Frances Ponikvar died in South Australia in June 2010 aged 86 years. She had never married and had no children. Her estate was valued at $436,870.
Frances had seven brothers and sisters, all of whom predeceased her, and 12 nieces and nephews who survived her. Of those 12 nieces and nephews, four of them were Australian residents.
The deceased had made two wills in May 1993 (“the 1993 will”) that was held by the Public Trustee and February 2007 (“the 2007 will”).
The original of the 2007 will could not be found. However the deceased’s solicitor who drafted and witnessed its execution by Frances had a copy of that will. It was Frances solicitor’s usual practice to give her clients the original will, together with a letter, advising that a will is an important document and should be kept in a safe and secure place and suggested telling a person the client trusted of its whereabouts.
A series of searches of Frances’ home have not discovered the original 2007 will. Similarly there have been no responses following the publishing of notices in the local metropolitan newspaper and the Law Society journal seeking it’s whereabouts.
The 2007 will revokes the 1993 will and was made following the death of the executor of the 1993 will, Frances niece Sandra Novak, was a beneficiary under the 1993 Will but was left out of the 2007 Will and opposes the application.
The issue that the court must determine is whether the presumption of revocation has been rebutted.
Where a the court is asked to grant probate on a missing Will it must take into consideration
- that the original will existed;
- that the original will was duly executed; or, if the original will does not fulfill the formalities required by legislation, that it satisfies the legislative requirements allowing it, as an informal will, to be admitted to probate;
- that there is evidence of the terms of the original will;
- that the copy will is an accurate and complete copy of the original will;
- that thorough searches have been conducted to find the original will, including publishing advertisements regarding the missing original will;
- that the original will revoked all pre-existing wills;
- the circumstances surrounding the absence of the original will;
- that all persons prejudiced by the application, if it is granted, have the capacity to consent to the application; and that the presumption of revocation does not arise or has been rebutted.
The Court formed the view that there were three possibilities: that Frances destroyed her will; lost her will; or had concealed her will in a place that has not been located.
The Court was satisfied that if the deceased had deliberately destroyed the will it would have been only natural for her to have told a close friend or relative. All of the evidence suggested that Frances did not tell anyone that she had changed her testamentary intentions or had realised the will did not accurately reflect those intentions, and that as a result she had destroyed the will. Although the original of the 2007 will cannot be found, it is more likely than not that the reason for it being missing is something other than that the deceased destroyed it with the intention of revoking it and granted probate of the 2007 Will.