LARUSSA v CARR as administratrix of the estate of GIUSEPPE LARUSSA

[2016] WASC 332

Supreme Court of Western Australia

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Interrogate

Catchwords

1. Succession Law
2. › Wills
3. › Lost will
4. › Proof of lost will
5. › Presumption of destruction with intention of revocation
6. › Whether presumption displaced
7. › Wills Act 1970 (WA), s 15(c)
1. Evidence
2. › Credibility of witnesses
3. › Unreliable witnesses
4. › Evidence accepted only where corroborated

Quick Take

The case illustrates the application of the five requirements for proof of a lost will (from [name withheld] v [name withheld]) and the circumstances in which the presumption of destruction with intention of revocation will not be displaced, particularly where the propounder's own prior conduct is inconsistent with the existence of the will at the time of death. A testator's statements to third parties that he did not have a will, combined with the propounder's prolonged sworn assertions of intestacy, were held to support rather than displace the presumption.