The recent decision of In the estate of Edward Steven Middleton (deceased)  QSC 128 (Middleton) demonstrates the importance of seeking legal advice whenever your testamentary wishes change to help ensure your final wishes are met. In this case, despite a clear final wish to benefit his daughter and despite having made two Wills in his lifetime, the deceased was declared to have died intestate (without a Will). This outcome and its associated consequences could have been avoided or mitigated with the benefit of legal advice.
The testator, Edward, died in December 2018, leaving an estate worth approximately $600,000. Edward was survived by two children – a daughter and a son – each from separate relationships.
In his life, Edward had made two Wills – one in 1994 and another in 2013. The validity of the Wills was not in dispute. Each had been executed in accordance with the formalities required for a valid Will.
Edward’s 1994 Will had appointed his daughter as his executor and had gifted the bulk of his estate to her. Edward’s relationship with his daughter subsequently deteriorated to the point that he no longer wished to benefit her. Edward’s 2013 Will appointed the Public Trustee of Queensland (PTQ) as his executor and gifted the bulk of his estate to the RSPCA. The 2013 Will also contained a revocation clause, the effect of which was to revoke the 1994 Will. Edward left the original 2013 Will in the safe custody of the PTQ.
In 2014, Edward and his daughter reconciled and maintained a good relationship until Edward’s death.
In 2016, Edward wrote to the PTQ seeking the release of the original 2013 Will to him and subsequently took possession of it. The evidence showed that, following Edward’s reconciliation with his daughter, he had expressed an intention to her and others that he wished to leave his estate to her. Edward told his daughter about the 2013 Will and that he had written to the PTQ “to get them to cancel it” (when in fact he had only requested its release) and had arranged to collect it to save any confusion for [his daughter] in the future. Only days before his death, Edward told his daughter and another person that the 1994 Will was his current Will and that he was happy with it. Edward dismissed the suggestion of making a fresh Will.
Although the original 1994 Will had been stored in Edward’s filing cabinet, the original 2013 Will could not be located at the time of his death.
The revocation and revival of Wills
There are a few ways in which a Will can be revoked.
Typically, this is done by making a new Will which contains a revocation clause (i.e. a clause which states that past Wills and testamentary documents are revoked).
Relevantly for this article, a Will may also be revoked by the testator, or someone in the testator’s presence and at the testator’s direction:
- burning, tearing or otherwise destroying the Will with the intention of the testator to revoke it; or
- writing on the Will, or dealing with the Will, in a way that satisfies the Court, from the state of the Will, that the testator intended to revoke it.
Where an original Will cannot be located upon a testator’s death and is last traced to the testator’s possession, the law presumes that the Will was destroyed by the testator with the intention of revoking it. This presumption is rebuttable by contrary evidence.
Once a Will has been revoked, it can only be revived by re-execution or by codicil. Mere verbal statements will not revive it nor will simply revoking the instrument which revoked the Will in the first place.
Where, however, the Court is satisfied that a testator revoked a Will on a mistaken assumption of fact or law, the Will will not be revoked. This is known as the doctrine of dependent relative revocation (more easily understood as conditional revocation). For example, say a testator revokes a Will by destroying it with the intention that its destruction will revive a previously revoked Will and the Court is satisfied that the testator would not have done this had he or she known that this would not revive the previous Will, the revocation of the later Will will be ineffective. Though there are many more examples of how the doctrine can operate, elaborating on it further is beyond the scope of this article. The doctrine was however argued in the case of Middleton in an attempt to rebut the presumption that the 2013 Will had been revoked by destruction.
The Court’s findings in Middleton
Edward’s daughter naturally wanted to take the benefit of the 1994 Will. She brought an application seeking a declaration that a copy (not the original) of the 1994 Will formed Edward’s last Will (the basis of which is explained briefly further below). She argued that the 2013 Will had been revoked under the presumption of destruction.
The PTQ resisted the application arguing that the 2013 Will had not been effectively revoked because Edward had (under the presumption) destroyed it in the mistaken belief that this would revive the 1994 Will. As such, the PTQ argued that the 2013 Will ought to be declared Edward’s last will. The RSPCA also participated in the proceeding and supported the arguments of the PTQ.
The Court made the following determinations:
- The failure to locate the original 2013 Will raised the presumption that Edward had destroyed it with the intention of revoking it. In support of this finding was the evidence that Edward was otherwise meticulous and organised with his important documents as well as his statements that he was happy with his 1994 Will and that he wanted to leave his estate to his daughter.
- The Court was not satisfied that the evidence supported a finding that Edward’s revocation of the 2013 Will was conditional upon the 1994 Will being revived. The repair of Edward’s relationship with his daughter as well as his statements about wanting to leave his estate to her were consistent with Edward having unconditionally intended to no longer benefit the RSPCA.
- As such, the Court found that Edward had revoked the original 2013 Will.
- The Court also found that Edward had revoked the 1994 Will when he made the 2013 Will. The 2013 Will contained a revocation clause and, when it was executed, Edward clearly intended not to benefit his daughter. As such, the revocation of the 1994 Will was unconditional and intended to operate upon the execution of the 2013 Will. Edward’s later statements about the 1994 Will were insufficient, on their own, to revive it.
- Obviously aware that the Court would likely find that the original 1994 Will had been revoked, Edward’s daughter tried to argue that probate should be granted in respect of a copy of the 1994 Will pursuant to the informal will provisions in the Succession Act 1981 (Qld). The topic of informal wills is beyond the scope of this article, but suffice it to say that the evidence did not support a finding that the requirements for an informal will had been made out in this case.
- Due to the Court’s findings that both the original 1994 Will and the original 2013 Will had been revoked, Edward was declared to have died intestate.
Consequences of the Court’s decision in Middleton
The determination that Edward died intestate has several potentially undesirable consequences for Edward’s estate:
- First and foremost, Edward’s dying wish to leave his estate to his daughter will not be met because, under the intestacy rules, and assuming Edward had no spouse when he died, Edward’s estate is equally divisible between his daughter and his son. Edward had no relationship with his son at the time of Edward’s death.
- Secondly, although the Court’s orders about the parties’ legal costs are not currently known, it is likely that all parties’ legal costs will be ordered to be paid from Edward’s estate, needlessly depleting what was already a small estate.
- Thirdly, depending on the circumstances of Edward’s children, one or both may commence a family provision application against the estate if their entitlements on intestacy do not adequately provide for their proper maintenance and support.
- Finally, in the absence of a chosen executor, and assuming Edward had no spouse when he died, Edward’s children are equally entitled to take out a grant to administer his estate. Depending on the state of their relationship with each other, this could lead to further disputes.
All of these consequences have led, or could lead, to unnecessary cost, delay and stress – all of which could have been avoided or mitigated had Edward sought legal advice regarding the changes to his testamentary wishes.
This case illustrates the importance of seeking estate planning advice to help ensure your testamentary wishes are fulfilled. If you are considering making changes to your own estate plan, or if you wish to create an estate plan, contact our acclaimed Wills and Estates specialist, Michael Klatt, on 07 3224 0370.
 Although all Australian States and Territories have legislation governing these matters, this article is concerned only with the current position in Queensland.
 Succession Act 1981 (Qld), s 13(e).
 Succession Act 1981 (Qld), s 17(1).