Cahill v Rhodes

In the Estate of Norton [2025] NTSC 51

IN THE ESTATE of PATRICIA ELSIE NORTON (deceased) late of 4/56 Bradshaw Drive, Alice Springs in the Northern Territory of Australia

IN THE MATTER of an application to prove and admit to probate a copy of the Will of PATRICIA ELSIE NORTON

• [1] The deceased died on 25 July 2024 at the age of 87 years. The deceased executed a Will on 10 August 2022 in compliance with the formal requirements. The total value of the deceased's estate is estimated at $226,812. Under the terms of the Will, the deceased's estate is to be divided equally between her daughters Jane Bernadette Miller and Anne-Marie Temple. They are aged 50 and 53 years respectively. The deceased was not married at the time of her death and the two daughters are her only issue. The deceased's daughters would also be solely entitled to the estate under the rules of intestacy.
• [2] Under the terms of the Will, the deceased appointed Jane Bernadette Miller and David Andrew Temple as her executors. David Andrew Temple has subsequently renounced appointment as an executor as he is unable to assume that role. Jane Bernadette Miller has made an application for probate and has filed all necessary affidavits for that purpose. She now makes this separate application that a certified copy of the Will be admitted to probate. That separate application is necessitated by the fact that a grant of probate ordinarily requires the production of the original Will.
• [3] The original Will cannot be located and only a certified copy of that Will is in the possession of the applicant. In circumstances where the original Will cannot be produced after the death of the testator, a presumption of revocation arises. That is, there is a rebuttable presumption that the deceased destroyed the original of the Will with the intention of revoking it. The strength of that presumption will depend upon the circumstances, and if it is not rebutted an intestacy will result and the deceased estate will be distributed according to the statutory rules on intestacy. This Court has power to find that the presumption has been rebutted, to recognise that the original of the Will has been lost, and to admit a copy of it to probate.
• [4] The onus of rebutting the presumption of revocation is on the person applying to the court for proof of a copy of the original Will. That requires the applicant to establish that it is more likely than not that the deceased did not destroy the Will with the intention of revoking it, and that the original of the document has simply been lost or misplaced: see Cahill v Rhodes [2002] NSWSC 561; Curley v Duff (1985) 2 NSWLR 716; Estate of Manning [2015] NTSC 21; Proud v Proud [2012] WASC 134; Estate of Ponikvar [2016] SASC 95.
• [5] The evidence in this matter, scant though it is, is sufficient to establish that the applicant travelled from her home in Queenstown in Tasmania to Alice Springs to look after her mother prior to her death. The applicant relocated to Tasmania following the death of the deceased. At some time between 10 and 18 November 2024, an envelope containing the original Will and probate forms was lost during the process of relocation. The applicant has conducted exhaustive searches of all her vehicles and property and the original Will and probate documents cannot be located. The applicant has in her possession a copy of the Will. That copy was certified to be a true copy of the original Will by a Commissioner for Oaths who sighted the original Will before it was lost. That certified copy of the Will is available because it was submitted to the Court Registry on 9 August 2024 as part of the original application for probate.
• [6] On the basis of that evidence, I find that it is more likely than not that the deceased did not destroy the original Will with the intention of revoking it, and that the original of the document has simply been lost or misplaced.
• [7] I find that the presumption of revocation has been rebutted and I make the following orders:
  1. The copy of the Will executed on 10 August 2022 and certified as a true copy on 9 October 2024 is proved and admitted to probate.
  2. Probate of the estate of the late Patricia Elsie Norton is granted to Jane Bernadette Miller.
  3. The costs of this application are to be paid out of the estate of Patricia Elsie Norton.

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