Lawrence v Australian War Memorial [2014] NSWSC 757

A will, once executed, remains the Will of the willmaker unless the willmaker revokes it during his or her lifetime. If a Will is lost during the willmaker’s lifetime that fact does not necessarily mean that it has been revoked. However, if the Will cannot be located it is presumed that the willmaker intentionally destroyed the Will. This presumption of revocation can be rebutted in circumstances where satisfactory evidence can be produced to the contrary. The presumption of revocation and the evidence to rebut that presumption was considered by the New South Wales Supreme Court.

Allen James North, known as “Jim”, died in 2011 a single man with no children of his own and no surviving immediate relatives. Following his death the police found a red folder marked “AJN’s Will” on his property which contained a series of Wills made by Jim over the last six years of his life. Jim used an electronic typewriter with a golf ball to produce a clear, original typed script and carbon copy of the Wills. There were only small changes to the beneficiaries and the percentage division of his estate between those beneficiaries over the various Wills.

The Australian War Memorial was the main benefactor throughout each of the Wills. The Australian War Memorial was significant to Jim as his father had fought at Gallipoli and he had previously donated some of his father’s war medals in memorial.

An original Will, witnessed by his cousin Suzanne Lawrence and her husband in 2008 was found inside the folder but was torn in half. That act of tearing the Will normally indicates the intention of a willmaker to revoke that document. There was also another original unsigned document found stapled to the back of the folder with a 2009 date and headed “This is the last Will and Testament of me Allen James North” . The  2009  document  contained  some  typing errors and there was a carbon copy also in the folder stamped with the word “copy”.

There was evidence before the court that Thea Kouznetsoff, who had known Jim since childhood, had witnessed but did not read a 2009 Will. This Will could not be found so a rebuttable presumption of revocation arose. The executors named in all the Wills applied for probate of this missing Will contending that it was the same as the 2009 document stapled to the back of the folder.

The court was concerned as to:

  • whether the presumption that the missing Will was destroyed had been rebutted
  • if the presumption had not been rebutted, whether the original torn 2008 Will could be admitted to probate on the grounds that Jim had torn up and revoked that Will only upon the condition that he executed a later valid Will.

There was consistent evidence that Jim was almost obsessive with his desire to not die without a valid Will. It was his practice to regularly carry a leather satchel containing his most important papers, but this was never found following his death. A possible scenario was that the original Will was in the satchel and that the satchel had been lost. Evidence was also given that Jim believed he had a Will even a fortnight before his death. There was also no reason why Jim would have changed the gifts to the beneficiaries and, particularly, the Australian War Memorial.

The court inferred that the missing will was identical to the 2009 document in light of evidence that:

  • the 2009 document reflected the sort of Will Jim would have made
  • the original draft and copy were deliberately kept in a file and no later Will was found
  • it was possible that the 2009 document was re-typed to correct the typing errors Jim had made due to his careful nature.

The presumption of revocation was therefore rebutted and the 2009 document was admitted to probate. While the possibility was borderline, the court also inferred that if the presumption had not been rebutted, it would have found that the torn 2008 Will could also have been admitted to probate.

Comment: The presumption of revocation was easily rebutted in this case because of the clear evidence of Jim’s friends and family about his obsessive nature and desire to die with a valid Will. There is no doubt that if Jim had ensured that the Will had been stored in a safe place and communicated that whereabouts to the executor, this issue would not have arisen and the costs and time delays in administrating the estate could have been avoided.