J R Wilson; K Sainsbury (for Cahill) R Winfield (for Rhodes)
SOLICITORS:
Willis & Bowring (for Cahill) Stephen Marks (for Rhodes)
CATCHWORDS:
SUCCESSION - WILLS PROBATE AND ADMINISTRATION - probate and Letters of Administration - requirement for probate of a lost Will - effect of section 18A Wills, Probate and Administration Act 1898 on those requirements - evidence for probate of lost Will - presumption of destruction with intention of revocation if Will not found on Testator's death - manner of operation of presumption - payment of costs in probate suits
Deceased died intestate; Grant of Letters of Administration of his intestate estate to Deceased's mother
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST
CAMPBELL J
10 JULY 2002
103878/01 ROBYN DENISE CAHILL v LEE-ANNE MICHELLE RHODES 105651/01 LEE-ANNE MICHELLE RHODES v ROBYN DENISE CAHILL
JUDGMENT
1 HIS HONOUR: Daniel John Cahill ("the Deceased") died on 11 April 2001, aged 24 years. On 20 August 1997, he had made a Will in which he left the whole of his estate to Lee-Anne Michelle Rhodes ("Miss Rhodes"), who at that time he was intending to marry. The question for decision in this case is whether that Will was ever replaced by another Will, and, if so, whether that replacement Will continued on unrevoked until the time of the Deceased's death.
2 The Deceased's mother, Robyn Denise Cahill ("Mrs Cahill"), contends that the Deceased executed a Will in August 1999, which made her the sole beneficiary, but that that Will has been lost. In proceedings 103878 of 2001, Mrs Cahill seeks probate of this lost Will, or alternatively a grant of administration of the estate of the Deceased if he had died intestate. Miss Rhodes seeks probate of the Will made on 20 August 1997, in proceedings 105651 of 2001. Those two sets of proceedings have been heard together.
The Relationship Between the Deceased and Miss Rhodes
3 The Deceased and Miss Rhodes met in 1995. They commenced a sexual relationship soon after. In June 1997 the Deceased enlisted in the Army. After training, he was allotted duties in the Q Store. On 20 August 1997 the Deceased executed a Will, at Kapooka, the relevant features of which are
· it stated it was made in contemplation of his marriage…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Cahill v Rhodes [2002] NSWSC 561
Case
[2002] NSWSC 561
Decision Date
CaseChat Overview and Summary
The case of Cahill v Rhodes involved the dispute over the validity and probate of a lost will of a deceased person. The matter was heard in the Supreme Court of Queensland, where the plaintiff, Cahill, sought to have a will admitted to probate despite it being lost. The defendants, Rhodes, opposed the granting of probate on the grounds that the will had not been produced and was presumed to have been destroyed with an intention to revoke it. The central issue before the court was whether the lost will could still be admitted to probate under the circumstances and, if so, what evidence would be required to satisfy the court of its contents and validity.
The court had to determine whether the statutory presumption under section 18A of the Wills, Probate and Administration Act 1898, which presumes that a lost will has been destroyed with an intention to revoke it, could be rebutted by the evidence presented by Cahill. The court examined the circumstances under which the will was lost, the efforts made to locate it, and the nature of the evidence provided to reconstruct the will's contents. The court considered whether the evidence was sufficient to discharge the onus on Cahill to prove the contents of the lost will and whether the statutory presumption could be overcome by such evidence.
In reaching its decision, the court found that the statutory presumption under section 18A could be rebutted if the party seeking probate could provide substantial evidence to establish the contents of the lost will. The court held that the presumption was not an absolute bar to probate but rather a rebuttable presumption that could be overcome by appropriate evidence. The court emphasised the importance of the onus of proof being on the party seeking probate to establish the will's contents. The court accepted the evidence presented by Cahill as sufficient to rebut the presumption, and thus, the will was admitted to probate. The court also addressed the issue of costs, ruling that the defendants would be liable for the costs of the suit.