Estate of Eastwood, Application of Eastwood (Approved)

Factual and Procedural Background

The deceased, an elderly individual residing at a family home in The City, passed away in late 2018. She was survived by five children, including the Applicant and several Notice Parties. The deceased had executed a will in late 2016, appointing two of her children as executors. However, after her death, the original will could not be located. The Applicant filed an application seeking permission to prove the will by way of a copy. This application was opposed by three of the siblings.

The deceased’s solicitor had prepared and executed the will in his office in the presence of a trainee solicitor. The original will was initially retained by the solicitor. Following the deceased’s death, correspondence from the solicitor indicated that the original will had been sent to the deceased’s home in early 2018, but the will was never found there despite searches by the Applicant.

There was conflicting evidence about the management and receipt of post at the family home, including who had access to and opened mail. The family had longstanding interpersonal disputes, including disagreements about the will’s terms and the management of family properties.

The application was brought before the High Court on a non-contentious probate list but was contested, and the court considered whether the matter could be decided on affidavit evidence alone or required oral evidence.

Legal Issues Presented

1. Whether the court could determine the application to admit a copy of the will on affidavit evidence alone or whether oral evidence was necessary.
2. Whether the presumption of revocation of the original will arose due to its non-production and the surrounding circumstances.
3. The allocation of the burden of proof regarding the possession and destruction of the original will.

Arguments of the Parties

Applicant's Arguments

• The onus is on the opposing parties to prove that the deceased came into possession of the original will, which they have failed to do.
• The letter from the solicitor’s office indicating the sending of the original will to the deceased was erroneous and does not establish that the will was actually posted.
• The presumption of revocation does not apply unless the will can be traced into the possession of the deceased.
• The application should be determined on the basis of affidavit evidence without the need for a plenary hearing.

Notice Parties' Arguments

• They oppose the application to prove the will by copy, challenging the circumstances of its loss and the will’s validity.
• They assert the deceased suffered from dementia at the time the will was made and may have revoked it.
• They contest the Applicant’s account of the handling of the post and the circumstances surrounding the will’s disappearance.
• They seek the opportunity to cross-examine the solicitor regarding the letter and the handling of the original will.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court first considered whether the application could be decided on affidavit evidence alone. Citing relevant authorities, it noted that while the Monday probate list is designed for non-contentious matters, contested factual disputes—such as those present here—may require oral evidence. The Court found that the evidence before it contained significant factual conflicts, particularly regarding the handling of post at the family home and the whereabouts and custody of the original will.

The Court outlined the well-established legal presumption that if a will last known to be in the possession of the deceased cannot be found after death, it is presumed destroyed with the intention of revocation unless rebutted by sufficient evidence. However, this presumption only arises if the will can be traced into the deceased’s possession. The Court accepted that the absence of the original will and uncertainty about whether it was ever in the deceased’s possession complicated the application of this presumption.

The Court examined the solicitor's evidence and correspondence, particularly a letter indicating the original will was posted to the deceased. The Court found this letter was not satisfactorily explained and its contents inconsistent with the solicitor’s own stated office procedures. The Court was not prepared to assume the original will was sent without cross-examination of the solicitor.

There was also conflicting evidence about who managed and opened the post at the family home, which was critical to determining whether the original will came into the deceased’s possession. The Court found these factual issues could not be resolved on affidavit evidence alone.

Accordingly, the Court concluded that the onus remains on the applicant to prove that the will was not destroyed with intent to revoke and that the factual disputes necessitated oral evidence to resolve the matter properly. The Court also noted that while the possibility of a challenge to testamentary capacity was raised, it was agreed by counsel to be excluded from consideration on this application.

Holding and Implications

The Court’s final decision was to order that the application could not be determined on affidavit evidence alone and that oral evidence was necessary to resolve the contested factual issues.

The application was not disposed of at this stage and was listed for further directions and submissions in two weeks.

The direct effect of this decision is that the Applicant’s request to prove the will by copy is deferred pending further evidence. No new legal precedent was established; rather, the Court reaffirmed established principles regarding the presumption of revocation and the procedural appropriateness of the Monday probate list for contested matters.