Eastwood (In Their Capacity as Executors Named in the Last Will and Testament of the Late Mary Eastwood) and Anor (In His Capacity as a Beneficiary Named in the Last Will and Testament of the Late Mary Eastwood) v Richards and Ors. (Approved)

Factual and Procedural Background

This is an ex tempore judgment of Judge Quinn delivered 6 February 2026 in a probate action concerning the estate of the Deceased, who died on 12 December 2018. The Deceased executed a will dated 29 November 2016 appointing two of her children (hereinafter the Plaintiffs) as executors. The original will was prepared and retained by Company A. By letter dated 10 January 2018 the Deceased requested copies of documents held by Company A. A few days later an envelope was received at the Deceased's home containing copies of the will and an Enduring Power of Attorney. After the Deceased's death the original will could not be located in Company A's offices or at the Deceased's home. Company A's file contained a computer copy of a letter dated 18 January 2018 stating that the original will and original Enduring Power of Attorney were sent by ordinary pre-paid post to the Deceased. The Plaintiffs applied to admit the will to probate; the Defendants opposed admission inter alia on the basis of the presumption of revocation.

Legal Issues Presented

1. Whether, on the balance of probabilities, the original will left Company A's custody and came into the possession of the Deceased.
2. If the original will did come into the Deceased's possession and subsequently could not be found after death, whether the presumption of revocation arises.

Arguments of the Parties

Plaintiffs' Arguments

• The Plaintiffs (as executors seeking to propound the will) bore the evidential onus and contended that, on the balance of probabilities, the original will was never sent from Company A and therefore never came into the Deceased's possession.
• Counsel for the Plaintiffs invited the court to decide that question on the evidence heard without further testimony, to avoid unnecessary costs.

Defendants' Arguments

• The Defendants argued that the copy letter dated 18 January 2018 on Company A's file together with Company A's correspondence and affidavit indicated that the original will was probably posted to the Deceased and, because the original could not be found after death, the presumption of revocation should arise, resulting in intestacy.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Quinn proceeded on the basis that the evidential burden lay on the Plaintiffs as the parties propounding the will. The court considered the undisputed facts (no one saw the originals after execution; copies were received at the Deceased's home; no one heard the Deceased refer to possession or intent to revoke) together with the evidence of Attorney Lawlor and other witness evidence.

The court analysed the file letter dated 18 January 2018 that purported to enclose the originals but weighed that document against multiple factors: Company A's practice that originals would be made available for collection or sent by registered post (not ordinary pre‑paid post); Attorney Lawlor's concessions that sending originals by ordinary post would be irregular; absence of an entry in the wills register showing permanent removal of the originals; Attorney Lawlor's lack of recollection as to who handled the task and inability to vouch posting; and the absence of the originals from both the firm's safe and the Deceased's home.

The court found the objective evidence of office practice, the attorney's admissions, and the absence of posting records overwhelmingly contradicted the assertion that originals were sent. The court also noted it made little sense that originals would be sent when copies had been requested and received, and that the Deceased had no apparent reason to destroy the Enduring Power of Attorney. On that basis the court concluded, on the balance of probabilities, that the original will was not posted and did not come into the Deceased's possession.

Holding and Implications

Holding: The court held that, on the balance of probabilities, the original will was not sent to the Deceased and did not come into her possession; accordingly, the presumption of revocation does not arise.

Implications: The direct effect is that the presumption of revocation will not defeat the Plaintiffs' application to propound the will. The court indicated it would hear the parties on consequential orders; the opinion does not purport to establish any broader novel precedent beyond the application of established principles to the facts.