Reconstructed Wills & Probate..not

Johannes Hermans died in August 1992. Johannes widow Anne sought orders that the Will of her husband be reconstructed and admitted to probate for a Grant of Letters of Administration with the Will annexed.

Yesterday we stated the five matters that must be established when probate of a lost Will is sought:

  • it must be established that there actually was a will,
  • it must be shown that that will revoked all previous wills,
  • that the presumption that when a will is not produced it has been destroyed must be overcome,
  • there must be evidence of its terms, and
  • evidence of due execution.

Anne gave evidence she clearly recalled that she and Johannes instructed a solicitor to prepare wills and attended his office for the purpose of signing the wills; that Johannes  told his son more than once that under the provisions of the Will everything would go to Anne.

Anne claimed that Johannes repeated this to his nephew and business associate and said that the  Will was with his solicitor; however the solicitor did not have any recollection of a will. It was further plead that Johannes told his solicitor that he had left everything to Anne, but after searching his records the solicitor could not find any file or notes concerning a will.

The Court held that evidence Anne plead in support of her case contained statements that were hearsay (a witness can only tell the court what she saw or heard, not what someone else told the witness had occurred)- made by the solicitor alleged to have made the Will, her solicitors and friends. The Court was not satisfied that the evidence plead met the requisite level of clear and convincing proof that a will was made by Johannes let alone whether any will he signed was validly executed.

Anne’s evidence of her recollections of signing the will make it more probable than not that there actually was a will, however the solicitor she claimed made the Will had no recollection of a Will being made. Further the evidence did not show clearly and to the requisite standard that if a will was made it revoked all previous wills and was duly executed.

The Court considered that the evidence provided did not overcome the presumption that when a will is not produced it has been destroyed. Similarly the issue that Anne is the sole beneficiary of the will is based upon the recollection of conversations that she had with the solicitor; and hearsay evidence of Johannes’ son and nephew. In the absence of evidence from the solicitor and in the presence of so much hearsay evidence, Anne did not have a convincing case.

As Anne was Johannes’ widow she would inherit the estate through intestacy rules. However it is an important example for making sure that you plan for your future. Investigate your requirements for income protection insurance, that your superannuation will be sufficient for your retirement, importantly you need to discuss your wishes and create Advance Care Directives, & Powers of Attorney in the event that you lack the capacity to manage your own affairs. It is always a good time to create a Will, as the death of a loved one is difficult enough without the further complications of intestacy.

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