Bubko v Zimmermann

SUPREME COURT OF VICTORIA AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION	Not Restricted

IN ITS PROBATE JURISDICTION

IN THE MATTER of the Will of Augusta (also known as Auguste) Bubko, deceased.

No. PROB 13 of 2000

BETWEEN:

RAYMOND BUBKO	Plaintiff
v
EVA ELSE ZIMMERMANN	Defendant

- and -

IN THE MATTER of the Will of Auguste Bubko, deceased.

EVA ELSE ZIMMERMANN

Plaintiff

IN THE MATTER of the Will and Estate of Auguste Bubko, deceased.

No. 5507 of 2000

IN THE MATTER of an application pursuant to section 15 of the Administration and Probate Act 1958

BETWEEN:

EVA ELSE ZIMMERMANN	Plaintiff
v
RAYMOND BUBKO	Defendant

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATES OF HEARING:	23 and 26 March 2001
DATE OF JUDGMENT:	11 May 2001
CASE MAY BE CITED AS:	Bubko v Zimmermann and Ors
MEDIUM NEUTRAL CITATION:	[2001] VSC 137

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Wills: copy of will admitted to Probate, original not produced.

Wills Act 1958 s. 7
Wills Act 1997 ss. 7(1), 9(1)(a), 52(1) and (4)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Shane Newton	Wighton & McDonald

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HIS HONOUR:

On 22 June 1999 Raymond Bubko made application to the court for a grant of Probate of the Will of Augusta (also known as Auguste) Bubko, deceased, dated 3 June 1976. The deceased was born in Poland on 30 March 1904. She died in Geelong on 17 April 1999. The plaintiff in that proceeding is the son of the deceased. By the terms of the Will of the deceased made on 3 June 1976 she appointed her son, Raymond Bubko, as the sole executor of her Will. By the inventory of assets and liabilities as filed by Raymond Bubko it appears that the real estate of the deceased in Victoria at the time of her death was a house and land situated at 18 Latrobe Boulevard, South Geelong which was formerly known as 18 Hopkins Street, South Geelong which is valued at $40,000 and a house and land situated at 15 Moyston Grove, Corio which is valued at $50,000. By that document it appears that the personal estate of the deceased in Victoria comprised items valued at $1,003. At the time of her death the deceased owned no real estate outside Victoria nor did she possess any personal assets outside Victoria.

By the terms of the Will of the deceased dated 3 June 1976 she devised and bequeathed the whole of her real and personal estate to her son, Raymond Bubko.

On 20 May 1999 Raymond Bubko advertised in the Geelong Advertiser his intention to make application for a grant of probate of the aforesaid Will. On 28 June 1999 Raymond Bubko re-advertised the application to be made by him. On 24 May 1999 there was filed with the court a caveat by Eva Else Zimmermann against the grant of probate of the Will of the deceased dated 3 June 1976. Eva Else Zimmermann is the former wife of Raymond Bubko and the former daughter-in-law of the deceased. The grounds on which Eva Zimmermann objected to the grant of probate of the Will of the deceased dated 3 June 1976 were – “That there is a later Will executed by the testatrix on 19 September 1997”.

On 22 July 1999 it was ordered by the court that the caveatrix, Eva Zimmermann, be added as a defendant to those proceedings.

On 31 December 1999 application was made to the court by Eva Zimmermann for the grant of probate of the Will of the deceased, as contained in a photocopy of the Will dated 19 September 1997. That application was made by Eva Zimmermann as one of the executors of the Will of the deceased, there being reserved to Raymond Bubko, the other named executor, to come in and prove the same limited until the original Will or a more authentic copy thereof was filed with the court. By the Will, a copy of which Eva Zimmermann sought a grant of probate, the deceased:

§ by paragraph 1 thereof revoked all former Wills and testamentary depositions previously made by her;
§ by paragraph 2 thereof appointed her son, Raymond Bubko, and her former daughter-in-law, Eva Zimmermann, executors and trustees of her Will;
§ by paragraph 3 thereof provided –
“I GIVE AND BEQUEATH
My house in 18 Latrobe Boulevard, South Geelong and my house in 15 Moyston grove, Corio to my grandson Ronald Roman Bubko, my grandson Fred Freeman and my former daughter-in-law Eva Zimmermann one third of the share each as tenants in common. And I direct that my son Raymond Bubko be the occupier for the time of his life of my house at 18 Latrobe Boulevard, Geelong South and be responsible for the upkeep of the property”;

§ by paragraph 4 thereof, declared that the will be her last will and testament.
The deceased made no further testamentary provision in that Will.

In the application made by Eva Zimmermann for probate of the Will of the deceased bearing the date 19 September 1997 there was exhibited to the affidavit sworn by her on 10 December 1999 that which was deposed to be the Will of the deceased, “as contained in a photocopy thereof”. That copy Will comprised two pages. The first page comprised the four paragraphs previously referred to. After paragraph 4 there was stated:

“In witness whereof I have hereto set my hand this day of September one thousand nine hundred and ninety seven.”

At the foot of the left-hand side of that page there was typed – “page 1 of 2”. On the right-hand foot of that page there was the imprint of a stamp which reads:

“I certify that I have compared
this copy document with the
original and that it is a true copy
dated at Geelong 19/9/97
Darren John Stebbings
Deputy Registrar of the
Magistrates’ Court of Victoria
Court House Geelong”

The date was completed in blue ink. Above the words “Darren John Stebbings” there was a signature written in blue ink.

On p. 2 of that Will there was typed an attestation clause as follows:

“Signed by the said Auguste Bubko the Testatrix as and for her last Will and Testament in the sight and presence of us both present at the one time who at her request and in her sight and presence and in the sight and presence of each other have here unto subscribed our names as witnesses.”

Below that clause there was typed “Signature” adjacent to which was the signature of the deceased. Below that there was typed –
“The first witness: Name
Address
Occupation”

Adjacent to which words there was written “Ellen Nicholls”, “485 Ballarat Road, Batesford 33” (and a further figure which in part is obscured) “housewife”. Again below that there was typed –
“Second Witness: Name
Address
Occupation”

Adjacent to which words there was written, “Inge Schmeiser”, “10 Boyn Ave, East Geelong”, “Housewife”. At the foot of that page on the left-hand side there was typed – “page 2 of 2”. On the right-hand side of the foot of that page there was the imprint of a stamp in the same words as that appearing on page 1. The date 19/9/97 was written in blue ink and the signature above the words “Darren John Stebbings” was written in blue ink.

