Storage of wills, Lost Wills, Destruction of a will, Probating a copy of a will

Athena Yiossis made a will in 1995. She left everything to her three children but created a life interest enabling her autistic Son Rakesh to remain in her home until he died. Unfortunately no-one actually thought to take out probate of the will and when one of her Sons finally checked in 2006 they found the home still in the deceased's name alone. Everyone knew that a will had been made but unfortunately the original will and the title to the house had apparently both suffered the same fate. Both originals had been kept in the family home where the autistic boy, with a proclivity for disposing of paperwork he saw as useless, lived alone. Apparently "Rakesh"  had inadvertently  thrown the original title and will out in the rubbish some years after his Mother passed away. Fortunately the solicitor who made the will had retained a "marked up" copy which was presented to the probate office earlier this year. The probate office in South Australia was not prepared to grant probate of the copy and referred the matter instead to a judge in the Supreme Court in that State.

The applicable Probate Rules in South Australia are similar to those in Victoria and state that such a copy may be admitted to proof provided it is supported by affidavits as to:-
(a) The original will having been properly signed and witnessed.
(b) The existence of the will after the death of the testator or such evidence as will rebut the presumption that the will was revoked by having been destroyed AND;
(c) the accuracy of the copy will or other evidence of the contents of the will.

Complicating the Courts task in this case was the fact that the deceased was still married to her third Husband from whom she had separated in 1984. Evidence was led that satisfied the Court regarding the long separation of the parties and the fact that the third Husband was probably dead.
In the event the Court was satisfied that the copy was a complete and accurate copy of the will and that it had been duly executed and had not been revoked by the deceased before she died. The copy was admitted to probate and Rakesh was safe to stay living in mum's house until his death.