Valerie Robson made her will with Sunshine Coast solicitors in December 2004.
She sent a copy to her stepsister Ann with a note to say that she had been appointed executor.
The photocopied will Ann received bore Valerie’s handwritten instructions stating “Annie – Copy of my Will. Any questions – just ask Val”. It also contained a second handwritten inscription “Original with…” to indicate the original had been deposited with the solicitors whose firm name was recorded on the will as having prepared it.
The photocopy was of the signed document. It showed the original had contained the usual attestation to indicate the will had been duly executed and witnessed.
Six years later in December 2010, Valerie was diagnosed with dementia. Then in March 2013 her brother Gordon Hirst was appointed guardian to make decisions regarding her accommodation and health care.
Sometime later, the solicitors who had prepared the will contacted Ann suggesting that the original document be collected from them.
Valerie died in August 2019 prompting a search for the original will for probate purposes.
The solicitors’ records confirmed Gordon had collected the will from them. But Gordon’s numerous searches of Valerie’s papers at his home – among which he believed he had placed the document – failed to locate it.
With only the photocopied will and no original document, Ann and her co-executor could not seek the usual and relatively inexpensive, “common form” Grant of Probate from the Supreme Court Registry.
Rather, she was compelled to make formal application to a Judge to decide whether a Grant should be made on the basis of the photocopy. The application was accompanied by affidavits by Gordon and Ann deposing to the circumstances and exhibiting Ann’s copy of the signed will.
When the matter was considered by Justice Susan Brown “on the papers” in March 2020, Her Honour had to be convinced that:
- There actually was a will
- The will revoked all prior wills
- There is evidence of the terms of the will
- The will was duly executed
- There was evidence to overcome the presumption that when an original will can’t be found it was destroyed by the will maker with the intention of revoking it
The photocopied will – exhibited to Ann’s affidavit – sufficiently answered each of the first four obligations.
But how could the court be assured that Valerie hadn’t destroyed the document with the intention of revoking it before she had died?
To clear this last hurdle, Ann presented an affidavit from Gordon to the effect that Valerie had not entered his home – and therefore had no opportunity to destroy the will – from the date of his collection of the original from the solicitors’ office in 2013 until the date of her death.
Such evidence was – according to Justice Brown – sufficient to overcome the long-standing presumption that if the original could not be found, it had been destroyed.
The court also had to be satisfied Valerie had capacity to make the will in December 2004.
Evidence tendered from her treating Doctor as well from her family showed that although Valerie had developed dementia, she exhibited no symptoms of impaired capacity until much closer to 2010 when the diagnosis was made.
The Court concluded on that evidence, that Valerie had the requisite mental capacity at the time the will was made.
Problem solved, but clients should note that while the loss of the original will – was in this instance – ultimately not fatal to proving it to be valid, additional costs were incurred in seeking and obtaining a Judge’s ruling.
The further extensive evidence required here as to mental capacity would not likely have been required in the case of a “common form” application.
Keeping original wills and similar documents in safe custody with your solicitor avoids problems such as these. That precaution will also save sleepless nights, like those Gordon perhaps encountered until the matter was satisfactorily resolved.