In her affidavit sworn on 10 December 1999 and filed in support of her application Eva Zimmermann deposed, inter alia: “The deceased left a Will dated 19 September 1997 (as contained in a photocopy thereof) which is unrevoked.” She exhibited to her affidavit the Will, “as contained in a photocopy”. The two page document exhibited to that affidavit of Eva Zimmermann and which remains on the file of the court appears to have been joined together at the top left-hand side by a single staple. The second page has become detached from the staple, however, both pages remain together on the file.

In her affidavit sworn on 10 December 1999 Eva Zimmermann further deposed by paragraph 16 thereof –

“I have made attempts to locate the original Will of the deceased. I was present at the time that the Will was executed. The Testatrix permitted me to take the original Will to have it photocopied. After it was copied I took the original and copies to the Magistrates’ Court at Geelong where the Registrar of the Court certified the copies as true copies of the original Will. Now produced to me and marked with the letter ‘B’ is one of those certified copies. After the copies were certified, I took the original Will to the home of the Testatrix and handed the original to Raymond Bubko the son of the deceased. I have caused my solicitor to make demand on Raymond Bubko to deliver up the original of the Will. I am advised by my solicitor that Mr Bubko denies receiving the Will from me.”

By paragraph 10 of her affidavit, Eva Zimmermann also deposed that the will was executed in the presence of Ellen May Nicholls and Inge Schmeiser.

On 25 May 2000 further proceedings were commenced in the court - in the Will and estate of Auguste Bubko pursuant to s. 15 of the Administration and Probate Act 1958 by Eva Zimmermann as plaintiff and Raymond Bubko as defendant. In those proceedings the plaintiff sought orders –

§ That the defendant show cause why he should not bring the Will of the deceased dated 19 September 1997 into court.
§ That the defendant show cause why administration with the said Will annexed should not be granted to the plaintiff.
§ That the plaintiff be granted administration with the said Will annexed to the estate of the deceased.

Each of these proceedings were listed for trial by the court on the same day. Eva Zimmermann appeared by counsel. Raymond Bubko appeared. He was not represented by a legal practitioner. He appeared to conduct each of the proceedings on his own behalf.

The trial of each of the proceedings were heard together. At the outset counsel for Eva Zimmermann informed the court that there was no dispute that the deceased had made a Will in 1976. He further informed the court that the dispute was whether that which was said to be the Will made and signed by the deceased on 19 September 1997 should be admitted to probate.

Throughout the three files relevant to each of the three proceedings there is to be found affidavits relevant to each of the proceedings although it is apparent that in some cases those affidavits and other documents are incorrect in their heading. It is further apparent from examination of the files that it appears that some documents have been placed on the incorrect file.

In her affidavit sworn on 10 February 2000 Eva Zimmermann deposed that she had been married to Raymond Bubko on 16 June 1956. They had two children, Ronald Roman Bubko, born on 8 September 1957 and Fred Freeman who was born on 5 October 1958. The court was informed that the second son had changed his name to that which was now Fred Freeman. It was both of those sons who are beneficiaries of the estate of the deceased pursuant to the Will said to have been made by the deceased on 19 September 1997. Eva Zimmermann deposed that she and Raymond Bubko separated in September 1979 and their marriage was dissolved by decree made on 20 February 1981. In her affidavit Eva Zimmermann sets out the matters which she has sworn occurred before 19 September 1997, on 19 September 1997 and thereafter as is relevant to these proceedings. It is to those facts and matters as deposed to by Eva Zimmermann that I now refer to. Eva Zimmermann has sworn that in early September 1997 Raymond Bubko approached her to discuss the necessity for his mother to execute a new Will. She has said that he advised her of his mother’s wishes and that she prepared a Will on her computer in accordance with those wishes. She has sworn that on 19 September 1997 she attended at the deceased’s home and that present at that time was her grand-daughter, Natalie Freeman, Raymond Bubko, the deceased, Ellen Nicholls and Inge Schmeiser. She has sworn that they were all present and together at the deceased’s home at approximately 12.30 pm when Raymond Bubko read the Will in English to the deceased and that present at that time were the witnesses, Ellen Nicholls and Inge Schmeiser. Eva Zimmermann has sworn that the deceased was unable to read the Will because her eyesight was failing but she indicated that she agreed with the terms of the Will and thereafter she executed the Will on the second page in the presence of Ellen Nicholls and Inge Schmeiser who both then signed the Will as witnesses. Eva Zimmermann has sworn that after the Will was executed she took the original to the Geelong Magistrates’ Court where she had photocopies taken of the original Will. She has sworn that those copies were then certified as true and correct by Darren John Stebbings, the Deputy Registrar of the Magistrates’ Court. Exhibited to her affidavit is that which she has sworn to be a copy of the Will dated 19 September 1997 which had been so certified by Darren Stebbings. She has sworn that the document is a true copy of the Will executed by the deceased on 19 September 1997. Eva Zimmermann further deposed that after the certified copies were made she delivered the original Will to Raymond Bubko for safe keeping on behalf of the deceased.

Eva Zimmermann has further sworn that at the time of the death of the deceased, on 17 April 1999, she was not aware of the existence of the Will made by the deceased and dated 3 June 1976 or any other Will made by the deceased other than that which was made on 19 September 1997.

Eva Zimmermann has further sworn in her affidavit that at the time of the death of the deceased Raymond Bubko was an undischarged bankrupt, he having been declared bankrupt on 3 July 1997, however, he was discharged from bankruptcy on 11 June 1999.

Eva Zimmermann further deposed that a few days after the death of the deceased she requested Raymond Bubko to give her the original Will so that she could make application for a grant of probate, but he told her that he objected to the wording of the Will in relation to his right to live in the property at Latrobe Boulevard. She has sworn that Raymond Bubko stated that he wanted to alter the Will to ensure that the Public Trustee could not make a claim on behalf of his brother stating that it would be better for their sons as well. She has sworn that Raymond Bubko told her that his name was on the bank accounts in any event and that the proposed amendment was that which his mother would have wanted. She has sworn that Raymond Bubko then gave her a document which he proposed should replace the first page of the Will of the deceased exhibited to her affidavit. Eva Zimmermann exhibited that document to her affidavit. That document by its introductory paragraph and paragraphs numbered 1 and 2 thereof were in the same terms as the Will that Eva Zimmermann has sworn was made by the deceased on 19 September 1997. Paragraphs 3 and 4 differed from paragraphs 3 and 4 of the Will, sworn by Eva Zimmerman, to be made by the deceased on 19 September 1997. In those Paragraphs that draft provided –

“3. I give and bequeath
The amount of one dollar to my son Edward John Bubko, as he has Very Substantial amounts of money in his Savings-accounts and needs no help.
All Chattels of mine, and the two Commonwealth Bank Books of mine with Joint-names of mine and of my son and the Bendigo Bank Book of mine to be given to my son Raymond Bubko, to pay for funeral and medical and any other expenses at his discretion. Also to support charities.
My house in 18 Latrobe Boulevard, Geelong South and my house in 15 Moyston Grove, Corio, to my grand-son Ronald Roman Bubko, and my Grand-son Fred Freeman and my former Daughter-in-law Eva Zimmermann, one third of the share each, as tenants in common.
4.I direct that my son Raymond Bubko will be the sole occupier of my old house and property in 18 Latrobe Boulevard, Geelong South, not to be sold for the time of his life, while he occupies the property, and that he pays no rent to the three new owners, but he has to pay all rates and utilities and expenses, and he has to maintain the property.

