Carroll, Re [2026] QSC 121

1-1 QUEENSLAND COURTS AND TRIBUNALS TRANSCRIPT OF PROCEEDINGS © The State of Queensland (Department of Justice). Apart from any use permitted under the Copyright Act 1968 (Cth), all other rights are reserved. Copyright is not infringed by the reproduction of this transcript for the purposes of a judicial proceeding or a report thereof, pursuant to section 43(1) of the Copyright Act 1968 (Cth). A copy of this transcript may also be provided to a legal practitioner for the purpose of obtaining professional advice, pursuant to section 43(2) of the Copyright Act 1968 (Cth). For all other uses, you must not copy, modify or distribute this material without the written authority of the Director, Recording and Transcription Services, Courts and Tribunals. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION TRESTON J No 2618 of 2026 RE: JUDITH VAN CARROLL BRISBANE 4.50 PM, WEDNESDAY, 27 MAY 2026 DAY 1 JUDGMENT Any rulings in this transcript may be extracted and revised by the presiding Judge. WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. -- 1 of 4 -- 27052026/BSD15/Treston J __________________________________________________________________________________ 1-2 JUDGMENT HER HONOUR: The last matter to be dealt with is in the matter of the will of the late Judith Van Carroll. This is a matter in which an application was filed in this court on the 14th of May 2026 where the applicant sought that the application be determined on the papers without the need for an appearance. The application 5 sought an order pursuant to s 18 of the Succession Act 1981 (Qld) (the Act) that a copy of the will of the late Judith Van Carroll dated 9 January 2008 is declared to be the last will and seeking an order that the court direct the Registrar of Probate to make a grant of probate of the copy of the will. 10 I brought the matter on for mention in court before me when the application came to me to be dealt with on the papers. I asked for an appearance of the solicitor on behalf of the applicant. I advised the solicitor for the applicant that this was not an application pursuant to s 18 of the Act; because that was an inapplicable provision of the Act. I directed the solicitor to the necessary material to be filed in respect of a 15 copy will application; although, I was cautious not to give advice as to the breadth of the evidence which needed to be available to the court. Indeed, when the solicitor for the applicant asked for some advice in relation to what was required to be in the affidavit, I suggested that he would be better directing his inquiry to an experienced junior counsel in the area. 20 The written submissions which were filed on the 14th of May 2026 were also directed to the statutory basis for an order under s 18 of the Succession Act, which, as I say, was directed to the completely incorrect question in relation to a grant which was actually a grant for a copy of the will. 25 The material identifies that the applicant, David Carroll, is the sole executor of the named will of Judith Van Carroll. It is contended that the original will has not been able to be located despite diligent searches for it. 30 The evidence which is available before me seems to be as follows. The deceased died at Helensvale on 8 November 2025, leaving an estate in Queensland. The deceased was married to Robert George Carroll, but he predeceased his wife, Judith; he having died on 14 December 2010. According to the applicant for the grant of the copy of the will, the solicitor has made inquiries of the deceased’s former solicitors 35 to locate the original will but has been unable to locate it. I will return to the necessary evidence in a moment, but the five matters of which the court must be satisfied in order for the court to grant probate of a lost will is, first, that there was actually a will. Second, that the will revoked all previous wills. 40 Third, that the presumption that when a will is not produced it has been destroyed has been overcome. Fourth, there must be evidence of the will’s terms. And fifth, there must be evidence of the will’s execution. As is often the case in matters of this kind, it is easy to satisfy myself as to the first, second, fourth and fifth matters. A copy of the will of Judith Carroll dated 9 January 2028 is in evidence before me. On 45 the face of that will, it revoked all previous wills. The terms of the will are obviously set out in the document, and it is -- 2 of 4 -- 27052026/BSD15/Treston J __________________________________________________________________________________ 1-3 JUDGMENT plain on the face of the document that the will was executed in the presence of two witnesses and signed by the deceased. The real issue is whether there is any evidence to demonstrate that the applicant can overcome the third matter, being that matter which I brought to the attention of the 5 solicitor for the applicant at the last return date, being that the presumption that in the absence of the original will being produced to the court, the deceased destroyed the original will with the intention of revoking it. Having brought the issue of the presumption of destruction to the attention of the solicitor for the applicant, the solicitor then provided a supplementary affidavit, noting that “none of the material 10 currently before the court addresses the presumption of rebuttal.” That, of course, is not what I drew to the solicitor’s attention. I drew the solicitor’s attention to the presumption of destruction, not the presumption of rebuttal. Nevertheless, that affidavit demonstrates that on the 19th of November 2025, the 15 solicitor wrote to a firm of solicitors who were the authors of the copy of the will, asking them to check their securities and advise if they were able to locate the original will and send, if it were able to be located, it to the solicitors as soon as possible. 20 The solicitors responded on 10 December 2025, noting that they no longer hold any safe custody documents for the late Judith Van Carroll. Rather, the documents were released on the 18th of May 2012 to GMS Legal and Conveyancing at the deceased’s request. The documents released included the will of 9 January 2008, a power of attorney of the same date, and a form of enduring guardianship, also of the same 25 date. The solicitors for the applicant then wrote to GMS Legal and Conveyancing and asked them to check their securities and advise if they able to locate the original will and to send it to the solicitors for the applicant. GMS solicitors responded by email 30 of 9 January 2026 asking for some identification and other matters to be attended to and then advising that they would forward the documents held by them in safe custody on behalf of Judith to the solicitors for the applicant. The matters of identification and other issues were otherwise attended to, at which 35 time GMS Legal and Conveyancing wrote to the solicitors for the applicant and said, “Our computer system shows that a Will, Power of Attorney and Enduring Guardian were placed in our Safe Custody on Judith’s behalf on 17 May 2012 and that they are still currently held. 40 When we attempted to retrieve the Packet from safe custody, we were unable to locate it although a thorough search was conducted without success. We have checked our records and cannot find when the documents were 45 released to Judith. We are of the opinion that the documents were handed to Judith when she sold her property at Mannering Park and before she moved the [sic] Queensland. -- 3 of 4 -- 27052026/BSD15/Treston J __________________________________________________________________________________ 1-4 JUDGMENT We suggest that you contact solicitors closer to where Judith resided before her death.” The applicant himself deposes to the fact that he and his sisters have undertaken searches but the original will has not been able to be located. 5 That seems to me to be the current state of the only evidence that was offered in respect of rebutting the presumption of destruction. Whilst I accept that the evidence demonstrates that the original Will was held in safe 10 custody and can now no longer be located, the evidence does not go to any of the usual matters which would be in evidence in a case such as this such as conversations with the deceased, amongst family members as to whether she had a will, what the terms of the will were, whether she had ever spoken to anyone about the intention to destroy the will or revoke it, whether she had ever discussed an intention to make a 15 new will or any of the evidence that would ordinarily be produced in circumstances where the presumption of destruction was sought to be rebutted. Notwithstanding the opportunity to provide further evidence to rebut the presumption, the evidence was not produced. As such the evidence offered fails to 20 satisfy me in any respect that the presumption has been rebutted. In the circumstances, the current application is dismissed and a copy of these reasons ought to be made available to the solicitor for the applicant so the proper attention can be given to the necessary material which the court requires in order to make an 25 order such as that sought on the papers or at all. The application can re-listed once proper evidence has been adduced. ______________________ 30 -- 4 of 4 --