In the estate of Notaras [2009] ACTSC 14 (2 March 2009)

Last Updated: 16 March 2009

IN THE ESTATE OF EMMANUEL THEO NOTARAS

[2009] ACTSC 14 (2 March 2009)

WILLS AND PROBATE – original will lost – Court satisfied that will was valid and was not revoked – order that copy of will be admitted to probate – declaration in alternative that copy will constitutes last will of deceased

Wills Act 1968, s 11A

Wills Act 1936 (SA), s 12

In the Estate of Gwynne (1988) 48 SASR 209

Re Letcher (1993) 114 FLR 397

No. P 701 of 2008

Judge: Master Harper

Supreme Court of the ACT

Date: 2 March 2009

IN THE SUPREME COURT OF THE )

) No. P 701 of 2008

AUSTRALIAN CAPITAL TERRITORY )

IN THE ESTATE OF EMMANUEL THEO NOTARAS

ORDER

Judge: Master Harper

Date: 2 March 2009

Place: Canberra

THE COURT ORDERS THAT:

1. The copy will of the deceased dated 20 May 2007 be admitted to probate subject to the making of an application for probate in the usual form, supported by an affidavit by an attesting witness to the original affidavit.

In the alternative, THE COURT DECLARES THAT:

2. The copy will of the deceased dated 20 May 2007 constitutes the last will of the deceased.

1. This application raises the question of what is to be done where the Court is satisfied that a deceased testator has made a valid will, but the will has been lost.

2. Emmanuel Theo Notaras died on 30 May 2007. I am satisfied that about ten days earlier he made a will. The will had been prepared by his solicitor, Mr Dennis Martin, who is married to the sister of the deceased. Mr Martin deposes that the will was executed at the Canberra Hospice in the presence of his wife, and of another brother-in-law of the deceased, Mr Koundouris. For the will to be admitted to probate, it will be necessary for one of those witnesses to make an affidavit of attesting witness in the usual manner, but subject to that and for the purposes of the present application I am satisfied that the will was validly made.

3. Mr Martin has produced a copy of the will. I am satisfied that the copy is a true copy of the original will.

4. Mr Martin deposes that he took the signed will home with him, I infer from the hospice immediately after its execution. He says that it is now lost. Exhaustive enquiry and search has been made for the document at Mr Martin’s home and at the offices of the firm in which he is a partner, Snedden Hall & Gallop, without success.

5. The Wills Act 1968 provides for various contingencies, including giving this court power to declare a will valid although in some respect it does not comply with the statutory requirements for execution. But the Wills Act does not deal with the present problem. No provision is made for admitting a will to probate where the will cannot be found and may no longer exist, but where the Court is satisfied that it was validly executed and not revoked by the testator in his lifetime.

6. A similar fact situation came before White J in In the Estate of Gwynne (1988) 48 SASR 209. In that case the original will could not be found after the death of the testator but an unsigned carbon copy was located, bearing a notation in the handwriting of the solicitor of the deceased “original signed and taken by Ms Gwynne 25.6.63”. The solicitor predeceased the testator but his handwriting was identified by a surviving partner who gave evidence that the solicitor was a competent and reliable practitioner with a practice of attending clients personally in relation to their wills.

7. White J was satisfied on the balance of probabilities that the original will had been validly executed on the stated date, and ordered that the carbon copy of the will be admitted to probate. In the alternative, presumably in case that approach might be subsequently found to be beyond power, White J treated the application as one under section 12 of the Wills Act 1936 (SA) and ordered that the carbon copy be deemed to be the last will and testament of the deceased. That section is equivalent to section 11A of the Wills Act 1968.

8. Declarations under section 11A have been made on many occasions in this court, though generally in relation to original documents intended by the testator to constitute his or her will: see for example Re Letcher (1993) 114 FLR 397 per Gallop J.

9. I propose to adopt the same approach as White J in Gwynne. I order that the copy of the will may be admitted to probate, subject to the making of a formal application for probate supported by an affidavit of one of the attesting witnesses. In the alternative, I declare that the copy of the will constitutes the last will of the deceased pursuant to section 11A of the Wills Act.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 2 March 2009

Counsel for the applicant: Mr WMC Andrews

Solicitors for the applicant: Snedden Hall & Gallop

Date of hearing: 20 February 2009

Date of judgment: 2 March 2009