By paragraph 5 on that page it stated –

“I Declare: this to be my last Will and Testament”

Thereafter was stated on that draft –
“In witness whereof I have hereunto set my hand this Nineteenth Day of September Nine hundred and ninety seven.
Page 1 of 2”

Eva Zimmermann deposed that this page had been prepared by Raymond Bubko and on his computer and that he told her that she had to reproduce the page on her computer because the original had been prepared on her computer. Eva Zimmermann deposed that she told Raymond Bubko that this was against the law and she refused to agree, that Raymond Bubko then became very angry and abusive and would not listen to anything further that she said.

Eva Zimmermann further deposed that Raymond Bubko produced to her a notice he had prepared for insertion in the Geelong Advertiser but that she refused to sign the same because she did not believe that the plaintiff was a suitable person to act as an executor and trustee because he was then an undischarged bankrupt. She swore that the notice as drafted specifically referred to the Will dated 19 September 1997 which had been delivered to Raymond Bubko by her after she had obtained a certified copy. She exhibited to her affidavit the notice produced to her by Raymond Bubko.

Further, by her affidavit, Eva Zimmermann deposed that on 16 May 1999 Raymond Bubko telephoned her and told her not to do anything about the Will as he would be out of bankruptcy in two weeks time and could deal with the properties himself. She deposed that in that conversation Raymond Bubko told her that if she would not cooperate with him he would apply for probate of an earlier Will. She deposed that she did not know what Will Raymond Bubko was referring to in this conversation. She deposed that Raymond Bubko further stated that the Will of the deceased dated 19 September 1997 was only to take effect in the event that he was still bankrupt so that he would not receive from the estate of the deceased assets which would form part of his bankrupt estate. Eva Zimmermann deposed that on 10 May 1999 she instructed her solicitor, David Lindsay, to prepare an application for the grant of probate of the Will dated 19 September 1997.

By a further affidavit sworn by Eva Zimmermann on 30 November 2000 she deposed that prior to the will of 19 September being signed Raymond Bubko had asked her to ring Mrs Nicholls to ask her to attend to witness the Will and that when she went to the deceased’s home on 19 September she was with Inge Schmeiser whom Raymond Bubko knew very well. She deposed that she and the two witnesses were in the room when Raymond Bubko read the will to the deceased and that there was nothing to block the view of anyone watching the deceased sign her Will. She deposed further that the deceased signed her name once as appears at the conclusion of the Will beside the word “signature”, that the witnesses also signed in the one place and that when they signed the Will the deceased was still in their presence. She deposed that her grandchild, Natalie, had a long conversation with the deceased at the table and that the deceased was there when she and the others left the house. She further deposed that at the Geelong Court House she requested one of the registrars to copy and certify the copy as a true copy of the original, that they did two copies of the Will and that both those were certified as true copies. She deposed that she then returned immediately to the house and gave the original document to Raymond Bubko and that by that time the deceased was back in bed. Further, Eva Zimmermann deposed that the Will which she seeks to have admitted to probate is identical to that which was executed by the testatrix the original of which was given by her to Raymond Bubko.

Eva Zimmermann was cross-examined by Raymond Bubko. She said that before the Will was signed on 19 September 1997 she made some trips to Batesford where there was situated a house which they had occupied previously and that on one of the trips, to collect possessions, she had shown him a page of the will which she had written on the computer and asked him whether that was alright and whether that was the way he wanted it. She said that he made some minor changes and that at his request she took it back and made the minor changes. She denied that when she took the Will to the court and had it copied she substituted the first page of the Will. She denied that the first page of the Will signed by the deceased had the figure 19 written in the date; she denied that the deceased had signed the first page of the Will. Eva Zimmermann said that when Raymond Bubko read the Will to his mother she was seated and he was walking around and that sometimes he was in front of her, but when she was signing the Will he was on her right-hand side showing her where to sign and that she saw the deceased sign the Will. She said that she typed out the Will to help Raymond Bubko because he had to move all the things he had “lost” to the Taxation Department and that he had said that his computer was not working properly. Raymond Bubko asked the witness if he had asked her to type a statement, below paragraph 4, stating that probate can be delayed. She replied, “Certainly not”.

She denied that before the will was signed she had made an agreement with him that the will would be destroyed the moment that he was out of bankruptcy and the properties returned to him. She said that after the will had been signed and she had given the original to him and that there was no discussion about the will.

Ronald Bubko, the son of Eva Zimmermann and Raymond Bubko was called as a witness and confirmed his affidavit sworn on 28 November 2000. In that affidavit he deposed that he recalled speaking to his father by telephone after his grandmother’s death and that in that conversation his father advised him that he wanted to change the contents of his grandmother’s Will. He deposed that he protested to his father that it was not correct to change the Will after it had been executed and the testatrix was deceased. He deposed that his father did not take notice of what he said and that he advised his father that he disapproved of any such action and that he would not take any part in it. He has sworn that despite his protest his father continued undeterred to explain to him what he wanted changed in the Will and that, further, there was a conversation with his father concerning the suggestion made by his father of them entering a business venture together.

In his affidavit Ronald Bubko further deposed that his father confirmed that he had the original Will and that he believed that he could do whatever he wished with it. He said that his father said that he did not wish his mother, Eva Zimmermann, to receive anything from his grandmother, the deceased. Ronald Bubko further deposed that later he was advised by his father that he had decided to apply for a grant of probate of a previous Will of his grandmother because he was no longer bankrupt. He deposed further that on other occasions his father, Raymond Bubko, discussed the Will with him and that he made it clear to him that he was planning to change the page on the Will on which there was no signature by substituting another page written by him.

