Back v Bamberry

The case of Back v Bamberry involved a dispute over the probate of a will, with Gregory William Back applying for probate of a will that had been prepared by the deceased, Michael Kennith Heggie, but which had been altered after preparation. The deceased’s sisters lodged a caveat requiring proof of the will in solemn form. The central issue was whether the will had been revoked or altered in a manner that rendered it invalid for probate. Specifically, the court had to determine if the obliteration of the beneficiary’s name constituted a revocation or alteration under the Succession Act 1981 (Qld).

The court considered whether the will had been revoked in part by the obliteration of the beneficiary’s name, as per section 13 of the Succession Act 1981 (Qld). It also needed to assess if the will had been altered by the obliteration of the beneficiary’s name, in accordance with section 16 of the same Act. The court examined the will’s language and the circumstances surrounding its preparation and alteration. Despite the obliteration, the phrase "I leave my entire estate to my friend Back" remained legible, and the court found that this phrase referred to the applicant, Gregory William Back. The court concluded that the will had not been revoked or altered in a manner that precluded it from being admitted to probate.

Following its reasoning, the court made orders admitting the will to probate in common form, with Clause 4 construed to refer to Gregory William Back. The court also ruled on the costs, determining that they should be assessed on an indemnity basis and paid out of the estate. This decision clarified the conditions under which alterations to a will might affect its validity and the extent to which extrinsic evidence can be used in construing testamentary dispositions.