Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 10 October 2015.
When Jill was widowed several years before her death, her daughter moved in with her and took on the role as Jill’s carer.
In recognition of her daughter’s efforts, Jill made a will leaving two thirds of her home to her daughter and one third to her son. She left the rest of her estate to both of her children equally.
When Jill passed away, some 15 years ago, her children distributed her estate amongst themselves without the need for obtaining a grant of probate.
A grant of probate is an order made by the Supreme Court of New South Wales essentially “proving the will” and formally recognising an executor’s authority to administer an estate. A grant of probate is necessary to register a change in land ownership from a deceased person to the beneficiaries and is often required by banks if they hold significant funds on behalf of a deceased person.
Jill’s daughter, now wishes to sell the property that she has been living in since Jill’s death and is advised by her solicitor that the property is still registered in her late mother’s name.
The solicitor contacts Jill’s previous solicitor and discovers that Jill’s will had been removed from safe custody some 15 years ago and retained in an administration file which has since been destroyed.
Jill’s daughter is concerned that without being able to locate Jill’s original will, she will be unable to obtain a grant of probate and furthermore, she may only be entitled to a half interest in the house, under the “rules of intestacy”.
The solicitor makes a rare application to the Supreme Court, seeking probate over the lost will. Jill’s children both make affidavits, stating that their mother did in fact execute a will and stating their recollection of the will’s contents. They also give evidence as to the circumstances in which the will was destroyed.
Importantly, there was also evidence that the lost will had been prepared by a solicitor and duly executed by Jill.
In circumstances where Jill’s son did not oppose the application, the court makes the unusual order of granting probate based on memory of the content of a lost will.
