Where a Will is lost the executor has to consider whether the deceased intended to revoke the will by destroying it or to apply for a Grant of Probate of a copy of the will supported by an affidavit outlining the searches conducted and evidence the deceased intended the lost Will to be their last.
The authority to admit a copy of a will to probate derives from the common law, which predates the Succession Act 1981 (QLD). Courts in Australian jurisdictions have held that for a grant of probate to be made on a copy of the Will, the following matters must be established
(a) there is actually a Will or document purporting to embody the testamentary intentions of a deceased person;
(b) the document revoked all previous Wills;
(c) the presumption that when a Will is not produced it has been destroyed is overcome;
(d) there is evidence of the Will’s terms; and
(e) there is either evidence of due execution or that the deceased person intended the document to constitute his or her Will.
Frizzo & Anor v Frizzo & Ors [2011] QSC 107 at [161] quoting Cahill v Rhodes [2002] NSWSC 561 at [55].
The matter
In the Will of David Arthur Friend (deceased) [2023] QSC Sheldon Friend and Mirinda Voglino (the applicants ) applied for probate of a photocopy of the Will of the deceased dated 10 March 2020 limited until the original Will or more authenticated evidence is brought and left in the Registry.
The court expressed that the circumstances in which probate of the photocopy of the Will was sought are highly unusual: at [2]
The applicants had engaged Lockett McCullough Lawyers to prepare an application for probate for the deceased. Courtney Locket (CL) the solicitor with carriage of the matter, was the last person to have possession of the deceased’s original Will.
CL had the original Will in her car when travelling between her firm’s two offices. Her car was broken into and the original Will was stolen. While the car was recovered, the contents of the car including the original Will of the deceased were not.
The applicants held a photocopy of the Will which is “Exhibit A” to their joint affidavit.
The execution clause of the Will refers to 7 August 2018 while the Will cover refers to 10 March 2020. According to CL the Will was made on 10 March 2020.
The application was served on the Public Trustee and a copy of the application advertised in the Queensland Law Reporter.
The decision
In granting the application the Court held that (a), (b), (d) and (e) were established. Importantly as the original Will was held by CL following the deceased’s death and was lost subsequently overcoming the presumption that when a Will is not produced it has been destroyed does not apply in this case.
heirs & successes 