Frizzo v Frizzo

(a) the application for probate was advertised;

(b) the persons who might be interested in the grant of probate appear limited and have indicated they support the application;

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

(d) there is evidence of the steps taken to find the 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 that respect, the Will has the deceased's signature and that of two witnesses. The two witnesses are the sister of the deceased and her husband. The evidence is that the will was prepared by the sister (not a lawyer - but someone who said she had prepared wills before) after a family lunch during which the topic of wills was discussed and the deceased disclosed he did not have a will. There is an affidavit from the sister who witnessed the Will affirming the signing of the Will.
• [6] The Will cannot be found despite searches [requirement (d)]. The Will was thought to have originally been placed in the deceased's office with other important documents, and the applicant had believed that the original will was taken into safe keeping by a lawyer when that lawyer did other work for the deceased about a power of attorney in January 2019. At that time the lawyer reviewed the deceased's will. However, the lawyer does not hold the Will and searches for the original will have not been productive. Only a copy of the Will has been located where it is thought the original was kept.
• [7] A search of the deceased's effects, the home and enquiries of the deceased's family have not uncovered the original Will.
• [8] The deceased is not known to have consulted with any other lawyers.
• [9] 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.
• [10] 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)].[2] In this case I consider that presumption rebutted in circumstances where the deceased would have been expected to consult with his lawyers in January 2019 had he wished to make a new will, and there is evidence that the Will represented the deceased's testamentary wishes as he had expressed them.
• [11] An order will be made in the terms identified on the first page.

[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] Re Warren (deceased) [2014] QSC 101 at [11].