In cross-examination Ronald Bubko was asked how it was that he was requested to make a statement. He replied that he was asked whether he had any information that could be of use or pertinent to the case, that he said that he did and that he was prepared to write an affidavit accordingly. As to the evidence of Ronald Bubko that his father wanted to change the Will, he was asked what change did he want. The witness replied that his father wanted to change the content such that he was able to get access to the estate which as the Will stood he was not able to do so directly. The witness said he was not exactly sure of the wording because his father never told him the final wording, that he wanted, but the effect of the change would be that he would “become a beneficiary of it somehow”. It was suggested to Ronald Bubko that he had been coached by his mother or somebody as to what he was supposed to be writing in his affidavit. The witness said, “absolutely no way”. He further said that he had never read, “Eva’s affidavits”.

The affidavit of Inge Schmeiser sworn 10 February 2000 was relied on by Eva Zimmermann in the proceedings. In her affidavit Inge Schmeiser deposed that she was present at the home of the deceased on 19 September 1997, that she had been requested by Eva Zimmermann to attend to act as a witness to the execution by the deceased of her Will. She deposed that also present at the time was Raymond Bubko, Eva Zimmermann, her grand-daughter Natalie Freeman, Ellen May Nicholls and the deceased. She deposed that in her presence Raymond Bubko read the terms of the Will in English to the deceased and the deceased indicated that she understood the terms perfectly. She deposed, “I can remember that the estate was to go to the deceased’s grandchildren and Eva Else Zimmermann. I recall that nothing was to be left to Raymond Bubko although he was given the right to live in one of the houses”. Inge Schmeiser further deposed that the deceased signed the Will in her presence and in the presence of Ellen Nicholls and that she saw the deceased sign the Will. She deposed that she then signed the Will as a witness as did Ellen Nicholls. She identified a copy of the Will which had been produced to the court by Eva Zimmermann and deposed that she was able to identify her signature on that document.

Inge Schmeiser was cross-examined by Raymond Bubko. Ms Schmeiser said that she had seen Raymond Bubko’s mother once when she counter-signed the Will and that was the first time that she had seen her. She said that Raymond Bubko had worked for her husband more than 20 years ago. She agreed that she was a friend of Eva Zimmermann. She was asked whether when she was in the dining room, did he walk to the bedroom to collect his mother. She said that she did not remember that, because she was focussed on his mother as she sat at the table and that she could not remember the deceased walking using a walking frame. She said that she did not take any notice and that all she paid attention to was the table and the Will and the signing. She said that she could remember his mother sitting at the table. Ms Schmeiser said that Raymond Bubko read the will to the deceased and everyone and that when it came to the deceased to sign the Will he stood to the right shoulder of his mother pointing with his finger to the document and to the position where he wanted his mother to sign and that the deceased signed the will. She was asked whether she was instructed by Eva Zimmermann what to say to which she replied, “No. I know I am my own person, I don’t need anybody to tell me what to say”. She was taken to that part of her affidavit where she said the deceased understood the terms of the Will perfectly and she was asked to explain this. She said, that the deceased did not object and that she seemed quite content. She was asked whether his mother said anything to which she replied that she did not know. The witness said again that after Raymond Bubko had read the Will he walked to his mother, that he was on her right, that she remembered that clearly, that he was by her shoulder and that Bubko put his finger on the document. She was asked whether he assisted his mother to sign, “the 19^th of September” 97 Will? She replied, “Well you merely pointed your finger to where you wanted her to sign”. The witness said that Raymond Bubko did not guide the deceased’s hand and that the deceased signed without his help. The witness said that after the deceased had signed, Raymond Bubko took her away, he took her out of the room. The witness said that she took the deceased’s place at the table, where she had signed, that she thought Mrs Nicholls signed first and that she was last. She said that before she signed the second page of the Will she glanced over the first page because she had heard it before when it was read out. She was asked, “Whether the first page of the Will that she was signing had a date on it?” She replied, “No only month and year but not the date”. She said there was no 19 written on it The witness said that she did not observe Eva Zimmermann taking the two pages and putting them in her bag. The witness said that Raymond Bubko stepped outside shook her hand and thanked her for being a witness. She further said that Eva Zimmermann did not instruct her what to say.

In re-examination the witness said that she looked at the second page of the Will and that she glanced through what was on that page before she signed it. She said she found nothing wrong with it. She was asked how soon it was after the deceased had signed the Will did she sign the Will as a witness. She replied that the deceased had left the table, and when asked whether there was a delay or did it happen straight away she said, “They didn’t wait long, she knew that much”.

After the completion of the witness’s re-examination and after Raymond Bubko had asked the witness further questions in cross-examination I addressed a number of questions to the witness. They were as follows:

“Q:     You said that Mrs Nicholls signed the Will before you?
A:     Yes.
Q:     When Mrs Nicholls signed the Will were you in the room?
A:     Yes.
Q:When Mrs Nicholls signed the Will was the deceased in the room?
A:I don’t think so but I am not sure.
Q:When you signed the Will was Mrs Nicholls in the room?
A:Yes.
Q:When you signed the Will was the deceased in the room?
A:Yes.

During further cross-examination of Inge Schmeiser by Raymond Bubko I asked Raymond Bubko, “Are you putting to her that when she signed the Will your mother was walking in the room?” To which Raymond Bubko replied to me, “No, she was already gone”. I then addressed a question to the witness, “First of all it is being put to you by Mr Bubko that when you signed the Will, it is being put, that his mother had left the room?” To which the witness replied, “Well, she left the place where I signed you know at the table”. I said, “Yes”. To which the witness further said, “She wasn’t there so possibly she left”. Addressing the witness I said, “Left the room?” To which the witness replied, “Yeah because I looked at the paper I didn’t look at any other person”.

There was also relied on by Eva Zimmermann an affidavit sworn by Darren John Stebbings on 24 March 2000. Raymond Bubko informed the court that he did not wish to ask any questions of Stebbings. Accordingly the court received this affidavit as the evidence of Stebbings. By his affidavit Stebbings deposed that at present he was the coordinator of the Magistrates’ Court of Victoria at Bendigo and that on 19 September 1997 he was employed as the Deputy Registrar of the Magistrates’ Court of Victoria at Geelong. He swore that he had no specific recollection of attending upon the defendant, Eva Zimmermann, on 19 September 1997 but that there had been produced and shown to him that which he identified as a true copy of the certified copy of the Will of Auguste Bubko. He deposed that the fact that his signature appeared on the copy certified Will indicated to him that he would have sighted the original Will of Auguste Bubko and arranged for a certified copy of the Will to be made on 19 September 1997. He further deposed that he was able to identify his signature on the certification clause shown on the Will.

