Written by Despina Bouletos
The Supreme Court of Queensland delivered an important judgment on 12 November 2024, Re Allan (Dec’d) [2024] QSC 277, in relation to the revocation of a will and its impact on the revival of a prior will. Although Re Allan was dealt with on the papers and the judgment itself is only twenty paragraphs long, it has significant implications for how a prior will may be revived.
Factual Matrix
Re Allan concerned an application by Mark Allan for a grant of letters of administration of the estate of his wife, the late Joanne Allan, who died on 5 November 2009.
Mark and Joanne had been married since 1992 and had two children together. On 17 October 1997, both Joanne and Mark prepared wills (“1997 Wills”) in which they left the entirety of their estates to one another. The 1997 Wills also contained a clause that Mark’s and Joanne’s parents would be appointed as joint guardians of their children, if both Mark and Joanne died.
On 22 November 2003, Joanne and Mark prepared new wills (“2003 Wills”). Each of the 2003 Wills were identical to the 1997 wills except that, instead of nominating both Joanne’s and Mark’s parents as guardians of their children, only Mark’s parents were nominated. Both the 1997 and 2003 Wills were prepared by a solicitor and the 2003 Wills were held at that solicitor’s office.
In July 2009, two months prior to Joanne’s death, she and Mark attended on their solicitors and recovered the 2003 Wills. Mark gave evidence that he and Joanne proceeded to destroy the 2003 Wills with the intention of revoking them and that it was his and Joanne’s understanding that in doing so they had reinstated the 1997 Wills.
Earlier Application
In 2020, Mark sought letters of administration of Joanne’s 1997 Will. The Court rejected Mark’s application on the basis that:
- There was an inference that Joanne’s 2003 Will contained a provision revoking all previous wills;
- Upon execution of the 2003 Will, Joanne revoked her 1997 Will;
- In July 2009, Joanne revoked her 2003 Will by destroying it with the intention of revoking it; and
- As a matter of law, the revocation of the 2003 Will was not sufficient to revive Joanne’s 1997 Will, as none of the circumstances set out in Section 17 of the Succession Act 1981 (QLD) (“Queensland Act”) allowing for the revival of an earlier will that has been revoked, were enlivened.
Legislative Provisions
Section 17(1) of the Queensland Act states that a will that has been revoked is revived by re-execution or by execution of a new will that shows an intention to revive the prior will. Importantly, section 15 of the Succession Act 2006 (NSW) (“NSW Act”) contains an identical provision.
Current Application
For the purpose of the current application, Mark accepted that Joanne had died intestate (given the Court’s findings in the prior application) and therefore sought a grant of letters of administration on the basis of intestacy. The Court allowed Mark’s application.
Implications
The finding of the Court in Re Allan has significant implications for the revival of wills in NSW and the enlivening of s15 of the NSW Act. It will not suffice simply for a testator or testatrix to revoke a will which itself revokes a prior will, in an effort to revive that prior will.
Rather, more actives step will be required to revive a prior will, being either re-execution of that will or execution of a new will that reflects an intention to revive the prior will. If such steps are not taken, there is a very real risk that a testator or testatrix may be found to have died intestate, notwithstanding their contrary intentions. Practitioners will also need to give careful consideration as to how to give effect to a client’s intentions to revive a prior will.
The contents of this post are for informational purposes only. They do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. If you require legal advice or representation for your estate planning, please contact our experienced succession law team.
