Can someone still apply for a Grant of Probate?

Whilst the simple answer is yes, it is rarely straight forward.

Items, even formal documents such as Wills can easily get misplaced or lost;

A recent decision regarding the granting of a Probate of a copy of a Will is In the Will of Gregory Thomas Barnes [2014] QSC 66.

The Facts of this case:

The deceased drafted a legal will dated 25 February 1991, naming the deceased’s elder brother as the executor.  The deceased passed away on 18 April 2013.

The deceased formally executed his will in 1991, revoked all former wills and left his estate in equal shares to his 3 brothers.

The original will could not be located when the deceased died.

The deceased’s partner lodged a caveat for the probate to be requisitioned.

The deceased’s partner of 10 years stated that the deceased had revoked the will due to the deteriorating relationship between the deceased and his brothers. Evidence was also produced to show the deceased had enquired into making a new will before his death.

The Decision:

The critical issue for the Chief Justice’s decision was whether the presumption that the original will had destroyed by the deceased had been rebutted.

Whilst the copy of the will made careful and complete dispositions of the deceased’s estate, the question whether there had been a serious breakdown in the relationship between the brothers and the deceased, as alleged by the deceased’s partner, to prompt the deceased to cut his brothers out of his estate.

There was evidence to suggest the deceased was upset that the brothers did not attend his 50th birthday celebration however they have continued to communicate amicably.

Shortly before his death, the deceased had been considering making some provision for his partner but never got around to making any changes to his Will.

Other considerations taken into account by the Chief Justice were conversations that the deceased had with his sister-in-law and brother in which the deceased confirmed his will was all sorted with everything filed together and consistent with the 1991 Will, that his eldest brother was the executor of the estate.

The Chief Justice decision was to grant probate to the deceased’s elder brother and the cost of the application is to be paid from the estate.

This case emphasises the importance of not only keeping your original Will in a safe place and informing your Executor/s of the whereabouts of your Original Will but also if you are going to make a new Will, you must execute it promptly and correctly to revoke all previous Wills.

About the Author

Jenna Hutchinson is a Wills & Estates Associate at Turner Freeman Lawyers who specialises in:

*  Preparing Wills
*  Estate Administration
*  Powers of Attorney and AHD
*  Estate Litigation and Will Disputes.

Jenna is an expert in achieving the best outcome for her clients if they have been unfairly left out of a Will. She is also experienced in defending the Estate against and has successfully run an array of complex claims.