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Court accepts photocopied will

A Brisbane Supreme Court judge has allowed a photocopied will to be accepted for probate after the original document went missing from a firm impacted by the COVID-19 pandemic.

Justice Peter Davis on Wednesday ordered the “photocopy of the will of Joan Fawkes of Emmaus Village Aged Care…be admitted to probate”.

In a four-page decision, his Honour said: “I am satisfied that the will was not revoked by Ms Fawkes and probate ought to be given of the copy of the will.”

The court was told that Mrs Fawkes, 95, passed away at an aged care facility on Brisbane’s northside of 17 February 2020 and that the two executors and trustees named in her will only possessed a photocopy of the document.

“There is no doubt that the will was prepared by Lang Hemming and Hall Solicitors,” Justice Davis said. “The copy of the will bears the name and address of the solicitors. On its face, the will is validly executed and one of the witnesses is a solicitor, Daniel John McIvor.

“While the evidence is not particularly clear, it seems that the will was retained by Lang Hemming and Hall Solicitors…but a copy found its way to the proposed executors (Mrs Fawkes’ son and grandson.)

“Upon the death of Mrs Fawkes…(the firm) were approached but the original will cannot be found.

“(The firm) is a trading name of The LawStore Group Pty Ltd, an unincorporated law practice…(that) suffered during the COVID-19 pandemic and a liquidator…was appointed.”

Justice Davis said there were “three realistic possibilities” for the missing will:

  • the will was sent by Lang Hemming and Hall to Mrs Fawkes who lost it, perhaps during her move to Emmaus Village Aged Care
  • the will was sent to Mrs Fawkes who destroyed it with the intention of revoking it, or
  • the will was retained by Lang Hemming and Hall who lost it, perhaps during the winding up of the incorporated legal practice.

“The destruction and revocation of the will by Mrs Fawkes seems unlikely,” Justice Davis said. “It is far more likely that the will has been lost by either her or Lang Hemming and Hall.

“Of those two options, the latter is the most likely. I cannot believe that Lang Hemming and Hall would have prepared the will without opening a file and keeping records of what became of the will once it was executed.

“The absence of those records suggests that the records have been lost. The practice has gone through the upheaval of liquidation and the most likely fate of the will is that it was lost by those solicitors.”

The decision is available online.

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