In the will of

The case involves the application for the grant of probate of a lost will in the estate of Gregory Thomas Barnes, who passed away from lung cancer. Peter Roderick Barnes, one of the deceased's brothers, applied for probate of a copy of the deceased's will, dated 25 February 1991, which left the estate in equal shares to the deceased's brothers. The respondent, the de facto partner of the deceased for the preceding 10 years, opposed the application, claiming that the will had been revoked by the deceased. The respondent argued that the relationships between the deceased and his brothers had deteriorated and that the evidence indicated the deceased was interested in making a new will before his death. Given that the original will could not be located, there was a rebuttable presumption of revocation of will. The court had to decide whether the deceased had intended to die intestate, whether the deceased had reason to revoke his will by intentionally destroying it, and whether the presumption of revocation of the will was rebutted.

The court held that the presumption of revocation was not rebutted. The evidence showed that the deceased had not acted inconsistently with the existence of the will, and the respondent had not demonstrated that the deceased had taken positive action to revoke the will. The court found that the respondent had not discharged the onus of proving revocation of the will, and therefore, the presumption of revocation was not rebutted. The court noted that the deceased had not taken any steps to make a new will, and there was no evidence to suggest that the deceased had intentionally destroyed the original will. The court held that the applicant had satisfied the court that the copy of the will was a true copy of the original will, and therefore, the grant of probate should be made to the applicant.

The court made a grant of probate to Peter Roderick Barnes of the copy will of Gregory Thomas Barnes, dated 25 February 1991, subject to the formal requirements of the Registrar. The court also ordered that the applicant's costs of and incidental to this application be paid from the estate of the deceased on the indemnity basis.