Re Last (deceased)

This case involved an application for the grant of probate for a copy of the will of Herbert Henry Last, who passed away on 20 September 2024. Herbert had executed a will on 13 May 2016, naming his son Malcolm John Last, along with the principal of the solicitors who held the will, ACS Legal Solutions, as joint trustee and executor of his estate. The original will was retained by ACS Legal Solutions until Herbert collected it in February 2019. Herbert provided a copy of the will to Malcolm in May 2023, but the original could not be located after Herbert’s death. The primary legal issue was whether the presumption of revocation could be rebutted and if probate should be granted on the copy will.

The court considered the relevant principles governing the grant of probate for a copy of a will. While there is no statutory authority for such a grant, the court has common law jurisdiction to do so. In Frizzo v Frizzo, Applegarth J outlined five factors that must be established for a successful application for the admission of a copy will to probate: (a) the existence of a will or a document embodying testamentary intentions; (b) the revocation of all previous wills; (c) overcoming the presumption that if the will cannot be produced, it was destroyed with the intention of revoking it; (d) evidence of the terms of the will; and (e) proof of the will’s execution or the deceased's intention for the document to constitute their will. The court determined that the circumstances did not render it inappropriate to decide the matter without an oral hearing and proceeded to consider whether the applicants had rebutted the presumption of revocation.

Based on the evidence presented, the court found that the presumption of revocation had been rebutted. The copy will provided by Malcolm aligned with Herbert’s testamentary intentions discussed in May 2023, and there was no indication that Herbert intended to revoke the will before his death. Therefore, the court granted probate of the copy will to Malcolm John Last, Melissa Jane Buchanan, and Jocelynne Naomi Berry as executors, pending the location of the original will or more authenticated evidence.

Pursuant to rule 489(1) of the Uniform Civil Procedure Rules 1999, the application proceeded without an oral hearing. The court granted a grant of probate of the copy of Herbert Henry Last’s will dated 13 May 2016, subject to the formal requirements of the Registrar, to Malcolm John Last, Melissa Jane Buchanan, and Jocelynne Naomi Berry as executors until the original will or more authenticated evidence is produced.