HAVE YOU LOST YOUR WILL?

There was a recent interesting case heard in the Supreme Court of Western Australia: Larussa v Carr (as Administratrix of the Estate of Giuseppe Larussa) [2016] WASC 332 (Larussa case) related to a lost Will and whether it has been deliberately destroyed or in fact had been lost. This case shows the importance of why you should keep your Will in a safe place and inform the executor or executors of its location.

To obtain Probate of a lost Will, Young J in Curley v Duff (1985) 2 NSWLR 716 observed that there are 5 matters that must be established by the person trying to prove the lost Will. They are:

1. it must be established there actually was a Will;
2. it must be shown that the Will revoked all previous Wills;
3. the person trying to prove the Will must overcome the presumption that when a Will is lost it has been destroyed by the maker of the Will with the intention of revoking it;
4. there must be evidence of its terms; and
5. there must be evidence of its due execution.

In relation to point 3 above, there is a presumption that if a Will is in fact lost, the maker of the Will intended for it to be revoked. This presumption was explained by EM Heenan J in Powell v Dinwoodie [2012] WASC 139 (Powell case). In the Powell case, his Honour stated:

As in any case of an attempt to prove a lost Will, it is necessary to consider the possibility that the Will may have been lost because of deliberate destruction by the deceased or by another person at his direction and in his presence with the intention that the testament should be revoked – Wills Act 1970 (WA) section 15(c). The law has long recognised a presumption that a Will which is shown to have been in the possession of the testator but which cannot be found after his death has been destroyed animo revocandi and hence revoked – Welch v Phillips (1836) 1 Moo PC 302; 12 ER 824 and McCauley v McCauley (1910) 10 CLR 434.

Although the presumption exists, it may be rebutted by:

1. evidence that the Will simply went missing or was lost, as opposed to having been destroyed with the necessary intention; or
2. by evidence that the maker of the Will lacked the necessary capacity to revoke the will by destroying it.

In the Larussa case, the deceased left behind an estranged wife, a daughter and a son. The relationship between the siblings had been tumultuous for a number of years. The son contended that the deceased signed a Will in 1991 (1991 Will); however, he believed that this Will was now missing. By the time the case was heard, the daughter had already applied for a Grant of Letters of Administration, noting that the deceased had died intestate.

If the son could prove that the 1991 Will still applied, albeit that it had been lost, then 3 shares of the estate would go to him and 1 share would go to the daughter. On the other hand, if the deceased had died intestate, then the estate would be shared between the deceased’s estranged wife and his two children.

Having heard the evidence of all parties, his Honour concluded that the evidence provided by the son was unreliable and that his conduct was inconsistent with the belief that the 1991 Will was in existence. In particular, a draft affidavit for a joint application for Letters of Administration, deposed that ‘[t]he deceased died intestate’ and that ‘[w]e have made careful search and enquiry to ascertain whether there is a Will of the deceased and to the best of our knowledge information and belief there is no such will that can be located’. The terms of that affidavit suggested that the son had not instructed his solicitors that the deceased had died leaving a Will which could not subsequently be located.

This case illustrates that if you lose the original signed copy of your Will, problems are likely to happen later. On the other hand, if you deliberately choose to destroy your Will, it is best either to prepare a new Will revoking your previous Will or to inform someone that you have destroyed your Will and do not intend to make a new one. Retaining your past Wills even if you have revoked all but the last one and ensuring that all of them are stored in a safe location (for example, with your solicitor) remains the best way to avoid subsequent misunderstandings from arising.

If you would like to prepare a new Will, please contact Kimi Shah on 08 6166 9000 or kimi@ryandurey.com.