When Jennifer Joy Ough died on 29 April 2023 at the age of 62, she left a will she had made in July 2014.
It contained multiple pecuniary gifts totalling $375,000 to relatives and charities and left the residue of the estate to two family members Rachelle Ough and Matthew Ough.
Unfortunately, the original of that will could not be found raising the question of how to validate a copy of a will that has been lost.
Jennifer had never married, had no children, and was survived by her brother Geoffrey who would take the entire estate if there was found to be no valid will remaining.
With that in mind, he lodged probate caveats asserting the will had been revoked “by destruction” and separately sought administration.
Jennifer had chosen her friend Rachelle as executor but she renounced the role. Her alternate executor Michael Paterson — also the drafting solicitor — commenced proceedings to have the copy of the will he had retained in electronic form pronounced as valid “in solemn form”.
A mediation in those proceedings secured an agreement that the matter would proceed to an undefended trial for the copy to be upheld and that letters of administration would issue to Matthew as one of the residuary beneficiaries.
To facilitate that outcome, the alternate executor Michael Paterson also renounced his appointment.
The Supreme Court of Western Australia was then asked to confirm in the undefended proceedings that the scanned copy of the will held by the solicitor be proved “in solemn form” and that to order the issue letters of administration to Matthew as residuary beneficiary.
Even with that consensus, Justice Alain Musikanth emphasised that a solemn form pronouncement cannot be entered by consent. The court must – he ruled – be satisfied of its validity on the evidence.
Affidavits from the solicitor and a witness confirmed Jennifer’s execution of the will in their presence.
Further, the copy on its face bore the signatures of Jennifer and two witnesses, activating the ordinary presumptions that attend a regularly executed will: capacity, knowledge and approval, and testamentary intention.
No contrary evidence was led and the terms themselves appeared rational: measured legacies to named relations and charities and a gift of the remainder of the estate consistent with ordinary familial beneficence.
His honour noted the familiar assumption that a will not found after death and last known to be in the testator’s possession is presumed to have been destroyed with intent to revoke it.
On the balance of probabilities however, he ruled that the presumption was displaced.
He arrived at that conclusion in part by considering the disarray depicted by photos of her home and home office – major clutter; unfiled papers; and many important items out of place – that suggested accidental loss was more likely than deliberate destruction.
The pattern across four earlier wills—each original located and none destroyed despite revocation—also told against an inference that she chose intestacy by tearing up the latest.
And while she toyed with mark ups in 2019, there was no evidence of a firm intention to revoke the will in the nearly four years before her death.
With due execution established and the lost will presumption overcome, the court pronounced the 2014 document’s force and validity in solemn form.
The solemn form order ended any challenges to the will that might have arisen had a mere “common form” grant been issued through the court registry as is the usual case.
Because no executor remained willing to act, the court also directed that letters of administration issue to Matthew as a residuary beneficiary ensuring the estate could move from legal limbo to orderly administration.
In the end, a tidy testamentary scheme set out in the 2014 will survived a very untidy paper trail.
