Cahill v Rhodes

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.