In Queensland, the Succession Act 1981 provides modification of a Will if the testator and witnesses signatures are present either in the margin, near the modification, or on a memorandum that references the change. However, when disputes arise concerning alterations made without adhering to these requirements, the executor may apply to the Supreme Court to validate the Will based on the testator’s intentions and context surrounding the changes.
Section 13 of the Act provides for revocation, specifying several methods for annulling a Will. These methods include creating a new Will, executing a document explicitly aimed at revocation, or even physically destroying the Will with the intent to revoke it. If a Will is accidentally damaged, the executor can petition the Court to declare it valid if no evidence suggests that the testator intended to revoke it.
It’s important to note that the testator’s testamentary capacity is required to revoke or modify a Will. The testator must understand the nature and implications of the Will they are altering. If a testator lacks testamentary capacity and accidentally damages their Will, it is still considered valid. Conversely, if the testator has capacity and intentionally damages the Will, it is deemed invalid.
In cases where the original Will is missing but known to have existed, the testator is presumed to have destroyed it. If someone else has it, the executor must file a copy with the probate registry of the Supreme Court to authenticate the Will. Lastly, if the executor can’t find the deceased’s Will, distribution of the estate assets occurs following the Succession Act 1981, with no consideration of the deceased’s wishes and preferences and no opportunity for provision to people otherwise unrecognised by the Succession Act 1981.
Lost Will
In Cahill v Rhodes, [2002] NSWSC 561 at [55], Campbell J said that for a “lost” will be admitted to probate, the plaintiff must establish the following five matters:
“First, it must be established that there actually was a Will, or a document purporting to embody the testamentary intentions of a deceased person; second, it must be shown that that document revoked all previous Wills, third, the presumption that when a Will is not produced it has been destroyed must be overcome, fourth, there must be evidence of its terms, and fifth, there must be either evidence of due execution or that the deceased person intended the document to constitute his or her will.”
Campbell J, relying on Sugden v Lord St Leonards (1876) LR 1 PD 154, further observed that if a Will carefully disposes of the testator’s estate and no circumstances between its execution and the testator’s death indicate an intention to revoke it, the presumption of revocation weakens significantly and may be displaced: at [68]; illustrating how the presumption can be overcome when, on the balance of probabilities, the evidence suggests that the Will’s loss is due to reasons other than deliberate destruction by the testator.
If a will is traced to the testator’s possession and not found after death, there is a rebuttable presumption that the testator destroyed it with the intention of revoking it….
…The strength of the presumption depends on the character of the testator’s custody of the will (Sugden v Lord St Leonards (1876) LR 1 P & D 154; McCauley v McCauley (1910) 10 CLR 434; Taylor v Waters (Powell J, Supreme Court, 19 June 1992, unreported)). Moreover, where the will makes a careful and complete disposition of the estate and there are no other circumstances pointing to probable destruction, the presumption has been held to be so slight as not to exist (Sugden v Lord St Leonards; Finch v Finch(1867) LR 1 P & D 371; see R Atherton, ‘The Dispensing Power and Missing Wills’ (1993) 67 ALJ 859 at 862 – 863).
Bar-Mordecai v Rotman [2000] NSWCA 123 at [135]-[136].
In Curley v Duff (1985) 2 NSWLR 716 at 718-719, Young J outlined the legal principles governing the presumption of revocation for lost Wills. The strength of this presumption depends on the nature of the testator’s custody over the Will (Bar-Mordecai v Rotman at [136] per Sheller, Stein, and Giles JJA; Cahill v Rhodes at [48] per Campbell J). Where a Will provides a detailed and comprehensive distribution of the estate, and there is no evidence suggesting probable destruction, the presumption may be so weak that it effectively does not apply (Bar-Mordecai v Rotman at [136] per Sheller, Stein, and Giles JJA). The standard of proof required to rebut the presumption is the balance of probabilities (Evidence Act 1995, s 140).