Eva Zimmermann also relied on the affidavit of her solicitor, David Lindsay, sworn on 10 February 2000. By that affidavit Lindsay deposed that on 28 June 1999 there was published in the Geelong Advertiser newspaper a notice stating that Raymond Bubko intended to make application for a grant of probate of the will of the deceased dated 3 June 1976. He deposed that on 29 June 1999 he caused to be filed a notice stating the grounds of objection by Eva Zimmerman to the plaintiff’s application for probate of that will of the deceased. He deposed that he caused a copy of the notice to be served on Raymond Bubko by a letter dated 29 June 1999. Lindsay further deposed that on 1 July 1999 he had a telephone conversation with Raymond Bubko, who confirmed the due execution of the deceased’s will on “17 (sic) September 1997”. The date, 17 September, would appear to be an error. Lindsay further deposed that Raymond Bubko, however, denied that the will was given to him by Eva Zimmermann. Lindsay deposed that immediately after this conversation he made a note of the conversation. That note was exhibited to his affidavit, it read:

“Telephone attending Raymond Bubko. He says that he has now been discharged from bankruptcy. Advising that I am already aware of that and have searched this. He says that the Will was drawn in 1997 to permit him to reside in the house and was only done because at that stage he was a bankrupt. He says the Will was supposed to contain a provision that the Will was cancelled when he came out of his bankruptcy. Mr Bubko says the Will of 1997 was taken by his ex-wife Eva and that she did not ever return it to him and that he does not have a copy of it. He will write and ask for a copy. Advising that I did not want to play his game and that I would not acknowledge that he did not have a copy of the Will. Advising that we will be issuing the summons almost immediately.”

In cross-examination it was put to Lindsay that after Lindsay had said that he did not want to play his game Bubko said this is no game or words to that effect to which the witness replied “he may have”.

During the opening of the case on behalf of Eva Zimmermann, the court was informed by her counsel that Ellen May Nicholls, who was a witness to the deceased signing the will, had sworn an affidavit on 11 February 2000 but that he was not in a position to call her as a witness. The court was informed that his instructing solicitor had spoken to Ellen Nicholls who had informed his solicitor that she would not be available as a witness and the reason for not being available was that she had recently undergone surgery. Raymond Bubko informed the court that if the affidavit of Ellen Nicholls was to be relied on he wished to cross-examine her, stating that the will that was seen on 19 September 1997 had on the first page the figure 19 written in the date and that the first page of the will now presented was not the piece of paper that was before his mother on 19 September 1997. Raymond Bubko informed the court that if Eva Zimmermann sought to rely on the affidavit of Ellen Nicholls he would like to cross-examine her especially as to the date and the signature on the will. There was discussion with counsel for Eva Zimmermann as to whether the affidavit of Ellen Nicholls could be relied on if she was not available for cross-examination. It was submitted by counsel for Eva Zimmerman that the fact that Ellen Nicholls was not available for cross-examination did not mean that the affidavit could not be used. After the witness, Lindsay, had completed his evidence, counsel of Eva Zimmermann informed the court that he was not calling Ellen Nicholls as a witness to confirm her affidavit. Counsel however stated that although Ellen Nicholls was not being called as a witness did not mean that her affidavit could not be relied on but rather the question to be addressed was the question of weight that may be given to those matters deposed by Ellen Nicholls in her affidavit, having regard to the fact that the matters deposed to had not been tested in cross-examination. Again at that point in the trial I asked Raymond Bubko whether, if Eva Zimmermann wanted to rely on the affidavit of Ellen Nicholls, did he want to ask her any questions. He informed the court that he would ask her many more questions than originally anticipated because Mrs Schmeiser said that she could not remember the layout of the dining room, “which is very crucial to all the signing and walking away and walking in etc and location of witnesses”. He said that there were a number of questions that he would want to ask her, as the fact was that when she was the first signatory on the will his mother must have left the room, because this was the only place she could sign, so his mother walked out of there and Mrs Nicholls was sitting there to sign the will, so his mother couldn’t see her because she was already gone – into her bedroom. He said that he wanted to raise that issue “very much… because this becomes now an exceedingly crucial matter”. Counsel for Eva Zimmermann informed the court that he did not intend to call Ellen Nicholls as a witness to affirm her affidavit but would seek to rely on it. I put over to the end of evidence the determination of the issue as to whether Eva Zimmermann could rely on the affidavit of Ellen Nicholls in the circumstances then before the court and if it could be relied on what if any weight should be given to its contents. Raymond Bubko indicated that he was content for that course to be followed. At that point counsel for Eva Zimmermann closed her case.

Raymond Bubko then filed with the court an affidavit affirmed by him on 26 March 2001 in which he stated that he wished that Ellen Nicholls be called at some later date as “she could clarify many confused versions from Eva’s affidavits”. I enquired of counsel whether Ellen Nicholls was available or likely to be available in the near future. I was informed by counsel that it did not seem that she would be available. I was further informed that when Ellen Nichols was contacted by his instructing solicitor some weeks before, that she had said she was going into hospital the previous Monday and that both he and his instructing solicitor were under the impression that it was to be a lengthy stay. However, he informed the court that his instructing solicitor had telephoned the home of Ellen Nichols on the previous Friday, 24 March 2001. He said that she answered the phone and she informed his solicitor that she had been in hospital and that she had to go back again on that day, 26 March 2001, but she did not know for how long. Counsel further informed the court that Ellen Nicholls indicated to his solicitor that she was elderly, that she was ill, she wanted to have nothing to do with the matter any further and that when she was informed that she could be subpoenaed she had said that she did not care and further said words to the effect that it wouldn’t make any difference to her.

In conducting his case Raymond Bubko relied on a number of affidavits sworn by him. He informed the court that he proposed to give evidence appreciating that counsel for Eva Zimmermann had the right to cross-examine him. In the three proceedings Raymond Bubko had filed numerous affidavits sworn by him. With respect to his application for a grant of probate of the will of the deceased made on 3 June 1976 there was sworn by Raymond Bubko on 22 June 1999 an affidavit of searches and publication of advertisement. There was further sworn on that day an affidavit by Raymond Bubko deposing that the deceased had died on 17 April 1999, that she had left a will dated 3 June 1976 which was unrevoked. That will was exhibited to his affidavit. He deposed that he was named as the executor appointed by the will and he identified those persons in the presence of whom the will was executed by the deceased. There was also sworn by Raymond Bubko an affidavit of 19 July 1999 relevant to his mother executing a will on 3 June 1976 and the same being witnessed by two persons identified in that affidavit.

