Admission of a Copy of a Lost Will to Probate

Jennifer Hartung sought to have a copy of a document said to be the Will of Horst Paul Hartung (the deceased) admitted to probate under s 10(2) of the Wills Act 2000 (NT) (the Act). The document was found in the deceased’s belongings and is believed to be a copy of his Will. Additionally, Jennifer sought a grant of probate of the deceased estate.

Section 10(2) of the Act allows the Court to accept a document that expresses the testamentary intentions of it’s maker but does not meet the formal requirements of the Act as their will. The Court held that in this case s 10(2) is not relevant as the document appears to be a copy of the Will that was executed according to the Act.

Copy of the Will

The copy of the Will (the copy) appoints Jennifer as Executor and leaves the deceased’s “share of the house plus contents of furniture plus the land and garage” to her. As the property was held as tenants in common an application for probate of the deceased’s estate is necessary to transfer the deceased’s share to Jennifer.

The deceased’s signature was identified on the document dated 6 April 1990 which was signed by two witnesses in the presence of each other, one of whom is now deceased.

Jennifer’s solicitor confirmed that the whereabouts of the original Will are unknown and believed that the copy is a true copy of the original. Further, the Court requested the solicitor make enquiries with the Office of the Public Trustee of the Northern Territory; these confirmed the Public Trustee is not in the possession of a Will for the deceased and has no interest in the estate.

The Decision

The following matters must be established when seeking a grant of probate of a lost Will: it must be established that there was a Will and that that Will revoked all previous Wills; the applicant must overcome the presumption that when a will is not produced it has been destroyed; there must be evidence of the terms of the Will and evidence of the Wills due execution.

The Court found that in the circumstances it is most unlikely that the deceased destroyed the Will intending to revoke it; on the balance of probabilities, the original Will was lost. Similarly given the particular provisions and bequests in the Will and that the copy was found in the deceased’s belongings, on the balance of probabilities, it is a true copy of the deceased’s Will.

The Court was satisfied on the balance of probabilities that the presumption in favour of destruction and change of testamentary intent is rebutted. As it is unlikely that the deceased would destroy his Will, change his testamentary intent and keep a copy of the revoked Will with his possessions.

The Court admitted the copy of the Will to Probate; granted Probate of the estate to Jennifer and ordered that costs of the application be paid out of the estate.

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