The High Court has refused an application to admit a copy of Carmel Curtin’s 1998 will to probate, finding that the evidence pointed to her having destroyed the original while she had capacity to revoke it.
Ms Justice Baker delivered judgment on 14 October 2015 in a probate application concerning Curtin, who died in February 2013. Her original will could not be found, but a photocopy and evidence supporting its due execution and accuracy were available. Three of the four people named as executors sought to have the copy admitted. Most of Curtin’s next of kin opposed the application. If the copy was not admitted, the parties accepted that she would be treated as having died intestate.
The handwritten will made specific cash gifts, left Curtin’s interest in her home equally to her brother and two nephews, and divided the residue among her nieces and nephews. Notes found with the copy included a July 2006 description of it as her “current will”, a later notation that it was “not valid now July 2006/7”, and a reference to the original being kept under a mirror in a bedroom. A separate note found in the envelope described a document as “Most valuable document I have”.
The court considered two distinct issues: whether the presumption that a missing will was destroyed to revoke it had been rebutted, and whether Curtin had capacity to revoke it when the original disappeared. The judgment reviewed diary entries, solicitor’s evidence and medical evidence. Curtin had considered making a new will, but no new will was found. The court found her cognitive impairment became apparent by 2008 and developed gradually between 2008 and 2010. It concluded there had been a period, extending to 2008 or possibly 2010, when she could have validly revoked the 1998 will.
In assessing whether the original had been lost or destroyed, the judge considered Curtin’s careful handling of documents, her written concern about the old will’s contents, and the absence of evidence that she continued to affirm it after 2006 or 2007. The court was not satisfied that the applicants had rebutted the presumption of revocation. It concluded that Curtin had destroyed the original with the intention of revoking it while she had legal capacity to do so.
The application to admit the photocopy to probate was refused. The judgment did not admit the copy as a will; on the parties’ stated position, refusal meant the estate would be treated as intestate.