In South Australia, where a will last known to be held by a testator before their death, cannot be found the Supreme Court presumes that the testator intended to revoke the will.
If the executor is seeking to administer the estate according to the lost will, they must rebut the presumption it has been revoked by proving that the deceased intended the copy of the document to be their final will.
Probate on lost will
Rule 69 of Probate Rules 2015 provides for grants in respect of copied wills. Applications are supported by an affidavit providing:
- the due execution of the will;
- its existence after the death of the testator; or
- following the testators death the will cannot be found evidence as rebuts a presumption of its revocation by the testator; and
- the accuracy of the copy or other evidence of the contents of the will,
- the consent in writing to the application by all persons who may be prejudiced by the grant.
In the Estate of Lisa Karen Hall (Deceased) SASC 117 at  the Supreme Court set out the applicable principles for the admission of a copy of a missing will to probate:
- that there is evidence of the terms of the original will;
- that the original will existed;
- that the original will was duly executed; or,
- satisfies the legislative requirements to be admitted to probate as an informal 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 capacity and have consented to the application; and
- that the presumption of revocation does not arise or has been rebutted.
Colin Brown (the deceased) died on 29 December 2018 aged 82 years. The deceased was survived, inter alia, by the appellant, his nephew, David Brown.
David claims that he was always close to his uncle, but had become closer to him in the last 10 years of his life helping him more with ordinary everyday tasks his uncle struggled with.
The main asset of the deceased’s estate was a residential property. In July 2014, the deceased made a will (the 2014 Will) leaving the residential property to The Scout Association of Australia, South Australia Branch Inc – the respondent.
On 12 April 2016, the deceased told the appellant he had changed his will and that the appellant would receive the residential property and all its contents. Concerned about the 2014 Will, the appellant made a note of the discussion with the appellant and they both signed at the bottom of the 2016 note.
On 21 January 2018, the appellant and the deceased argued about the terms of the deceased’s will. The appellant submitted that following the argument, he had taken the deceased to the deceased’s solicitors’ office.
However, the solicitor had no file notes recording that the deceased attended his office on 21 January 2018. Additionally the deceased wrote to the appellant on 12 February 2018, stating:
Today I have another appointment with my solicitor and I write you to tell you that my will has not been changed or altered – you will still inherit my home and all contents on my death.
Notably, the primary judge found that the deceased did not meet with his solicitor to seek advice or provide instructions on either date holding that while the 2016 note and the letter of 12 February 2018 appear to represent a contrary intention, the judge found that the deceased made those representations to deceive the appellant as to his testamentary intentions.
The appellant contended that the 2016 note effectively revoked the will by operation of s 12(3) of the Wills Act. The appellant also challenged the judge’s costs order.
A testator may revoke an earlier will under s22 of the Wills Act 1936 by:
- marrying or entering a registered relationship;
- implication, when the terms of a later will contradict the terms of an earlier one; this can lead to uncertainty, however and is usually expressed by including a revocation clause in the later Will, for example:
I revoke all former Wills and Testamentary dispositions and declare this to be my Last Will and Testament
- If the testator destroys the will, or asks someone else to do it, with the intention of revoking the will;
The court held the 2016 note did not satisfy the formalities required for this revocation under s 22 of the Wills Act 1936 (SA).
In dismissing the appeal the Court held that although the appellant accepted that its origins lay in misrepresentations by the deceased, by the time proceedings were instituted, the appellant knew or had the means to know, that there was almost no evidential basis to support the existence of a lost will.
In ordering the appellant pay the respondent’s costs the Court agreed with the primary judge that it was unreasonable in the circumstances to have instituted the proceedings.