Cahill v Rhodes

(a) the application for probate was advertised;

(b) the persons who might be interested in the grant of probate appear limited;

(c) there is no evidence that suggests that the estate is complex;

(d) there is evidence of the steps taken to find the original Will;

(e) the application does not raise any novel questions of law.

• [3] There are five matters that must be established for the admission to probate of a copy of the Will:

(a) that the original Will existed;

(b) that the original Will was duly executed;

(c) the terms of the original Will and that it revoked all previous wills;

(d) that proper searches have been made for the original Will; and

(e) that any presumption of revocation of the original Will is rebutted.[1]

• [4] In this case the existence of the Will [requirement (a)] and the terms of the Will and that it revoked all previous wills [requirement (c)] are proved by the copy of the Will.
• [5] The due execution of the Will [requirement (b)] can be presumed because the copy of the Will has an attestation clause and appears to have been duly executed in circumstances where one would expect the formalities to be observed.[2] In that respect, the Will has the deceased's signature and that of two witnesses. The two witnesses are a clerk at the law firm (Hoad & Bonello) that it can be inferred prepared the Will and another person whose handwriting is very difficult to decipher but may be Bonello (of the law firm). It seems likely then that the Will was executed at the premises of the law firm. There is no affidavit from either of the witnesses to the Will affirming the signing of the Will, but that can be excused in the circumstances just mentioned and given the age of the Will.
• [6] The Will cannot be found despite searches [requirement (d)]. The evidence does not disclose how or where the copy of the Will was located. In terms of the original Will, the solicitor who prepared the codicil in 2023 recalls sighting the original Will and taking a photocopy of same at that time. The original Will was not provided to him for safe keeping. A search of the deceased's personal property did not locate the original Will. Inquiries of the deceased's bank have not uncovered the Will.
• [7] As above, it is known that the deceased consulted with her solicitor in 2023 in relation to making the codicil - the original of which is available. It assumes the existence of the Will.
• [8] The Will has not been able to be located. It is likely it has been accidentally lost. Proper enquiries to locate the Will have been made.
• [9] If a Will is last traced to the possession of the testator, and that Will cannot be found, a presumption arises that it was destroyed by the testator with intention of revoking it [requirement (e)].[3] In this case I consider that presumption rebutted in circumstances where the deceased would have been expected to consult with her solicitor had she wished to make a new will, in circumstances where a codicil to the Will had only been prepared in 2023.
• [10] An order will be made in the terms identified on the first page. No order as to costs was sought or is made.

[1] See Frizzo v Frizzo [2011] QSC 107 at [161] where Applegarth J followed the New South Wales decision of Cahill v Rhodes [2002] NSWSC 561 at [55].

[2] See Kay v Fisher [2009] WASC 193 at [45].

[3] In the Will of Leonie Lyle Warren deceased [2014] QSC 101 at [11].