Re Ambrose

A solicitor and executor of the late Ivy May Ambrose's will, Stephen Kenneth Hartwell, applied to the Queensland Supreme Court for the admission to probate of a photocopy of the deceased's will. The original will had been lost after the testator's death. Hartwell submitted that the will should be admitted to probate, as it was a true and accurate copy of the original. The court was required to determine whether the presumption of the destruction and revocation of the will by the testator arose, and if so, whether it could be rebutted by evidence that the will was lost through no fault of the testator or her representatives. The court was also required to decide whether probate should be granted of the copy of the will.

The court noted that the presumption of destruction and revocation of the will by the testator arises when the original will is not produced. However, this presumption could be rebutted if the applicant could demonstrate that the will was lost or destroyed through no fault of the testator or their representatives. The court found that the applicant had satisfied this burden of proof by providing evidence that the will was lost through no fault of the testator or her representatives. The court also found that the copy of the will was a true and accurate copy of the original. The court therefore granted the application and admitted the photocopy of the will to probate until the original will or more authenticated evidence was produced.

The court ordered that the application proceed without an oral hearing, that the time for filing and hearing the application be abridged, and that the photocopy of the will be admitted to probate until the original will or more authenticated evidence was brought into and left in the Registry. The court's decision provides guidance on the circumstances in which a lost will may be admitted to probate in Queensland, and the standard of proof required to rebut the presumption of destruction and revocation by the testator.