In Price v Tickle & Ors [2011] QSC 206, the deceased had left more than one Will but couldn’t locate their most recent. The question arose whether the previous Wills should be presumed revoked. The Court applied the reasoning in Whiteley v Clune (No.2) The Estate of Brett Whiteley (13 May 1993 unreported — Supreme Court of NSW — BC 9301902), which provided five matters to be satisfied for the Court to grant probate of a lost will:
(a) First, There was a will.
(b) Second: That the Will revoked all previous wills.
(c) Third: rebuttal of the presumption of the destruction of a Will that cannot be produced.
(d) Fourth: There must be evidence of the Will’s terms.
(e) Fifth: There must be evidence of the Will’s execution.
The matter
In the Will of Giuseppe Benito Sydney Calabro [2024] QSC 71 Roma Catherine Calabro has applied for a grant of probate on a copy of the Will of her late husband, Giuseppe Benito Sydney Calabro (also known as Joe Calabro), which was dated 28 April 2020.
The deceased passed away on 15 October 2023 at the age of 66. The applicant is the sole named executor in the deceased’s last Will, dated 28 April 2020, which is available as evidence. Seeking the grant of probate of a copy of the Will following the loss of the original Will, and all reasonable searches for it have been unsuccessful.
The applicant served notice of the applicant’s intention to apply for a grant of probate upon the Public Trustee on 23 November 2023. Publishing a notice in the Queensland Law Reporter on 1 December 2023.
The lost Will
The circumstances in which the Will has come to be lost, which I accept, are as follows:
(a) The deceased and the applicant met with Greg Cahill of Cooper Grace Ward Lawyers (“CGW”) on 22 October 2019 to provide instructions for their wills’ preparation.
(b) On 2 April 2020, CGW sent the deceased and the applicant a letter with copies of their wills for signing.
(c) Both the deceased and the applicant signed their wills on 28 April 2020 in the presence of witnesses Ms Andrea Lysnar and Mr Michael Lucas. At the time, Ms Lysnar was performing various administrative duties for the deceased’s family and continues to do so.
(d) After both parties signed their wills, Ms Lysnar returned them to CGW.
(e) On 30 April 2020, CGW received the original wills by mail, scanned and saved a copy of the Will to its online database.
(f) The original Will was entered into CGW’s document retention system on 10 June 2020 in an envelope packet created for the deceased’s original documents.
(g) On 20 April 2021, the deceased met with Ms Donna Benge of Piper Alderman to discuss his estate planning and told Ms Benge that CGW held the original of his Will and did not want to update it.
(h) At the deceased’s request on 10 August 2022, Ms Lysnar emailed CGW asking for confirmation that the original Will was in their custody. CGW gave this confirmation on 11 August 2022.
(i) After the deceased’s death in October 2023, Ms Benge sent a letter to CGW on 1 November 2023, requesting the original of the Will.
(j) In December 2023, CGW found the deceased’s empty envelope packet containing the Will.
(k) CGW conducted an extensive search of their internal systems, consulted employees, and inquired with other advisors about the deceased’s family but could not locate the original Will.
(l) Despite being unable to find the original Will, CGW has no record of:
(i) releasing the original Will to anyone (including the deceased) or
(ii) receiving any instructions from the deceased to destroy the original Will.
The presumption
The real issue is whether the applicant has overcome the presumption that in not producing the original Will to the Court, the deceased destroyed the Will intending to revoke it.
Based on the applicant’s evidence, which is reasonable considering the length of their marriage, it is unlikely that the deceased would have revoked or made a new will without discussing it with their spouse. There is no evidence to suggest that the deceased created a new Will. Therefore, it is highly probable that the deceased did not revoke their Will and that someone in the solicitor’s office lost it after 30 April 2020. Based on the facts presented, the Court was confident that the applicant established points one, two, four, and five.
The deceased’s Will appears to embody their testamentary intentions, revokes all previous wills, and is evident on the face of the document. Additionally, the Court finds that the deceased executed an original Will on 28 April 2020 in a manner that meets the required provisions of the Succession Act 1981 (Qld).
The Court found that the applicant had rebutted the presumption of destruction of the Will for the following four reasons:
(a) First: After the deceased executed the Will, the original was received by CGW and stored using their sophisticated system for storing safe custody documents;
(b) Second: Aside from a request on the deceased’s behalf confirming CGW still had the original Will, the deceased never asked CGW to release or destroy the Will;
(c) Third: There is no record that CGW ever released the Will from safe custody, and
(d) Fourth: There is no evidence that the deceased made a new will.
The decision
The Court was satisfied that the applicant has satisfied all five necessary criteria as set out above and is entitled to a grant of probate of a copy of the Will.
The Court ordered that:
(a) Subject to the formal requirements of the Registrar, the photocopy of the Will dated 28 April 2020 of Giuseppe Benito Sydney Calabro (also known as Joe Calabro) late of 290 Cobaki Road, Cobaki in the State of New South Wales, that is exhibit “A” to the affidavit in support of probate application of Roma Catherine Calabro made on 26 March 2024, be admitted to probate until the original Will or more authenticated evidence be brought into and left in the Registry.
(b) The costs of this application are to be paid from the estate