propounded by him. The respondent is not a person entitled to take an interest in the deceased’s residuary estate on intestacy, or to a grant of administration on intestacy. Accordingly, the respondent’s application for letters of administration did not proceed.

On 5 June 2018, Gary lodged a caveat against a grant of probate or administration in relation to the estate of the deceased.

On 27 February 2020, Gary lodged a notice of withdrawal of the caveat.

On 24 September 2021, when the applicant’s application for a grant of administration on intestacy came on for hearing, the respondent appeared in person and sought to

1	Succession Act 1981 (Qld), s 35, sch 2 pt 2 item 3 and s 37.

advance that there was a will of which he had previously had a copy but which he had lost.

The affidavit material includes documents which suggested that there was or may have been a will.

First, there is a copy of an undated letter from Gary to the respondent that bears a notation that it was received in approximately March 2018 that states that Gary was at the deceased’s bedside when he died and continues:
“As you may imagine Kevin’s unit was not in a good state. However after checking all of his papers I found documents which identify you as a beneficiary of his estate.
I guess that you would prefer to not have contact with me or members of our family. I do not wish to disrupt your life but I believe that it would be to your benefit to contact me to discuss the estate…
We will need to have a decision soon as I will need to advise the appropriate agencies regarding Kevin’s estate.”

Second, there is a copy of another letter written by Gary to the respondent noted as received on 7 June 2018 that states:
“I was not able to locate Kevin’s will nor have I located any reference to executors of his estate…
However despite my reservations as I stated in my previous letter I remain prepared to write a statutory declaration which supports the case that Kevin had nominated you as a beneficiary of his estate if Mum pre-deceased him…”

There is distrust between the respondent and his brother. The respondent suggests that explains the following letter from Gary’s lawyers to the applicant dated 20 August 2021 that says:
“Put simply, and so there is no misunderstanding, our client has never been in possession of a testamentary instrument such as a will identifying Paul (or anyone else for that matter) as a beneficiary of the deceased estate.”

That letter explains Gary’s letter noted as received in March 2018 to the respondent as:
“…a desperate attempt by our client to get Paul to the table and meet with him because at that stage Paul was homeless, living on the street or at the Salvation Army refuge. In hindsight, our client accepts that

he should not have sent the letter and misrepresented that there were documents suggesting Paul was a beneficiary of the deceased’s estate.”

Third, in 2002, Shirley wrote to the respondent stating, inter alia:

“Of course now [the deceased] thinks he is a sick man, made his will leaving all to me. If he keeps off the cigarettes he will outlive me.”

Fourth, the respondent was given leave to rely on his affidavit from the file of his application for a grant of administration that exhibited a letter written by the respondent that referred to a will made by the deceased and where it was kept by the deceased, namely in his black and silver briefcase. The letter continued that after the death of the deceased the respondent visited his unit at Nundah that showed signs of being looted or vandalised and that the briefcase was missing.

Fifth, Margaret Drury has known the respondent for over twenty years. He resided on her property and worked as a caretaker. Many times he said to her he would be inheriting a unit when his mother and stepfather both died.

Sixth, Craig John Davis has been a friend of the respondent since they were 15 years old. They met again about fourteen years ago when both were living in Kingaroy. About ten years ago at the deceased’s unit in Hendra, the deceased said to the respondent that he would be looked after in the future as he would have the deceased’s unit when the deceased died. The deceased took a document from a briefcase and placed it in front of the respondent and Mr Davis on a table that appeared to be a typewritten will with handwritten words on it and a signature at the end. Mr Davis does not recall anything more about the document but believes it was an original document. After the deceased’s death, the respondent showed Mr Davis a photocopy of a document that appeared to be a signed will, but Mr Davis does not recall anything more about its contents. He recalls the respondent’s van was destroyed in a fire at Kingaroy and the respondent lost a lot of belongings and papers.

Seventh, Edward John Astell met the respondent about ten years ago when he was living in the van on a property neighbouring his home. About three to four years ago the respondent showed him a document which had the word “Will” on it and said to Mr Astell words to the effect that the will left him a unit in Brisbane. However, Mr Astell does not recall whose will it was or if it was an original or a copy of a document.

The applicant has advertised and has been unable to locate a will or copy of a will of the deceased.