Given the nature of the fact in issue, it has been said that “clear and convincing proof” is required, with the party bearing the onus being “sufficiently diligent in calling available evidence because the Court will not be prepared to act on material which it considers inadequate” (In the Estate of Ralston (Unreported, Supreme Court of NSW, Hodgson J, 12 September 1996) cited in Cahill v Rhodes at [56]). See also the reference to s 140(2)(c) of the Evidence Act (requiring the Court to take into account, amongst other things, the gravity of the matters alleged) in Pedler v Richardson (Unreported, Supreme Court of NSW, Young J, 16 October 1997), and the observations in Payten v Perpetual Trustee Co [2005] NSWSC345 at [89] – [93].”
Clines v Johnston [2008] NSWSC 524 at [7] per Jagot AJ).
Background
Paul Boyd has applied to admit a copy of Christina Boyd’s (deceased) Will, dated 16 February 2018, to probate. The applicant attached a copy of that Will (Exhibit A) to his affidavit, affirmed on 20 November 2024 and filed on 19 December 2024. The applicant is the deceased’s son and the executor of the Will.
The matter
Hindman J is satisfied that it is not inappropriate to deal with this application on the papers in circumstances where:
(a) the application for probate was advertised;
(b) the persons who might be interested in the grant of probate appear limited;
(c) no evidence suggests that the estate is complex;
(d) there is evidence of the steps taken to find the Will;
(e) the application does not raise any novel questions of law.
A plaintiff must establish five matters for the Court to admit a copy of a Will to probate:
(a) the original Will existed;
(b) the original Will was duly executed;
(c) the terms of the original Will, and it revoked all previous Wills;
(d) that proper searches have been made for the original Will and
(e) that any presumption of revocation of the original Will is rebutted.
In the Will of Christina Boyd [2025] QSC 1, a digital copy of the Will that the lawyers who drafted it for the deceased have maintained confirms the presence of the Will [requirement (a)]. Its provisions, along with the indication that it voided all previous wills [requirement (c)], the Court inferred the proper execution of the Will [prerequisite (b)] since the copy contains an attestation clause and the deceased appears to have executed under circumstances where the necessary formalities are likely to have been observed.
The Will displays the deceased’s signature and those of two witnesses: a paralegal and a solicitor from the law firm that prepared it. They signed the Will at the law firm’s premises; however, neither witness provided an affidavit verifying the signing. Given the previously mentioned detail, the Court accepts this.
The plaintiff cannot locate the original Will despite thorough searches [requirement (d)]. An electronic copy of the Will has always been in the custody of the deceased’s lawyers; their safe custody facilities confirmed that they do not possess the original document, which the solicitor ought to have sworn to, yet only the submissions made on behalf of the applicant contain this information. However, since a solicitor from the firm prepared these submissions, Hindman J was willing to proceed on the assumption that the statement was accurate.
There is no information concerning whether the deceased ever had the original Will, but it would be a reasonable conclusion. A search of the deceased’s belongings at the aged care facility where she lived has not revealed the Will.
The deceased had further consultations with her lawyers around November 2023 concerning creating an Enduring Power of Attorney. There was no mention of any issues with the Will at that time. Hindman J believed a solicitor at the firm should have included this information in an affidavit rather than merely plead it in submissions.
The deceased did not seek advice from other legal practitioners.
The Will remains untraceable; the deceased probably lost it unintentionally. However, the plaintiff made adequate efforts to locate it.
Should a Will be last known to be in the testator’s possession and that Will is subsequently missing, a presumption arises that it was intentionally destroyed by the testator with the intent of revocation [requirement (e)].
The decision
Hindman J stated the relevant presumption as follows:
“… the law presumes that, if a will last traced to the possession of the deceased testator cannot be found, it was destroyed by the testator with the intention of revoking it..” Re Warren (deceased)[2014] QSC 101 at [11]
Hindman J considers the presumption rebutted (if it indeed exists, as it remains unclear whether the deceased ever had the original Will in her possession) in a situation where one would expect the deceased to have consulted her lawyers in November 2023 if she intended to create a new Will.
Additionally, evidence indicates that the Will accurately reflected the deceased’s testamentary intentions as communicated to the applicant; the two brothers would inherit the deceased’s estate equally following the distribution of certain specific gifts.
Consequently, the Court ordered that a copy of the Will of Christina Boyd (deceased), dated 16 February 2018, be admitted to probate.
The applicant sought no order as to costs, nor was it made.