1. The law presumes that a will has been destroyed by the deceased with the intention of revoking the will if
a. the will can be traced into the possession of the deceased; and
b. was last seen with the deceased; and
c. is not able to be found upon the death of the deceased.
2. The presumption is rebuttable where the person seeking to prove the existence of the lost will can:-
a. establish facts in addition to those that give rise to the presumption; and
b. satisfy the Court that the proper inference to draw from all the facts is that the deceased did not destroy the will or that the deceased did not destroy the will with the intention of revoking the will.
3. Before the presumption can be rebutted it must be proved that the will once existed and that it was duly executed.
4. Evidence that the deceased did not destroy the will may include:-
a. the nature of the will itself and the unlikelihood of the will maker having a change of attitude to the beneficiary under the will.
b. a reference by the will maker to the continued existence of the will shortly before the will maker’s death.
c. the particular circumstances of the deceased for example, the presumption was rebutted where a quadriplegic patient who was confined to hospital and unable to write made a will by making his mark. On his death four (4) years later the will which had been left with him could not be found. The Court found he was physically incapable of destroying the will himself.
5. Evidence that the deceased did not destroy the will with the intention of revoking the will may take the following forms:
a. where the will made a careful and full disposition of the will makers property and there were no other circumstances to point to probable destruction with the intention to revoke the will by the will maker.
b. where there is no proof of insanity
c. by evidence tending to show that the will was destroyed in circumstances indicating a mistake.
6. If the presumption is rebutted other evidence is admissible to establish the contents of the missing will. That other evidence may take the form of a draft or carbon copy of the lost document. In some circumstances the missing will has been reconstructed entirely from memory.
7. The will makers written or oral declarations made before the execution of the will may in some circumstances be admitted to prove the contents of the missing will.
Please call on 8268 4000 if you wish to discuss any matter concerning wills or estates.