There was also sworn by Raymond Bubko an affidavit on 5 November 1999 which was filed with the court. That affidavit contained many matters which were not relevant to the proceedings before the court. In that affidavit Raymond Bubko deposed that in July 1997 he was declared bankrupt. He deposed that his bank books were seized and three properties owned by him were also seized. He deposed that the deceased bought his half share of the property at 18 Latrobe Boulevard, South Geelong. He deposed that with respect to a property owned and previously occupied by him at Batesford he had been allowed four months to remove personal items from the property. He deposed that on 2 September 1997 Eva Zimmermann came to the Batesford property where he was working and she talked to him about a “new will”. He deposed that Eva Zimmermann explained to him that if his mother should die while he was still bankrupt and her property became his property the government would seize the house and throw him out onto the street. He deposed that to help him to retain the properties his mother should sign a new will making his sons Ronald and Fred the beneficiaries of the will and that his sons would be caretakers of the property for his benefit until he came out of bankruptcy. He deposed that Eva Zimmermann told him that she had legal advice on how to write a new will. He deposed that on 4 September 1997 Eva Zimmermann telephoned him and told him that the will was typed and that on that day she gave him a typed “A4” page explaining to him that both of them should be executors of the will and that she also should be a beneficiary and that she would make sure that both sons adhered to returning the properties to him when he was out of bankruptcy. He deposed that he then proceeded to retype a will from that prepared by Eva Zimmermann and that he wrote and re-wrote will proposals. He deposed that on 15 September he had completed a suitable “probate delay clause” and he printed his “fifth proposal” typing on the bottom a note “please use the printed wills form from bookshop”. He deposed that Ellen Nicholls, a neighbour from Batesford, had agreed about two weeks before 19 September 1997 to witness his mother’s will at 12.30 that day. He deposed that on that day at about 12.30 Ellen Nicholls arrived and that Eva Zimmermann and another lady and also Natalie arrived at the deceased’s home. He deposed that Eva Zimmermann gave him the typed will but it was on two pages she stating that she could not type the requested long form and that he took the front page of the will to his mother’s bedroom and partially read it to her. He deposed that it was his “fifth proposal” and that after his mother arrived in the dining room, using her walking frame, she sat down at the side of the table, he laid the “new will” on the table and guided her hand to the correct spot on the will. He deposed that his mother signed both pages as he guided her hand to it and that the other three persons did not see his mother signing the will, as his body totally blocked their view as they were all standing behind him and talking to Natalie. He deposed that he helped his mother get to her bedroom and when he returned the witnesses had already signed the will and that Eva Zimmermann took the will with her for “safe keeping” as he may lose it. Raymond Babko further swore that after his mother’s death Eva Zimmermann came to him and demanded to see his mother’s original will and also her bank books. He asked why as he was the primary executor of the second will and he saw no urgency to commence probate as he may get his bankruptcy cancelled. He deposed that Eva Zimmermann became very agitated and furious, that she rushed away and that some days later he received a letter from her solicitors advising that Eva Zimmermann would be the executor of the second will and that she wanted to obtain probate of it as soon as possible and that he should deliver all documents and previous wills that he had. He deposed that he did not deliver anything.

Further by that affidavit Raymond Bubko deposed that “Eva’s will” was a fraud, that they had an agreement prior to signing the will that Eva, as second executor, and Ronald and Fred the beneficiaries, would be caretakers of his mother’s property while he was a bankrupt and then return the properties to him. Further he deposed that his mother had signed both pages of the will and that the witnesses had signed one page.

In a further affidavit sworn by Raymond Bubko on 19 July 2000 he deposed that in August 1997 Eva Zimmermann came to the property at Batesford and suggested that a new will be signed very urgently by his mother to stop the tax office from seizing his mother’s estate when she died and that the two sons would be beneficiaries of the estate and that she and the two sons would become caretakers of his mother’s estate for his benefit. He deposed that she also said that he would be appointed the prime executor of the will and that he could delay probate indefinitely if his mother died before he was released from bankruptcy. In that affidavit he deposed that on 4 September 1997 Eva Zimmermann delivered to him at Batesford the first proposal of the new will, that he read it at home and was disappointed as she had included herself as second executor and one third beneficiary. He deposed that when she next came to the Batesford property he complained about the changes and that Eva Zimmermann had said that as equal “sharers” of the estate she would insist that the two sons obeyed the agreement made by her and that that sounded good then. He deposed that he asked her for a written contract, that she agreed to type up all the details of their verbal agreements, but he had never received the written agreements from her. He further deposed in that affidavit that on 19 September 1997 when Eva Zimmermann brought the new will to the property in which his mother lived he took it to his mother’s room and while she was dressing he translated the first page to her. He deposed that when his mother had taken her seat in the dining room he had taken the first page of the will, read part of it, and then bent over facing his mother, that the witnesses could only see his back, that he guided his mother’s hand to the correct locations on the will and that she signed both pages of it. He deposed that he did not see the witnesses sign the will as he helped his mother to walk to her bedroom and that when he returned Eva Zimmermann had the new will packed in her bag, for “safe keeping”.

In an affidavit sworn by Raymond Bubko on 10 July 2000 he deposes that on 3 July 1999 he received from Eva Zimmermann’s solicitors a photocopy of the “new will” which Eva Zimmermann would be presenting to the court. He deposed that it was the “original = first proposal” that Eva Zimmermann had delivered to him on 4 September 1997. He deposed that, “Eva must have exchanged the first page of that first proposal of hers that was not dated for the first page of my last proposal which was dated [19] and which was signed by my mother. As my mother Augusta Bubko has signed both pages. But the photocopy of the first page is different and it has no signatures”. He has further deposed in that affidavit that the will signed by his mother was signed on both pages while the witnesses could not see her signing it. He further deposed that the first page of the copy will in respect of which Eva Zimmermann now seeks a grant of probate has no date on it and no signature of his mother and that the first page had been exchanged by Eva Zimmermann prior to it being photocopied in the Geelong Court.

There was further filed with the court on 3 August 2000 an affidavit sworn by Raymond Bubko on 19 July 2000. In that affidavit although the same is different in form to that sworn by Raymond Bubko on 5 November 1999 he deposes to the same facts and matters as in the previous affidavit.

There was also filed with the court on 5 March 2001 an affidavit of Raymond Bubko sworn on 2 March 2001. In that affidavit he deposed to the facts previously sworn to by him as to the preparation in September 1997 of his mother’s will. He again deposed to the fact that when his mother signed both pages of the will the witnesses were standing behind him and could not see his mother’s hand. Again he deposed that he did not see the witnesses sign the will as he helped his mother to walk to her bedroom and that when he returned Eva Zimmermann had the will packed into her handbag and that she took it for safe-keeping. Many paragraphs of that affidavit are argumentative in form and do not contain statements of fact, again, many paragraphs of that affidavit contain matters that are not relevant to issues in these proceedings.

