In the Estate of FRANCES PONIKVAR (DECEASED)

In the Estate of Frances Ponikvar, the deceased passed away in 2010, leaving behind a complex succession dispute concerning the validity of a will dated 16 February 2007. The primary issue was whether the will was revoked by the deceased before her death, a question that arose because the original will could not be found. Ivan Ponikvar, the applicant, sought to have a copy of the 2007 will admitted to proof as the original had been lost. The case was heard in the Supreme Court of South Australia.

The legal issues before the court included whether the presumption of revocation by destruction applied and, if so, whether it had been rebutted by the applicant. The presumption of revocation arises when a will is lost or destroyed, and it is presumed that the testator intended to revoke it unless evidence to the contrary is provided. The court had to determine if the applicant had provided sufficient evidence to rebut this presumption. The applicant needed to show, on the balance of probabilities, that the missing will was not destroyed by the deceased with the intention of revoking it.

The court found that the presumption of revocation had been rebutted. The applicant provided evidence that a thorough search for the original will had been conducted, including placing advertisements for the missing document. The applicant and others had found other important documents in the deceased’s possession, indicating that the will could have been lost accidentally. Furthermore, the will made a complete disposition of the deceased’s estate, and there was no evidence suggesting the deceased had a reason to destroy the will. The court accepted the applicant's evidence that the deceased had informed him of her testamentary intentions, consistent with the terms of the 2007 will.

In conclusion, the court allowed the application and ordered that a copy of the 2007 will be admitted to proof as the original, with probate granted to Ivan Ponikvar until the original will is found. The court held that the presumption of revocation had been sufficiently rebutted by the applicant’s evidence, allowing for the copy will to be accepted as a true representation of the deceased’s last will.