Lemon v Lemon & Anor  QSC 123: A new precedent for admitting a copy of a Will to Probate
I have previously written about what can be done if only a copy of a Will can be located. A new decision has been handed down recently which provides further guidance as to the circumstances in which a copy of a Will may be used to obtain a Grant of Probate.
The background to this case is as follows:
- Mrs EB passed away in October 2012. She had predeceased her late husband, Mr RB;
- Their daughter, Ms SL, applied for probate in solemn form of a photocopy of Mrs EB’s last Will;
- Despite her best efforts to find the original Will, no one in the family had seen the original for over 10 years;
- In the last years of his life, Mr RB moved in with Ms SL and showed a tendency to throw away large volumes of documents, photographs and sentimental items. He has also shown these tendencies when he resided with Mrs EB.
What the Court considered
When deciding whether or not a copy of a Will can be admitted to Probate, the Court will consider the following:
- Was there actually a Will or a document which evidenced the deceased’s intentions?
- Did the Will revoke all previous Wills?
- Is there evidence to suggest that the Will has been destroyed to revoke it?
- Is there evidence of the terms of the Will?
- Is there evidence that the Will was executed?
What did the Judge decide?
- The primary concern in this case was whether the Will was destroyed in an attempt to revoke it.
- The Judge considered the evidence of Mr RB’s tendencies to dispose of documents and possessions, and found it probable that he had inadvertently destroyed it.
- The Judge also noted that there was no evidence that Mrs EB had made another Will, or given the original Will to anyone else for safe keeping.
- The Judge also found that the terms of the copy Will were clear, comprehensive and unsurprising, in light of Mrs EB’s family circumstances.
- The Judge ordered that the copy Will be admitted to Probate, limited until the original Will or more authenticated evidence of it is brought into and left in the Registry.
I only have a copy of a Will – what should I do?
If the original Will cannot be located, there may be difficulties in administering the Estate. This is why I always ensure that after preparing Wills for clients, I keep the originals in safe custody at my office, to minimise the risk of these important documents being lost or destroyed.
If you are listed as the Executor of a friend or family member’s Will, and only a copy of the Will can be found after the person passes away, you should obtain the advice of an experienced Estate administration lawyer. Please do not hesitate to contact me should you require assistance.