Sometimes a copy just doesn’t cut it. Great artwork, sculptures, first edition prints, are all examples of where a copy just doesn’t have the same effect, but what about a will? Whilst a will isn’t a piece of art (though some lawyers may disagree), the value of the original is still recognised.
It’s uncommon for a will to be lost or stolen, but it does happen. This can cause significant problems to all involved, as the court rules prevent a registrar from granting probate where an original will is not produced. Furthermore a failure to locate the original will creates a general presumption that the original was destroyed or has been revoked (presumption of revocation).
Where an original will cannot be located, an estate may be required to be dealt with as if the person died intestate (without a will), alternatively parties may apply to the Supreme Court and attempt to have a copy of the will granted probate. The Supreme Court derives this power from the common law.
In the recent case of In the will of Gregory Thomas Barnes  QSC 66, The Supreme Court was asked to determine whether it was appropriate under the circumstances to admit a copy of the will to probate. In its decision, the Court relied on the previous decision of Cardie QSC 265, in which the Chief Justice laid out the requirements that must be met for a copy of a will to be admitted to probate.
These principles are:
- The copy demonstrates that an original will existed;
- The copy revokes all prior wills;
- The will is clear and precise;
- The original was properly executed;
- The presumption of revocation must be rebutted.
In the case of Barnes, the critical issue was whether the presumption of revocation could be rebutted. Evidence was admitted at trial that Barnes believed that the issue of a will was “all sorted” and no rupture of relevance occurred between Barnes and the beneficiaries that would warrant any assumption that the will was destroyed. Whilst it became apparent that Barnes had considered creating a new will, he did so under the belief that the will in question was currently valid. He ultimately did not create a new will.
Having a copy admitted to probate is a complicated Supreme Court proceeding and involves a great deal of both procedural and legal knowledge to be successful. McNamara & Associates commonly deals in Wills and Estate matters before the Supreme Court and can provide the requisite knowledge and expertise to present your case in the most effective way possible. Call McNamara & Associates on 1300 574 974.