Having regard to that evidence and having explained to the respondent that if there is or has been a will of the deceased that was not forthcoming it was necessary for him to prove its existence, execution and contents by affidavit, the Court adjourned the proceeding to a later date to enable the respondent to file any further affidavit material.

On 1 October 2021, the respondent made a statutory declaration as follows:

“…I was notified by Kevin John Middleton and Shirley Joyce Conomos…in the year 2003 during Easter holiday [weekend], that I, Paul Conomos, was to be the sole beneficiary of Kevin’s estate, if I was to outlive my mother, Shirley Joyce Conomos. It was on this occasion that Kevin showed me his original will and I was given a copy to keep. The original copy of Kevin’s will was kept securely in the wardrobe in the master bedroom, along with deeds, [insurance documents] and valuables. All documents and valuables have been removed from (unit 1 26 Kreutzer St) by a Gary Conomos…the copy of the original that was in my possession was destroyed in a fire at my lodgings with most of my belongings. The Kingaroy fire brigade and police attended the scene.”

The respondent is unrepresented and there is some suggestion that he has an acquired brain injury that may affect his cognitive functioning. Nevertheless, the evidence is what it is and the respondent has not brought an application to prove the will that is not forthcoming. If he were to do so, there would be a difficult onus of proof for him to meet.

In Welch v Phillips,2 Lord Wensleydale said:

“The rule of the law of evidence on this subject, as established by a course of decisions in the Ecclesiastical Court, is this: that if a will, traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and that presumption must have effect, unless there is sufficient evidence to repel it.”

The presumptive rule  was accepted in this  country in McCauley v McCauley.3
Griffith CJ said of the presumption as follows:

2	(1836) 1 Moo PCC 299, 302.
3	(1910) 10 CLR 434. See also Demediuk v Demediuk [2019] VSCA 79 and Larussa v Carr [2018] WASCA 127.

“That rule has often been applied and has never been departed from or varied. The probability that a will not forthcoming has been destroyed animo revocandi and not lost obviously depends upon circumstances. One important element to be considered is the nature of the custody in which it is kept. All the facts of the case must be considered, and amongst them the nature of the provisions of the will itself is very material.”4
The same approach has been followed in relatively recent times in this Court.5

However, even if the presumption as to destruction is overcome by the circumstances of the case, in the present case possibly because of the condition of the deceased’s unit following his death, that is not enough. At common law, before a grant of probate of the will could be made, there must be satisfactory proof of the due execution of and the contents of the will that is not forthcoming. For example, in Woodward v Goulstone,6 Lord Herschell LC said:
“I think, therefore, that in order to support a will propounded, when it is proved by parol evidence only, that evidence ought to be of extreme cogency, and such as to satisfy one beyond all reasonable doubt that there is really before one substantially the testamentary intentions of the testator.”7
Proof of the due execution of a will is now subject to the operation of s 18 of the
Succession Act 1981 (Qld)8 as follows:

“18	Court may dispense with execution requirements for will, alteration or revocation
This section applies to a document, or a part of a document, that—
purports to state the testamentary intentions of a deceased person; and
has not been executed under this part.
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.

4	(1910) 10 CLR 434, 438.
5	Re Kelly [2014] QSC 283, [20]; Re Middleton (deceased) [2019] QSC 128, [21]. More generally, see
Frizzo & Anor v Frizzo & Ors [2011] QSC 107, [161] and Masih v Masih [2021] QSC 207.
6	(1886) 11 App Cas 469.
7	(1886) 11 App Cas 469, 475.
8	Cahill v Rhodes [2002] NSWSC 561, [55]; Masih v Masih [2021] QSC 207, [5].

In making a decision under subsection (2), the court may, in addition to the document or part, have regard to—
any evidence relating to the way in which the document or part was executed; and
any evidence of the person’s testamentary intentions, including evidence of statements made by the person.
Subsection (3) does not limit the matters a court may have regard to in making a decision under subsection (2).
This section applies to a document, or a part of a document, whether the document came into existence within or outside the State.”

