Background
Janelle Barbara Burke executed a Will on 13 December 1994 with her husband Malcolm Thomas Burke, both then residing in Bowral, New South Wales, with assistance from solicitors Wilkinson, Throsby & Edwards. The original Will was retained by the solicitors. In June 2006, Mr Burke collected the original Will and other documents from the solicitors’ strongroom, and the couple subsequently relocated to the Gold Coast. The original Will could not later be located despite diligent enquiries.
In 2008, the same solicitors prepared a Codicil to the deceased’s Will, executed on 2 July 2008, which deleted Clause 3 (naming Mr Burke as executor) and appointed the applicant, Jennifer Anne Bisignano, as sole executor. Mr Burke passed away in January 2005 and the deceased in May 2005. After the deceased’s death, the applicant discovered a fire-resistant box containing a copy of the 1994 Will together with the original 2008 Codicil and other important documents.
Jennifer Anne Bisignano applied for a Grant of Probate of the copy Will together with the Codicil. The application was dealt with on the papers without oral hearing.
The Court’s Holding
Doyle JA held that the Court has power to admit a copy of a Will to probate, and that such an order was appropriate in these circumstances. The judge accepted that the copy Will together with the Codicil embodied the testamentary intentions of the deceased. The material demonstrated that the copy Will revoked all previous Wills and represented the deceased’s current Will at the last occasion of any recorded testamentary act—the execution of the Codicil.
The judge found critical evidence that the deceased had not sought to revoke the 1994 Will beyond changing the executor in 2008, and there was no evidence she had revoked it by destruction of the original. The retention of the copy in a safe envelope kept in a safe box strongly suggested the deceased did not intend to revoke the earlier Will. The copy Will on its face appeared to be a true copy of an executed Will intended as the deceased’s final testamentary disposition.
The Court ordered that, subject to the Registrar’s formal requirements, a Grant of Probate issue with respect to the copy of the Will dated 13 December 1994 and the original Codicil dated 2 July 2008 to Jennifer Anne Bisignano as Executor. The judge also corrected a misspelling of the applicant’s name (missing final letter in “Anne”) to reflect the testator’s actual intention to appoint her daughter. Costs were ordered to be paid from the estate on an indemnity basis.
Key Takeaways
- Courts may grant probate of a copy of a will when the original is lost, provided the copy is a true reproduction of an executed testamentary document.
- A subsequent Codicil that references the earlier Will as current can evidence that the testator did not intend to revoke it.
- Retention of a copy of a Will in a safe place after the original’s loss suggests the testator did not destroy the original with intention to revoke.
- The Court will examine the totality of circumstances—including testamentary conduct over time and proper preservation of copies—to determine the deceased’s actual testamentary intentions.
Why It Matters
This decision provides important guidance on succession practice when original Wills cannot be located. Rather than treating loss of the original as a complete bar to probate, the Queensland courts will examine whether a reliable copy exists and whether the totality of evidence—including subsequent testamentary acts, diligent searches, and circumstances of retention—confirms that the copy represents the deceased’s true final Will. This approach balances protection of estate assets and the deceased’s intentions against unreasonable technical barriers when loss occurs through circumstances beyond the executor’s control.
For practitioners, the decision reinforces that proper documentation and retention of Will copies, and clear evidence of searches undertaken and enquiries made, are essential when seeking probate of a lost Will. The reference in a later Codicil to an earlier Will is powerful evidence the earlier Will remained operative, and minor clerical errors (such as misspelling of names) need not defeat probate if the testator’s actual intention is clear from the evidence.