Lost will; animo revocandi

When an original Will has been lost or destroyed without the intention of revoking it, an application can be made for a grant of probate on the copy of the Will.

The order of the Court normally includes a direction that the grant be limited until the original Will or a more authentic copy can be found.

“if a will, traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and that presumption must have effect, unless there is sufficient evidence to repel it”:

Re Demediuk (No 3) [2019] VSCA 79


William Ditchburn who died from cancer on 22 December 2016 made a Will on 23 September 2011 that cannot be found.

The Will was prepared and witnessed by William’s solicitor who kept a copy of the unsigned will on file.

William appointed his sister Patricia Ulman as the sole executor and beneficiary of his estate which included real property in Cranbourne West (the Cranbourne property), and personal assets and liabilities.

Chheang Mom and William had met at work in 2012. Chheang lived with William at the Cranbourne property from about 2012 until his death. Chheang’s daughter, Sophear Khem and her grandchildren also lived at the Cranbourne property for several years.

After his stage four cancer diagnosis William’s solicitor advised that due to his illness and new living arrangements he should change his Will. William denied he was in a relationship with Chheang and chose not to update his Will as he was satisfied with his current arrangements.

The proceedings

Patricia Ulman submitted an unsigned and undated copy of the will seeking a grant of probate of that document until the original will, or a more authentic copy of it can be filed with the Court.

Chheang opposed the application for a grant of probate of the unsigned Will.

Patricia submitted that Chheang lived at the Cranbourne property as the deceased’s tenant. Although Chheang submitted that their relationship extended beyond that of landlord and tenant, the nature of their relationship remained unclear.

The Court reiterated the general principles required to prove a lost Will:

  • that the Will existed;
  • that the Will revoked all previous wills;
  • that the presumption of destruction by the deceased animo revocandi is overcome;
  • there must be evidence of the terms of the Will;
  • there must be evidence of due execution of the Will.

The decision

The Court was satisfied that the Will existed was rational and completely disposed of William’s estate.

Despite changes in William’s living arrangements following the execution of the Will discussions with his solicitor following a cancer diagnosis confirmed his testamentary intentions remained the same.

Patricia succeeded in overcoming the presumption of destruction and revocation with the Court making orders that probate of the Will copy be granted to her.

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