The Supreme Court of Queensland recently handed down its decision In the Will of Gregory Thomas Barns. The decision concerned an application for admission to probate of a copy of the deceased’s Will dated 25 February 1991.
At the time when the deceased passed away, the deceased’s original Will could not be located. The deceased’s eldest brother had been appointed as his executor and had applied for a grant of probate of a copy of the deceased’s Will. The deceased by his Will divided his estate between his three brothers, Peter, Graham and Patrick.
Before the Court could declare that the copy of the deceased’s Will was in fact his last valid Will, the deceased’s alleged de facto spouse (Mr Sullivan) filed a caveat requiring a Court to determine in the absence of an original Will that there was a presumption that the deceased had revoked his Will by destruction. In circumstances where the deceased passed away without a replacement Will, his estate would then have been divided pursuant to the intestacy provisions of the Succession Act 1981.
Evidence of the deceased’s solicitor was that the deceased was interested in making a new Will prior to his death including the prospect of providing Mr Sullivan with the right to occupy the deceased’s house after he passed away. However no such Will was executed or agreed to by the deceased.
The Court found that the deceased had made a Will in 1991 disposing of his estate in favour of his brothers as he had not married and did not have any children of his own. Prior to his death he indicated to his sister-in-law that the issue of his Will was all sorted and everything was filed together. Shortly prior to the deceased passing away, the deceased told Peter (one of the deceased's brothers) that he was appointed as his executor of his estate.
The Court held that the deceased was a careful man who would not have contemplated, by destroying his Will and not making another, that he would die intestate. Had he died intestate the intestacy rules may have resulted in Mr Sullivan receiving the whole of the deceased’s estate in accordance with the intestacy rules.
The case is an important reminder for willmaker’s to regularly review their estate plan and to ensure that appointed executors and family are aware of the location of the most recent original Will.