James Henderson died in May 1993, aged 53. He had never married and had no children, and both his parents and five of his brothers and sisters survived him. The principal asset of his estate was the farm property James lived on but otherwise the estate was a simple one. Following his death his home was searched but no will was located. Solicitors made extensive inquiries, but nothing came to light.
James father Roy applied for grant of probate of the reconstructed will of James Henderson. There was no opposition to the grant and the facts are fairly clear and simple.
Courts have held that five matters must be established before granting probate of a lost will:
First, it must be established that there actually was a will,
secondly, it must be shown that that will revoked all previous wills,
thirdly, that the presumption that when a will is not produced it has been destroyed must be overcome,
fourthly, there must be evidence of its terms, and
fifthly, evidence of due execution.
James served in the Australian Army from 1959 until his discharge in 1965. It is usual Army practice that personnel complete a will on a prescribed form and that document is kept in safe custody by the Army throughout their period of service.
Upon his discharged the Army forwarded several documents to his home in Samsonvale including his Will.
Subsequently the property was sold to his nephew Steven. When Steven and his mother in law Christine cleaned out a storeroom at the property they noticed two cardboard apple boxes containing bric a brac and a document they concluded was a will made by James. Steven and Christine have been shown a copy of a blank Army will form and identified that as being the basic form of the document which they saw in the apple boxes.
Steven and Christine gave evidence that they saw James’ name inserted at the top of the form after the words, “This is the last Will of me”. Steven could not recall if the document appointed an executor, but Christine believes that the name Roy Joseph Henderson was inserted there.
Both gave evidence that after the words, “I give”, there were inserted the words, “All my possessions to my father, Roy Joseph Henderson”. Steven gave evidence that he was familiar with James handwriting; and to the best of his recollection the signature was identical to his uncles.
Christine and Steven gave evidence that there were some signatures at the bottom of the form where there is provision for the attestation clause.
The Court conceded that this was an unusual instance of probate being sought of a lost will; on the balance of probability the will provided that the whole of his estate should go to his father; that the will was duly attested, and, James did not destroy the will he made whilst in the Army with an intention of revoking it.
The Court granted probate of the reconstructed will until the original will or a more authenticated copy is proved in the registry of the Court.