Dead men tell no tales – well in some instances they might.

Amy Dunn died in January 1938. Her daughter (also named Amy) applied for letters of administration with a copy of the will annexed, she has recently become senile and on her behalf her tutor sought a declaration in order that the matter can be referred to the Registrar to complete the application for administration of the estate.

In November 1937, Amy Dunn was ill and she asked her solicitor to attend the house to make a will for her. As the solicitor and two witnesses emerged from Amy’s bedroom after completing the document the solicitor said

“When you go out into the world even if you only have three pence make a will. Don’t leave it until you are on your death bed like this lady here.”

A week after Amy’s death the family went into the solicitor’s office and he read the will. However the will was not probated due to the cost of doing so.

The daughter remembers that the will named William Gibbs the executor, she with her sister Mary were to receive the proceeds of a life assurance policy with the AMP Society, that her sister or her sister’s daughter was left the cow and a calf and the house was left equally between the three brothers, Bertland, Ferdinand and Frederick.

The plaintiff remembers the details of the Will. The AMP Society paid out on Amy’s life policy and would have done so only after sighting the original will or a certified copy.

After her death Amy’s real estate was occupied by her three sons who considered themselves to hold the property as joint tenants. The Court considered this to be significant because as all the members of the family were present when the will was read, knowing that other members of the family could contradict their assertion and no member of the family ever did.

Similarly affidavits by people now dead notwithstanding that it is common practice that a party may require the attendance for cross-examination of a person making an affidavit, the court believed that affidavits which have been properly sworn and filed in proceedings and which deals with admissible and relevant material may be used at the hearing, even though the deponent is dead or senile.

Five matters must be established when it is sought to have probate of a lost will.

  • First, that there actually was a will,
  • secondly, 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.

The Court considered the evidence and made orders declaring the document to be a copy of a lost will.



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