In Queensland, s13 of the Succession Act 1981 describes how a testator may revoke a previously executed will. A testator can revoke a Will by drafting a new Will, signing a document that indicates a desire to revoke the Will or its parts, burning, tearing, or otherwise damaging the Will with the intention to revoke it, or altering the Will in a way that shows the testator’s intent to revoke it.
If a Will is accidentally damaged or marked and there is no indication that the testator meant to revoke or alter it, the executor must ask the court to declare the Will valid. The executor must provide details about the circumstances surrounding the damage to the Will and show that the testator had no intention of revoking it.
To revoke or alter a Will, the testator must have testamentary capacity. Testamentary capacity means understanding the nature of a will and how its terms operate. The level of capacity required varies with the Wills complexity and the number of possible claimants.
If a testator does not have testamentary capacity and damages or destroys their Will intending to revoke it, the Will remains valid. On the other hand, if the testator has testamentary capacity and deliberately destroys the Will in order to revoke it, the Will is no longer valid.
The result will depend on the particular circumstances in cases where family members are aware of a deceased individual’s Will but cannot locate it, or they possess a copy but cannot find the original.
Suppose it is established that the original Will was in the testator’s possession but is now missing. In that case, the Court will presume that the testator destroyed it, intending to revoke it.
If the original Will was held by a party other than the testator and is now lost, anyone wishing to uphold it must submit a copy (signed or unsigned) to the probate office. They must demonstrate that the copy is accurate, properly signed and witnessed and that the testator did not deliberately destroy it. If the executor cannot locate a copy of the Will, they must try to find out who kept the original. If no Will can be found, the estate will be distributed according to intestacy laws.
Re Allan (dec’d) [2024] QSC 277
Mark James Allan (the applicant) and Joanne Maree Allan (the deceased) were married on 19 September 1992 in Brisbane and had two children.
1997 Will
On 17 October 1997, the applicant and the deceased each executed Wills (1997 Wills), leaving their entire estates to one another. The deceased’s Will included a clause stating:
“Should my said husband predecease me, THEN I APPOINT my said parents and my said husband’s parents to be the Joint guardians of my infant child or children.”
The applicant’s 1997 Will included a similar clause, addressing the possibility of Joanne predeceasing him. The deceased’s original 1997 Will is missing, but a copy exists.
2003 Will
On 22 November 2003, Mark and Joanne executed new Wills (the 2003 Wills), similar to the 1997 Wills, except that only the applicant’s parents were appointed guardians of the children instead of all four grandparents. Solicitors prepared both sets of wills, and as of July 2009, the solicitors retained the 2003 wills.
In July 2009, approximately two months before her death, the deceased and the applicant collected the 2003 Wills from the solicitors’ office. The applicant claims that he and the deceased destroyed the 2003 Wills, intending to revoke them and reinstate the 1997 Wills.
Letters of Administration
In 2020, the applicant applied for letters of administration based on a copy of the deceased’s 1997 Will. The court refused the application, concluding that:
- a. The deceased’s 2003 Will likely included a clause revoking all prior wills.
- b. By executing the 2003 Will, the deceased revoked her 1997 Will.
- c. In July 2009, the deceased revoked her 2003 Will by destroying it with the intent to revoke.
- d. The revocation of the 2003 Will did not, as a matter of law, revive the 1997 Will.
- e. None of the conditions under s17 of the Succession Act 1981 for reviving a revoked will were satisfied.
The applicant now acknowledges that the deceased died intestate and seeks letters of administration of the deceased’s intestate estate. He has requested the application be determined on the papers without an oral hearing.
Rule 489 of the Uniform Civil Procedure Rules 1999 permits applications to be decided without an oral hearing unless certain exceptions apply. No exceptions outlined in Rule 489(2) are relevant in this case, and there are no factual disputes.
The applicant’s evidence is supported by Janice Thomas, a senior conveyancing clerk at the solicitors’ office, who confirmed that records show the 1997 Wills were replaced by the 2003 Wills, which were subsequently collected and marked as destroyed.
This application has no reason to require an oral hearing. Under Rule 610 of the Uniform Civil Procedure Rules 1999, the applicant, the deceased’s surviving spouse, has the highest priority for letters of administration in intestacy. No competing applications have been made.
The Court was satisfied:
- a. Joanne is deceased.
- b. She died intestate, having revoked both her 1997 and 2003 wills without making a subsequent will.
- c. Mark was her spouse at the time of her death.
- d. Mark has priority for letters of administration, and no other party has applied.
According to the registrar’s formal requirements, the applicant should be granted letters of administration in intestacy for the deceased estate. The estate will bear the costs of the application on an indemnity basis.