Further, with all respect, I also do not consider that satisfaction beyond reasonable doubt is the relevant standard of proof.9 It is proof on the balance of probabilities that is the standard of proof in civil proceedings.10
Nevertheless, the point remains that proof of the execution and contents of the will are critical to a grant of probate in respect of a will that is not forthcoming. One example is Harris v Knight.11 In that case, a document purporting to be a will bearing the name of the testator at the end and the names of the execution witnesses existed at the time of the testator’s death and it was placed on his coffin and handed to and read by the heir-at-law. Many years later he challenged its validity when the original will was not forthcoming and both the attesting witnesses were dead but the evidence of due execution and the contents was held to be sufficient.

In the present case, there is some evidence that the document thought to be the deceased’s will was executed by the deceased and as to its actual contents.

The highest point to which the evidence as to the possible will’s execution goes is that Mr Davis recalls that approximately 10 years ago a document that appeared to be a typed will with handwritten words and a signature at the end was produced by the deceased and that the deceased produced that document on the occasion when he said that the respondent would be looked after in the future as he would have the deceased’s unit when the deceased died. That is consistent with the respondent’s statements that in 2003 the deceased declared his intention to make the respondent

9	Pace Re Holmes [1936] St R Qd 30.
10	Cahill v Rhodes [2002] NSWSC 561, [58]; Masih v Masih [2021] QSC 207, [55].
11	(1890) 15 PD 170.

his sole beneficiary and that he showed the original of a will to the respondent and gave him a copy that he kept in his van and Mr Astell’s evidence that he saw a copy of a document headed “Will” in the respondent’s van.

In my view, that evidence supports the inference that the deceased intended the document to be his will or part of his will under s 18(2).

The highest point to which the evidence about the possible will’s contents goes are the statements by the deceased, on the occasion in 2003 when he showed the original will to the respondent, that it was his intention or belief that the respondent was to be his sole beneficiary and, on the occasion approximately 10 years ago when he produced the document to the respondent and Mr Davis, that it was the deceased’s intention or belief that the respondent was to have the unit. There is nothing more about its actual contents. However, the statement that the respondent was to be the sole beneficiary is evidence of a will that made a single disposition to the respondent after his mother’s death of the whole of the deceased’s estate and the statement that the respondent was to have the deceased’s unit is consistent with that.

In the circumstances, in my view, the evidence is enough to discharge the onus on the respondent as to the contents of the will.

The respondent having overcome those hurdles, the question remains whether the evidence overcomes the presumption that the absence of the will is explained by its intentional destruction by the deceased. An important consideration is whether the deceased evidenced any change in affection towards the intended beneficiary before his death. Among other factors, that consideration has led the Court to conclude that the presumption as to intentional destruction is rebutted in a number of cases, including McCauley v McCauley itself.12
In that regard, Gary’s statements that he had been with the deceased at his bedside when he died and that Gary would write a statutory declaration which supported the case that the deceased had nominated the respondent as a beneficiary of his estate if

12 McCauley v McCauley (1910) 10 CLR 434, 441; Whiteley v Clune (No 2) The Estate of Brett Whiteley (Unreported, Supreme Court of New South Wales, 13 May 1993); Mercieca v State Trustees Limited [2001] VSC 69, [23]-[29]; Public Trustee (WA) v Suwalska [2004] WASC 226; Re Hartung [2021] NTSC 51, [15]-[16], [19].

Shirley predeceased him support the inference that the deceased had not evinced a change of affection to the respondent prior to his death.

The contents of the will itself are a relevant factor. There is only the evidence previously mentioned.

The conditions under which the will was kept are also relevant. The will was kept in the briefcase in the deceased’s unit. That, coupled with Gary’s statement that the deceased’s unit was not in a good state after his death and the respondent’s statement that it showed signs of being looted or vandalised, support the possible inference that the original will went missing in circumstances other than intentional destruction by the deceased.

Overall, in my view, the evidence is enough to support the inference that the will was not destroyed by the deceased with the intention to revoke it.

It follows that the application for an order that the applicant administer the estate of the deceased on intestacy must be refused.

Instead, there should be a declaration of the effect of the will written and executed by the deceased in or about 2003 and a grant of letters of administration of the will as I will declare it in substance to be, the original of the said will not being found.

Because the respondent seems to lack the skills necessary to do so and because the applicant has been administering the estate of the deceased until now, in my view, the applicant is the appropriate person to appoint as administrator, subject to it giving consent to do so.