Contesting Wills – Revocation by Destruction

Published 01 Aug 2012

Revocation of a Will by destruction is permissible under Section 11 of the Succession Act (“the Act”). Destruction means burning, tearing or otherwise destroying the Will with the intention of revoking it by the person who made the Will or by some other person in their presence and by their direction.

Once a Will has been destroyed the person who made the Will (“the testator”) is at risk of dying intestate unless an earlier Will is revived or they make a new Will. An intestate is a person who dies without leaving a Will. When a person dies intestate their property is distributed in accordance with the intestacy rules as follows:

  1. If they had a spouse but no children then their spouse is entitled to the whole of the Estate.
  2. If they had a spouse and the only children they had were with their spouse then their spouse is entitled to the whole of the Estate.
  3. If they had a spouse and children from another relationship then their spouse is entitled to the personal effects of the deceased, a statutory legacy and one half of the remainder of the Estate.
  4. If they had no spouse then their children are entitled to the whole of the Estate.
  5. If they had no spouse and no children then their parents are entitled to the whole of the Estate.
  6. If they had no spouse, no children and no parents still living then their brothers and sisters are entitled to the whole of their Estate.
  7. If they had no spouse, no children, no parents still living and no brothers or sisters then their grandparents are entitled to the whole of their Estate.
  8. If they had no spouse, no children, no parents still living, no brothers or sisters and no grandparents still living then their aunts and uncles are entitled to the whole of their Estate.

Destruction of a Will has resulted in large numbers of contested Will cases in the Court. The Court has been forced to decide whether the Will was destroyed with the intention of revocation or whether the Will was destroyed by another person hoping to benefit from an earlier Will or under the application of the intestacy laws.

If you believe that a Will of your loved one has been deliberately destroyed by a person hoping to gain from a previous Will or the intestacy laws you need to seek urgent legal advice.

This situation is not as uncommon as you think. In a recent case in the Supreme Court of New South Wales a Grant of Probate was made for what was believed to be the last Will of the deceased.  The Estate of the deceased was valued at approximately $1,500,000.00 with the carer of the deceased the major beneficiary under the Will. The brother of the deceased submitted that the Grant of Probate should be revoked as the deceased had made a further Will reducing the gift to her carer on account of the carer’s fraudulent dealings with the deceased’s cheque book whilst the deceased was alive. The evidence showed that the deceased’s carer had visited the deceased’s house alone immediately after being informed of the death of the deceased. The carer stated that she had gone to the deceased’s house to collect her personal belongings. The brother of the deceased argued that the carer was the person with the greatest interest in the new Will not being found. Her attendance at the home of the deceased after learning of the deceased’s death gave the carer the opportunity to search and destroy any new Will.

Despite the Court questioning the credibility of the carer the Court refused to make a finding that the carer had destroyed the new Will.

The above case illustrates the need for strong and persuasive evidence when contesting a Will where destruction by revocation is raised.

Contact GMP Contesting a Will Lawyers to book a free first consultation. At the first consultation we will discuss with you in a professional friendly manner the details of your situation and advise you if and how you should proceed.

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