Setting aside grant of probate for mistake of fact or not

Farrell v Boston [2016] QSC 278

Holmes CJ

The application concerned whether a grant of probate obtained by the respondent could be set aside because it was made under a mistake of fact. Relevantly, r 642(1)(a)(ii) of the Uniform Civil Procedure Rules 1999 (Qld) provides:

(1) The court may, on application, revoke a grant or make a limited grant if—

(a) it appears to the court that—

(i) the personal representative is no longer capable of acting in the administration; or

(ii) the personal representative can not be found; or

(iii) the grant was made because of a mistake of fact or law


The deceased prepared a will in 2007 (the “2007 will”) which named the respondent as her executor. The respondent gained probate of the will in 2016. The applicant claimed that the probate should be set aside because regard was not had to a document which the applicant claimed was a will prepared by the deceased in 2013 (the “2013 document”). The applicant submitted that this amounted to a mistake of fact.

Further, the applicant contended that the Court should treat the 2007 will as a forgery because of the failure of the respondent’s solicitors to produce photographic identification of the deceased so as to infer that the person who signed the 2007 will was not the deceased.

Discussing the 2013 document, the Chief Justice held that it was of the type available in newsagents. Of the 2013 document, the Chief Justice went on to state:

[9] … It appoints the applicant as executor and divides the estate amongst four individuals, who are apparently relatives of Duane Farrell and of the applicant. The document itself bears a signature, “Erris Farrell”, in contrast with the 1984 will, 2007 will and 2007 property transfer, all of which are signed “E. Farrell”. The handwriting, however, is broadly similar to that of the person signing the earlier documents, but is considerably shakier. There are two signatures below the attestation, “Walter Smith” and “Julie Collins”. The sections of the form which provide for insertion of the witnesses’ names and addresses are not completed.

Dismissing the application, the Chief Justice held:

[12] The notion of an imposter’s having signed documents in Mrs Farrell’s place does not bear examination. It would require not only that a bogus Mrs Farrell was taken to Steindls’ offices, but that on those occasions when Ms McIntosh visited Mrs Farrell’s home and the nursing home, Mrs Farrell was somehow secreted and the other woman substituted. It seems highly improbable that such an exercise could have taken place, particularly under the noses of nursing home staff. More to the point, there is absolutely no evidence to support the applicant’s extraordinary claim.

Finding that the 2007 will bore similarities with a previous 1984 will of the deceased, the Chief Justice found that the 2013 document was not consistent with the dispositions contained in the previous wills. The Chief Justice went on to conclude:

[15] It is unnecessary to resolve how the 2013 document came into being. It is conceivable that the signature it bears is Mrs Farrell’s.  But given the contemporaneous evidence as to Mrs Farrell’s debility and confusion, Dr McSweeney’s view as to her incapacity, and the complete absence of any contrary evidence, the only available conclusion is that even if the document were signed by Mrs Farrell, she lacked testamentary capacity at the time, and it is not a valid will.

[16] In the absence of any evidence of anything untoward in the making of the 2007 will and the failure to authenticate the 2013 document or establish its validity, there is no basis for inferring any mistake in the grant of probate of the 2007 will…

The application was dismissed, and the respondent’s costs were to be assessed on an indemnity basis.

David Cormack – Brisbane Barrister & Mediator

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