Mary Elizabeth Patchett (the deceased) executed a Will (the Will) on 2 October 2014 in the presence of two witnesses, appointing her son Neil Patchett,(the applicant) as her executor and trustee. The applicant prepared the Will at the deceased’s home and left it for her to sign in front of her witnesses.
After the Will was signed and witnessed, the deceased bound it with a metal paperclip in the top right-hand corner and gave it to the applicant who placed it in a plastic sleeve and then filed it in his office.
Application for a grant of probate
On 2 July 2021, the applicant advertised a notice of intention to apply for a grant of probate in the Queensland Law Reporter. A copy of that notice was served by email on the Public Trustee on 24 June 2021.
On 4 August 2021, an application for probate was filed on behalf of the applicant. Following examination of the Will, the deputy registrar identified:
a) impression and rust-coloured markings on the Will.
b) that pages 4 and 6 of the Will are copies and not original pages
The applicant had not removed the paperclip or made a copy of the document. The Will had remained filed in the plastic sleeve in the applicants office until he removed it in order to commence administration of the estate.
Affidavit of Plight
On 25 August 2021, the applicant filed an Affidavit of Plight, Condition, and Finding submitting the rectangular impression with rounded edges is of the dimension of a paper clip and the rust-coloured marks on the first page of the Will align with that impression. Additionally, a search was made in all likely and unlikely places to locate the original pages 4 and 6 of the Will without success.
The applicant concluded, and the Court accepted it was likely the deceased had made a photocopy of the executed and witnessed Will and, mistakenly included the copies of pages 4 and 6 in the Will and the original of those pages with the photocopy.
On 13 October 2021, the applicant sought an order that the document comprising four original pages and two copied pages of the Will be admitted to probate.
Five matters must be established to succeed in admitting a copy of a Will to probate:
(a) that there was a Will.
(b) that the Will revoked all previous Wills.
(c) that the applicant overcomes the presumption that a Will, which cannot be produced to the Court, was destroyed by the testator to revoke it;
(d) that there is evidence of the terms of the Will; and
(e) that the Will was duly executed.
The Court accepted that the original pages 1,2,3, and 5 together with the copies of page 4 and 6 produced by the applicant is evidence that there was a duly executed Will with clearly expressed terms. Similarly the original pages are evidence that the deceased revoked all previous Wills. As four original pages of the Will were handed by the deceased to the applicant the Court believed that it is doubtful a presumption of destruction arises.
Additionally, the Court accepted the deceased provided the original and copied pages to the applicant and retention of them in the same form is sufficient to overcome any presumption that the deceased destroyed part of the Will to revoke it.
The Court ordered that a combination of the original pages 1, 2, 3, and 5 and the copies of pages 4 and 6 of the Will be admitted to probate until the original Will or more authenticated evidence be brought into and left in the Registry.