The case of Re Sleeman (dec’d) [2024] QSC 274 offers insight into the complexities of probate when an original Will cannot be located. The case involved an application by the deceased’s brother, Paul Joseph Sleeman, for a grant of letters of administration with a copy of a 2007 Will annexed.

Key Takeaways

In this case the Court considered whether a scanned copy of a 2007 Will could be admitted to probate and considered evidence to ascertain if that Will had been destroyed or revoked.

The Re Sleeman case illustrates the complexities of probate and the importance of thorough legal preparation. From proving the validity of a Will copy to rebutting presumptions of revocation, each step requires careful attention to detail.

If you are an executor facing challenges with probate, seeking advice from an experienced Wills and Estates lawyer can provide clarity, streamline the process, and ensure the estate is administered according to the deceased’s wishes.

Background

Brian Peter Sleeman (Mr Sleeman), passed away in May 2024, at the age of 71. He never married, had no children and lived alone in rental accommodation. His Will, drafted by a solicitor, left his estate to his brother Michael Sleeman and, in default, to his sisters, Patricia O’Neil and Edwina Collette, or their children.

The Will named Michael as executor, with Patricia and Edwina as alternate executors. However, all three renounced their roles. As none of the executors named were willing to act as executor, in accordance with legislative requirements, Paul was the next in line to apply for a grant of letters of administration with a copy of the Will annexed and be appointed as the administrator of the estate.

A grant of letters of administration with the Will is similar to probate, however it is applied if a valid Will was written and someone other than an executor named in the Will is applying. The authorised person is referred to as an administrator, as opposed to an executor.

The Law

To grant letters of administration with a copy of the Will annexed, the Court applied the principles established in Frizzo v Frizzo [2011] QSC 107 and Cahill v Rhodes [2002] NSWSC 561. These principles require five factors to be proven:

1. There was a valid Will
2. The Will revoked all previous Wills
3. The presumption of revocation was rebutted
4. The terms of the Will are known
5. The Will was duly executed or intended to constitute the deceased’s Will.

Evidence

The case highlights several probate/letters of administration complexities:

1. Missing Will
   While a scanned copy of the Will was available, the original could not be found. Investigations revealed that the solicitor who drafted the Will had returned the original to Mr Sleeman and did not hold it in safe custody
2. State of Mr Sleeman’s home
   After Mr Sleeman’s passing, Paul described his rental accommodation as being in a "deplorable state," with rubbish, clothing, and paperwork scattered everywhere. This disarray suggested the Will may have been unintentionally lost rather than destroyed
3. Evidence of intent
   A friend of Mr Sleeman confirmed that he had referred to making a Will with "the solicitor down the road," likely referring to the solicitor who prepared the Will. This supported the inference that Mr Sleeman intended the 2007 Will to remain operative.

Outcome

In this case, the Court determined:

• Factors 1, 2, 4, and 5 were clearly satisfied
• The presumption that Mr Sleeman had destroyed the Will with the intention of revoking it (Factor 3) was rebutted, given Mr Sleeman’s living conditions and the lack of evidence of any new Will.

The Court concluded that the Will was most likely lost, not revoked and a grant of letters of administration with a copy of the Will was issued to Paul.

What is probate, and why is it necessary?

Probate is a legal process in which a Court formally recognises a deceased person’s Will as their last valid Will and confirms the authority of the executor(s) to administer the estate. This process ensures that:

• The Will admitted to probate is the deceased’s valid last Will
• The executor(s) are the appropriate people to manage the estate.

The necessity of obtaining a grant of probate depends on the deceased’s assets. For example:

• Banks may require a grant if the deceased’s account balance exceeds their threshold
• Nursing homes often require probate to refund refundable accommodation deposits
• Probate is usually needed to sell or transfer real property, access superannuation funds (if no beneficiary is nominated), manage shareholdings, or deal with tax matters.

However, as the Re Sleeman case demonstrates, applying for probate is not always straightforward. Various issues can complicate the process.

Common issues in probate applications

Several challenges can arise when applying for probate. Common issues include:

• Problems with the Will:
  • Removed staples, missing pages, or physical damage (e.g., rips or tears)
  • Handwritten changes or undated Wills
  • Improperly executed Wills or informal Wills (e.g., homemade or online versions)
  • The Will is a copy, and the original cannot be found
  • The named executor is unable or unwilling to act, and no substitute executor is named.
• Concerns in the death certificate:
  • Errors in the deceased’s name, address, or place of death
  • Indications that the deceased lacked capacity at the time the Will was made.

If issues arise, additional evidence and affidavits may be required to support the application.

The probate process

If no issues are present, the probate process generally involves:

1. Advertising a notice of intention to apply for probate
2. Preparing and filing an application with supporting affidavits
3. Submitting the original Will and documents to the Supreme Court of Queensland.

In Re Sleeman, however, the process required additional steps to rebut the presumption of revocation and prove the validity of the Will copy.

Types of probate grants

The Court can issue two types of grants:

1. Common form grants: these are processed by the Registry without the need for judicial consideration
2. Solemn form grants: these are issued when the Court must determine the validity of the Will, often due to concerns about the deceased’s capacity or the Will’s authenticity.

Why engage a lawyer?

This case highlights the importance of engaging a lawyer for probate matters. An experienced Wills and Estates lawyer can:

• Address issues like missing Wills, executor renunciations, or questions of intent
• Prepare the required affidavits and evidence to support the application
• Navigate the legal principles and Court requirements, reducing delays and errors.

Costs of probate

In Queensland, probate costs (subject to change) include:

• Outlays:
  • Supreme Court filing fee: $793.00 (or $144.70 for concession holders)
  • Advertisement fee: $161.70 for the Queensland Law Reporter.
• Professional fees:
  • These depend on the complexity of the estate and the application.

While professional fees are an additional expense, they can save an executor’s time and minimise the risk of costly mistakes.