Stephens & Tozer recently applied to the Supreme Court for probate of an unsigned copy of a Will.
The procedure involves an initiating application with affidavit evidence to be filed together with the usual application for probate. The probate application is filed in the registry before the initiating application to ensure that the less expensive filing fee is incurred.
The matters to be considered by the Judge in deciding such an application are as follows:
- whether there was a Will;
- that the document revoked all previous Wills;
- the presumption that, if a Will last traced to the possession of the deceased cannot be found, it was destroyed by the deceased with the intention of revoking it;
- the terms of the Will;
- whether the Will was duly executed.
In this case the document was an unsigned copy of the Will which was handed to the deceased by his former solicitor. Stephens & Tozer were able to prove that the unsigned document was identical to the missing Will.
The deceased kept the unsigned copy in an attaché case amongst his important documents. These documents included an unsigned copy of his wife’s Will, an original enduring power of attorney, confirmation of registration of his wife’s prior death, his original bank account passbooks, his original passport, his original electoral roll papers, and a copy of a title deed.
The unsigned copy of the Will was admitted to probate to enable the executors to administer the estate in accordance with the deceased’s wishes. The appropriate order was that (subject to the formal requirements of the registrar) a grant of probate be made of the unsigned copy of the Will to the executors limited in effect until the original Will or more authentic copy is proved.
Greg McKinnon is a commercial and litigation lawyer with years of experience in major commercial service areas. Known for his strong strategic perspective, Greg’s advice has proven invaluable to clients wishing to actualise their long-term objectives. Stephens & Tozer regularly provide creative solutions to a wide range of probate and estate problems. If you have a query or require assistance please contact our Associate Solicitor Mr Greg McKinnon on (07) 3034 3888.
5 February 2018