By Ari Katsoulas, Barrister – akatsoulas@wentworthchambers.com.au | (02) 8915-2006
In Re the Will of Jack McGee (deceased) [2021] QSC 117 Justice Bradley of the Supreme Court of Queensland determined an application to rely on a photocopy of a will for the purposes of obtaining probate.
The deceased testator left a duly attested will dated 18 December 1985. The applicant, who was named as executor of the will, received the original will and placed it in the firm’s security storage. At that time, he made a copy. The original will was eventually lost and unable to be found.
His honour applied Frizzo v Frizzo [2011] QSC 107, Applegarth J, following the decision in Cahill v Rhodes [2002] NSWSC 561, which held that an applicant must establish the following five matters to succeed in admitting a copy of a Will to probate:
(a) that there was actually a Will;
(b) that the Will revoked all previous Wills;
(c) that the applicant overcomes the presumption that a Will, which cannot be produced to the Court, was destroyed by the testator with the intention of revoking it;
(d) that there is evidence of the terms of the Will; and
(e) that the Will was duly executed.
In the circumstances deposed by the applicant, his honour was satisfied in admitting the photocopy of the will to probate until the original Will or more authenticated evidence be brought into and left in the Registry.