The Estate of Smith

The matter before the court was an application for review of a Registrar’s decision declining to grant probate of a copy of the will of the deceased, Smith. The application was made by the solicitor who prepared the will, as no original will could be found. The deceased’s estate was in danger of devolution under intestacy, which would have the same effect as the will. The court was required to determine whether the presumption of revocation by destruction of the original will could be rebutted.

The legal issues that the court needed to decide were whether the presumption of revocation by destruction of the original will could be rebutted and if so, whether the copy of the will should be admitted to probate. The court considered the careful and complete disposition of the testator’s property in the will, the fact that the solicitor who prepared it held other original documents executed by the deceased, and that no other will could be found. The court also considered that revocation of the will would have no effect on who would take the estate, as it would devolve on intestacy as it does under the will.

The court found that the presumption of revocation by destruction was rebutted. The careful and complete disposition of the testator’s property in the will, along with the other original documents executed by the deceased held by the solicitor, were sufficient to rebut the presumption. The court held that the copy of the will should be admitted to probate as it would have the same effect as the original will. The court concluded that the revocation would have no effect on who would take the estate, as it would devolve on intestacy as it does under the will. The court granted the application for review and admitted the copy of the will to probate.