By Darryl Browne -
Key decisions
- Larussa v Carr as administrator of the late Giusseppe Larussa [2018] WASCA 127
- Sydney Children’s Hospital Network, The Application of [2018] NSWSC 1259
- An NHS Trust v Y [2018] UKSC 46
- Burns v Corbett [2018] HCA 15
- Re Estate Grant, deceased [2018] NSWSC 1031
Appellate court decision concerning presumed revocation of wills
Giuseppe Larussa had separated from his wife in 1991. There had been a court-ordered division of property between them, but they had never divorced. He had two children. His son asserted that his father had made a will in 1991 which made no provision for his father’s wife. The original will could not be found, but it was established by an unexecuted facsimile copy, and evidence of its execution. The son bore the onus of proving that the lost will had not been revoked, something he failed to discharge at first instance.
On appeal, the Court applied the presumption of fact ‘that if a will known to have existed and last known to have been in the possession of the deceased cannot be found after death, it is presumed that the deceased destroyed it with the intention of revoking it’. The presumption ‘may be overcome by facts showing a higher degree of probability that the will was accidentally lost or destroyed rather than destroyed with the intention to revoke it or, more generally, could not be produced for some reason other than that it was destroyed by the deceased with the intention to revoke it’ (Larussa v Carr as administrator of the late Giusseppe Larussa [2018] WASCA 127). The Court of Appeal agreed with the trial judge that the presumption had not been discharged and pronounced an intestacy.