Raymond Bubko gave evidence and swore that the contents of each of his affidavits were true and correct. In cross-examination he said that as at 19 September 1997 he was aware that a will had to be signed and that it had to be witnessed. He said that on that day Mrs Nicholls and Mrs Schmeiser were at the house to be witnesses. It was put to him that he had given evidence that he had placed himself in a position that neither Mrs Nicholls nor Mrs Schmeiser were able to see the will signed. He said that he did not realise this and came to the realisation that he might have obstructed their view later on when he “was defrauded”. He then said that he realised this more or less straight away after his mother had signed and that he had turned around and apologised. He said that he was a polite person. He was asked whether it was straight away, as soon as his mother had signed the will, that he had turned around and realised these people might not have seen his mother sign. He denied that, saying that he did not realise that this was important, that his mind did not work. He said that he realised that he was standing with his back to the people who had visited, who came into the house, which was very impolite, and that, in effect, he said, “I am sorry that I turned my back to you which is very impolite. I apologise for this”. He was asked whether he was satisfied that the witnesses had seen the will signed. He replied that he did not care one way or the other. He agreed that it was a formal document and that he knew for it to be valid it had to be witnessed. He was asked, “And you wanted this will that your mother was making to be a valid document?” He replied, “No”. Raymond Bubko said that he translated the document to his mother in the bedroom and then brought her into the dining room. When asked why he brought her into the dining room he replied, “to sign the will”. Raymond Bubko agreed that on 19 September at the house where the will was signed, before he left that day, he took no steps to suggest to anybody that the process of the execution of the will should be repeated. When it was put to him, that he was satisfied on that day that the necessary formalities had been satisfied, he said that he never thought about it. Raymond Bubko said that there were two pages of the will that his mother signed. When asked what was on the first page of the will he said that it stated that he and Eva Zimmermann were the executors of the will and that from memory the two properties one at 18 Latrobe Boulevard and the other at 15 Moyston Grove, Corio were to be divided equally between Eva Zimmermann, Ronald Bubko and Fred Freeman, and that he could, for the term of his life, “live in 18 Hopkins Street and 18 Latrobe Boulevard which was the same thing” and that he would be responsible for maintaining the property and that underneath that the will said, note, probate can or may be delayed and that then it said that it was the last will and testament. He said that he had written 19 in September 1997. He said the only difference between the will that had been brought forward in the court and that which was signed was that he had written the figure 19 and that it contained the sentence, “Note: probate may be delayed“ or ”Note: probate can be delayed”. He said that after the two persons had signed, he returned and that Eva Zimmermann was just about to put the two pages into her bag. When asked why he did not make arrangements to get a copy of the will he replied, “I wasn’t interested in this will”. The witness was shown the document exhibited to the affidavit of Eva Zimmermann sworn 10 February 2000 and marked EEZ2 which Eva Zimmermann had deposed was the document that Raymond Bubko gave to her proposing that it should replace the first page of the deceased will. He said that he typed it on his computer. He said that it was a proposal he had typed as a better will from the first proposal and that Eva took it and that was the end of it. He denied that he told Eva Zimmermann to substitute that page and said that it was too complicated, he stuck to the original will and insisted that Eva Zimmermann put in the clause, “Note: probate may be or can be delayed”. Raymond Bubko said that his mother had signed the first page of the will, that he had put the figures 19 on the first page and that his mother signed just below that and that she also signed the second page.

After Raymond Bubko had completed his evidence I reminded him that he had, earlier that day, said he wanted to call Mrs Nicholls. I asked him whether he still wanted her called as a witness, that another date could be fixed and that if she did not want to come he would have to take steps to subpoena her to give evidence. He said he would not do that. He said that he accepted 100 percent that Mrs Nicholls had been in hospital the previous Monday and said that he accepted that she had said to the solicitor that she did not want to have anything to do with it. He said that he did not require the solicitor to give evidence about that matter.

At the conclusion of the evidence of Raymond Bubko, the question arose as to whether, in the case presented on behalf of Eva Zimmermann, that is that there should be granted to her probate of the copy will, bearing the stamp of Stebbings on which is dated 19/9/97, that the court should have regard to the affidavit of Ellen Nicholls sworn on 11 February 2000 notwithstanding that she was not called as a witness and no opportunity was given to Raymond Bubko to cross-examine her.

At this point of the trial counsel for Eva Zimmermann informed the court that he did not seek to rely on the affidavit of Ellen Nicholls as part of his case. Rather he submitted that on the evidence before the court even if the court was not satisfied that when the witnesses attested and signed the will, on 19 September they were in the presence of the deceased and that the will had not been executed in the manner as required by the Wills Act 1958 that the court should be satisfied that the deceased intended the document, a copy of which is now put before the court, to be her will. Counsel submitted that if the court found that such was the intention of the deceased reliance was able to be had to s. 9(1)(a) of the Wills Act 1997 and the court was able to and should admit to Probate the copy will now before the court bearing the stamp signed by Stebbings and bearing the date 19/9/97.

Section 7 of the Wills Act 1958 as was applicable on 19 September 1997 provided:

“No will shall be valid unless it shall be in writing and executed in the manner hereinafter mentioned (that is to say):- it shall be signed at the foot or end thereof by the testator or some other person in his presence and by his direction and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.”

By s. 51 of the Wills Act 1997 the Wills Act 1958 was repealed. By s. 9(1)(a) of the Wills Act 1997 it is provided:

“(1)The Supreme Court may admit to probate as the will of a deceased person –
(a)a document which has not been executed in the manner in which a will is required to be executed by this Act; or
(b)……..

if the Court is satisfied that the person intended the document to be his or her will.”

By Part 6 of the Wills Act 1997 there is provided transitional and consequential provisions relevant to the Act. By s. 52(1) of the Wills Act 1997 it provided:
“(1)This Act, other than ss. 4, 8, 9, 10, 12, 31, 33, 34, 35, 37, 38, 40, 41, 42, 47, 48 and 49 applies only to wills made on or after the commencement of this section.”

By s. 52(4) of the Wills Act 1997 it is provided:
“(4)Sections 4, 8, 9, 10, 31, 33, 34, 35, 37, 38, 40, 41, 42, 47, 48 and 49 apply to wills whether or not they are executed before, on or after the commencement of this section, where the testator dies on or after that commencement.”

The Wills Act 1997 was assented to on 2 December 1997. Sections 9 and 52 of the Act together with other sections of the Act came into operation on 20 July 1998.

