The court considered five key matters in granting the probate
The Queensland Supreme Court granted probate of a will despite the applicant losing the original will.
Applicant Virgenia May Gray collected the will of Steven Bruce Gray from John Woulfe Solicitors. Steven Bruce made the will on 5 April 2004, and after he passed in 2022, Virgenia May, his wife, undertook the task of attending to various post-death requirements.
Virgenia May collected the original will from the solicitors' safe custody, intending to use it for dealings with her accountant and Centrelink. However, when the solicitors requested to return the original will for the probate application, she could not locate it despite her best efforts, prompting a thorough search of her records and documents at home.
The Queensland Supreme Court noted two significant depositions. Firstly, Virgenia May’s attempt to locate the will at Ashmore Plaza Newsagency proved futile. Secondly, Riaz Ahmed Shah, who represented the solicitors' firm, swore affidavits confirming the original will's custody until it was collected by Virgenia May.
The court explained the legal principles governing the granting of probate in cases of lost wills and considered five key matters, all of which the court found to be satisfactorily established. These factors were:
- that there was a will;
- that the will revoked all previous wills;
- an overcoming of the presumption that when a will is not produced, it has been destroyed;
- there must be evidence of the will's terms; and
- there must be evidence of the will's execution.
The court concluded that there indeed was a valid will, that it had revoked all previous wills, that the applicant overcame the presumption of destruction of the will, that there was evidence of the will's terms through a certified copy, and that there was evidence of proper execution.
Despite losing the original will, the court accepted the explanation for its disappearance after Steven Bruce’s death. The court emphasised that the standard of proof required was that of the ordinary civil standard and acknowledged that the photocopy of the certified copy of the will effectively provided evidence of both its terms and proper execution.
In light of these findings, the Queensland Supreme Court made an order granting probate of Steven Bruce’s will. However, this grant was limited until the original will or more authenticated evidence is brought and left in the court's registry, subject to the formal requirements of the registrar.
