Re Smith (deceased)

The case of Re Smith (deceased) involved an application by Gary Warwick Smith, who sought a grant of probate for a copy of the deceased's will, as the original could not be located. The applicant, Gary, was the named executor in the copy of the will, which was dated 28 June 2002. Other interested parties included Ross Graham Smith and Lyndal Ann Jenkins, who supported the application. The primary issue before the court was whether the applicant could rebut the presumption that the deceased, Glenda Lorraine Smith, had destroyed the original will with the intention to revoke it, thereby allowing the copy to be admitted to probate.

The court considered the legal principles established in Frizzo v Frizzo, which outlined five factors necessary for the successful application for the admission to probate of a copy of a will. These factors included the existence of a will or document embodying the deceased's testamentary intentions, the revocation of all previous wills, overcoming the presumption of destruction with intent to revoke, evidence of the will's terms, and proof of due execution or the deceased's intention for the document to be their will. Given the support from the other interested parties and the lack of need for an oral hearing, the court determined that the application could proceed without one.

In its reasoning, the court found that the circumstances surrounding the application did not necessitate a hearing and that the principles governing the grant of probate of a copy of a will were well established. The court concluded that it was appropriate to decide the application without an oral hearing and granted the application for probate with a copy of the will. The court also reserved the right to make the same grant to Ross Graham Smith and Lyndal Ann Jenkins when they should apply for it personally. Finally, the court ordered that the costs of the applicant be paid from the deceased's estate on the indemnity basis.