Court decision

Now where did I put that Will?

By Rebecca Edwards / 21 July 2022
3 min.
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Worthwhile read for: Individuals, Families, Couples, Parents, Children of aging parents

Occasionally, we see situations arise where the original Will of a deceased person is lost and only a copy can be found. In order to obtain a grant of probate of the Will, in ordinary circumstances, the Court requires that the original Will be filed as part of the probate application.

In the recent decision of In the Will of Nina Elizabeth Mary Greer [2022] QSC 136, handed down on 5 July 2022, Supreme Court Justice Bradley allowed a copy of a Will to be admitted for probate. The full decision of the Court can be found here.

In reaching the decision, Bradley J gave consideration to the five matters identified by Campbell J in Cahill v Rhodes [2002] NSWSC 561 at [55], which should be established to admit a copy of a Will to probate. 

The first four of these matters were established as follows: 

  1. there was a Will, being the Will from which the copy exhibited in the application was made;
  2. that the Will revoked all previous Wills, as first clause of the copy of the Will indicates;
  3. that the entire document is available in copy form;
  4. that the Will was duly executed, in that the copy of the Will includes the signature of the deceased, in the presence of two witnesses, who signed in each other’s presence. 

In satisfying the first four points, Bradley J turned to the question of whether the presumption of destruction is overcome. This was described by Peter Lyons J In the Will of Warren [2014] QSC 101 at [11] as being, “… the presumption that, if a Will last traced to the possession of the deceased testator cannot be found, that the Will was destroyed by the testator with the intention of revoking it.”

In the Will of Nina Elizabeth Mary Greer, the evidence before the Court did not trace possession of the original Will to the deceased. Rather, it traced the possession of the original Will to the deceased’s former solicitor. The Will was executed in the presence of the solicitor. The deceased informed her children that she had retained only a copy of the Will. The court was satisfied in any event that it is more likely than not that the original Will was held by the solicitor and was lost in the process of that firm ceasing business rather than at the hands of the deceased.

Points to consider

In light of this decision, it is worthwhile to consider:

  1. do you have a Will?  
  2. if you have a Will:
  • do you know where it is? 
  • do you know what it says? Does it reflect your wishes?
  • does anyone else know where it is? 

If you would like assistance with your estate planning or if you are the executor or a beneficiary in a Will and would like to discuss this further, please contact our Estates and Succession team.
 

Authors
Rebecca Edwards
Senior Associate
Rebecca Edwards is a Senior Associate in our Private Enterprise team. 

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