In the will of Gregory Thomas Barnes  QSC 66
When Gregory Thomas Barnes died in 2013 he was a single man and had no children of his own.
An original Will for the deceased could not be located, however a copy of a Will came into the possession of the applicant, the brother of the deceased, Peter Barnes. The solicitors for the respondent, Mr Sullivan, had subsequently provided that document to Mr Barnes.
It was properly executed on 25 February 1991 and the effect of the document was to revoke all former Wills and to leave the deceased’s estate equally to his three brothers. Mr Barnes sought to have the copy Will admitted to probate.
At the time of his death, Mr Sullivan, contended that he was de facto partner of the deceased .
Mr Sullivan lodged a caveat, the effect of which meant Mr Barnes’ application for probate of the copy Will was requisitioned by the Probate Registry of the court. Notwithstanding diligent searches, the original of the Will could not be found and therefore, a rebuttable presumption of revocation arose.
The court was concerned as to:
- Whether the presumption that the original Will was destroyed had been overcome by Mr Barnes.
- Whether over the following two decades since the deceased made the Will, anything arose which showed that the deceased had reason to revoke the Will by destroying it.
The evidence of the deceased’s solicitor indicated that as his health deteriorated, the deceased was interested in making a new Will, possibly giving Mr Sullivan a right to occupy his house after his death, but no such Will was executed or agreed to. The deceased was apparently proceeding on the basis that the copy of the Will would operate unless and until it was changed.
There was no compelling evidence of a major rupture in the relationship between the deceased and his three brothers that may have prompted his cutting them out of his Will, but rather evidence was given by the deceased’s sister-in-law that shortly prior to his death he told her that his Will was “all sorted” and everything was “filed together”. In addition, Mr Sullivan spoke to her about “changing Greg’s Will” as if a Will was then in existence.
In the circumstances, the court concluded that the deceased was a careful man who would not have contemplated destroying his Will and not making another, such that he would die intestate and which therefore combined to rebut the presumption of revocation.
Therefore, the copy Will was admitted to probate.
Comment: Perhaps if the deceased had provided his executor with a copy of the Will, or at the very least advised him where the original was kept, such an application to the Supreme Court may have been avoided.