Lost or Destroyed Will? – Let the Court decide

Daniel John Cahill, a soldier in the Australian Army, died in a motorbike accident in on April 2001, aged 24 years. In August 1997, he had made a Will leaving his whole estate to Lee-Anne Rhodes who at that time he was intending to marry. This relationship broke down around 1999.

Daniel’s mother, Robyn argued that Daniel executed a Will in August 1999, which made her the sole beneficiary of the estate, but that that Will has been lost. Robyn went to court seeking probate of this lost Will, or alternatively a grant of administration of the estate of the Deceased if he had died intestate. Lee-Anne sought probate of the Will made in August 1997.

The question for decision in this case is whether the 1997 Will was ever replaced by another Will, and, if so, whether that replacement Will was unrevoked until Daniel’s death.

The following must be established when seeking probate of a lost Will:

  1. there actually was a Will
  2. the document revoked all previous Wills,
  3. the presumption that when a Will is not produced it has been destroyed must be overcome
  4. evidence of its terms, and
  5. evidence of proper execution or that the deceased intended the document to constitute their Will.

The Court held that Daniel made a new Will in about August 1999. The Court accepted the oral testimony of several witnesses and it was consistent with the probabilities that when he was deployed overseas in the year 2000 his relationship had broken down and as it was a requirement of the Army that soldiers being deployed overseas have an up-to-date Will he would have had a new will made.

The Court was satisfied that the Will created in 1999 contained a revocation of prior Will and that adequate searches were made for the Daniels’s 1999 Will, and that it has not been found.

However the Court was not satisfied that the presumption that the 1999 Will had been destroyed by the testator with the intention of revoking it has been rebutted. The evidence submitted to the court showed that Daniel was the only person with access to the Will and had by the time of his death resumed, to a significant though not complete extent, his relationship with Lee Anne which casts serious doubt on whether he would have seen the Will which he made immediately before being deployed overseas still being appropriate.

As the Court was not satisfied that the presumption of revocation by destruction has been rebutted, it was not necessary for it to consider what might have been the precise terms of the Will.

As Daniel had revoked his 1997 Will and the presumption that the lost 1999 will was revoked by destruction was not rebutted The Court found that Daniel died intestate, and granted Robyn administration of the intestate estate.

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