A court has ruled that the mere fact an original will could not be found did not compel the conclusion the will-maker had revoked it by destruction.

Prem Masih and wife Patricia lived in Canada with their son Edwin and his kids, Edward and Edweana, until all but Edwin moved to Australia in 1983. After arrival, Prem and Patricia formally adopted the grandchildren.

Edwin – who got on well with his mother but had a difficult relationship with his father – eventually migrated as well.

iStock 535114861 1 1Prem made his will with a Beenleigh solicitor in January 1993, as did wife Patricia and son Edwin but – after his death in April 2020 – the original of Prem’s will could not be found.

By reference to a copy, all agreed the will – which in the circumstances left the entire estate to Edwin, Edward and Edweana in equal shares – had been validly made.

The records of the Beenleigh firm – which had subsequently been acquired by Ownit Conveyancing – revealed the firm had held all three original wills but did not show what had happened to them when they were removed from its custody or to whom they had been supplied.

Edwin – contending that Prem must have received the original back from the solicitor – applied to the court for a Grant of Letters of Administration on intestacy ie in the absence of any valid will.

He argued that as the original was unable to be found, the usual presumption ie that Prem had destroyed the will for the purpose of revoking it, should apply.

The matter came before Justice Elizabeth Wilson in the Supreme Court at Brisbane who had to first consider whether the original document could in fact be traced into Prem’s hands.

Edwin argued that given that other documents that had been in the custody of the Beenleigh solicitor – Powers of Attorney – were found among the deceased’s possessions, the will had most likely also been returned to Prem by the solicitor.

He also noted that his own original Power of Attorney – but neither of the two other wills which were also missing – were found among his father’s papers.

Edward opposed his father’s submission finding favour with Justice Wilson who observed there were “too many unknowns in this case”.

She ruled that the evidence insufficient to establish the the chain of possession of Prem’s will and was certainly not enough to conclude it had been returned to the deceased.

To arrive at a conclusion as to what had occurred to the document “would be entering the realm of speculation,” Justice Wilson observed.

As Edwin fell short of proving the original will had been returned to Prem, the presumption of destruction and revocation did not arise and did not need to be rebutted by his son.

Edwin’s application was dismissed. This means that an application for a Grant of Probate of the 1993 will based on the available copy if made, will most likely be successful.

The outcome appears to make no difference as to who will benefit from the estate because the beneficiaries under the 1993 will – Edwin, Edward and Edweana – are the same as the beneficiaries under the intestacy rules that would have applied if the 1993 was found to have been destroyed.

Perhaps the contest was essentially over who got the authority to administer the estate.

The case demonstrates the importance of good record-keeping by solicitors. In this instance, better records would perhaps have allowed to court to presume the will had been revoked by removing the doubt about whether it had been returned to the will-maker.

Masih v Masih [2021] QSC 207 Wilson J, 19 August 2021