By virtue of sub-ss. 1 and 4 of s. 52 of the Wills Act 1997, s. 9 of that Act applies to wills executed before the commencement of s. 52 where the testator dies on or after the commencement of s. 52. The deceased, Auguste Bubko, died on 7 April 1999, after the commencement of s. 52 of the Wills Act 1997. Accordingly, this Court has power to admit to probate as a will of a deceased person a document which has not been executed in the manner in which a will is required to be executed under the Wills Act 1997 if the court is satisfied that the person intended the document to be his or her will. Section 7 of the Wills Act 1997 provides how a will should be executed. Section 7(1) provides:

“(1) A will is not valid unless –
(a)it is in writing, and signed by the testator or some other person, in the presence of, and at the direction of the testator; and
(b)the signature is made with the testators’ intention of executing a will, whether or not the signature appears at the foot of the will; and
(c)the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d)at least two of the witnesses attest and sign the will in the presence of the testator but not necessarily in the presence of each other.”

There was no evidentiary issue in this case that at the time that the deceased executed the document in the dining room of her home on 19 September 1997 there was present Raymond Bubko, Eva Zimmermann, Ellen Nicholls and Inge Schmeiser, the last two persons being the persons who signed and attested the will as witnesses.

It was submitted by counsel on behalf of Eva Zimmermann that even if the court was not satisfied that the two witnesses did attest and sign the document signed by the deceased on 19 September 1997 in the presence of the deceased, the court should be satisfied that the document signed by the testator in their presence was intended by Auguste Bubko, the deceased, to be her will and that the court should be satisfied that the copy document now sought by Eva Zimmermann to be admitted to probate is a copy of the document signed by the deceased on 19 September 1997 in their presence. When regard is had to the reasons put before the court by counsel on behalf of Eva Zimmermann as to why Ellen Nicholls was not called as a witness, which reasons were accepted by Raymond Bubko, the fact that she was not called as a witness should be regarded as of no significance, that no inference should be drawn consequent upon her failure to be called as witness and that it should not be taken into account against Eva Zimmermann in deciding whether to accept her evidence that the two witnesses attested and signed the will in the presence of the deceased: Jones v Dunkel[1]; O’Donell v Reichard[2].
[1](1959) 101 CLR 298.
[2][1975] VR 916 at 929.

The factual issues that must be addressed and determined are:

§ Is the copy document which Eva Zimmermann now seeks to be admitted to probate a copy of the document signed by the deceased on 19 September 1997.
§ Did the deceased sign the will on 19 September 1997 with the intention of executing a will and intending that the document be her will.
§ Did the witnesses Ellen Nicholls and Inge Schmeiser attest and sign that document in the presence of the testator.

As to the first matter referred to it was contended by Raymond Bubko that the copy document now put before the court and sought to be admitted to probate by Eva Zimmermann is not a copy of the document signed by the deceased on 19 September 1997. He asserted that the document signed by the deceased on that day by its first page was different from the copy now put before the court. His evidence was that it was different in that the document signed by the deceased on 1997 had the figures 19 inserted on the first page, it was signed or initialled by the deceased on the first page and it contained what he described as a delayed probate clause. In my view the evidence of Ronald Bubko touches on these matters and it is significant. It was apparent that Ronald Bubko was uncomfortable in giving evidence in the present proceedings. I accept him as an honest witness. I accept his evidence that his father, Raymond Bubko, after the death of the deceased, spoke to him and confirmed that he had the original will. I accept the evidence of Ronald Bubko that his father told him that he wished to change the first page of the will, to change it so that he, Raymond Bubko, would become a beneficiary. The evidence of Ronald Bubko supports and corroborates the evidence of Eva Zimmermann that on 19 September 1997 she gave the original will to Raymond Bubko. Notwithstanding that Raymond Bubko confirmed to his son, Ronald Bubko, that he had the original document it was not forthcoming by Raymond Bubko. I accept the evidence of Eva Zimmermann that the document which she showed to Stebbings, a copy of which was made and certified by Stebbings to be a copy of the original document, was the document signed by the deceased on 19 September 1997. I do not accept the evidence of Raymond Bubko that the first page of the document signed by the deceased on 19 September 1997 was initialled or signed by her, that it had the figure 19 written in the date before the word September and that it contained another clause. I accept the evidence of Eva Zimmermann that the copy document which she now seeks to be admitted to probate is a copy of the document signed by the deceased on 19 September 1997.

I next turn to the issue whether on 19 September 1997 when the deceased signed the document she did so with the intention of executing a will and with the intention that the document be her will.

The evidence of Inge Schmeiser was that when the deceased came to the dining room and was seated, Raymond Bubko read in English the terms of the will to the deceased who then indicated that she understood the terms perfectly. In the affidavit sworn by Eva Zimmermann on 10 February 2000 she deposed that on 19 September 1997 when she, the deceased, her grand-daughter Natalie Freeman, Raymond Bubko, Ellen Nicholls and Inge Schmeiser were present at the deceased’s home Raymond Bubko read the will to the deceased in English in the presence of such other persons, that the deceased was unable to read because her eyesight was failing, however, the deceased indicated that she agreed with the terms of the will and thereafter she signed the second page. The persons, Ellen Nicholls and Inge Schmeiser, were present at the deceased’s home on 19 September 1997 particularly to witness the document. Raymond Bubko gave evidence that before bringing his mother into the dining room where the other persons were assembled he read the document to the deceased in her bedroom. The very terms of the document as read to and which I accept were understood by the deceased were in the nature of a will. By the opening paragraph of the document it stated that, “This is the last will and testament of me Auguste Bubko”. Paragraph numbered 1 thereof stated, “I hereby revoke all former wills and testamentary dispositions heretofore made by me”. Paragraph numbered 4 of the document stated, “I declare this to be my last will and testament”.

I am satisfied that on 19 September 1997 when the deceased signed the original of the documents a copy of which is now sought by Eva Zimmermann to be admitted to probate, she did so with the intentions of executing a will and that she intended the document to be her will.

There was no dispute that the document signed by the deceased on 19 September 1997 was signed by her in the presence of Inge Schmeiser, Ellen Nicholls and Eva Zimmermann. Raymond Bubko’s evidence was to the effect that when the deceased signed the original document he was standing directly in front of her and the signing of the document could not have been witnessed by Inge Schmeiser and Eva Zimmermann. I accept their evidence that when the deceased signed the document Raymond Bubko was standing to the right hand side of the deceased pointing to where she should sign the document and she was observed by both of them to sign the document. The question that I now address is whether the witnesses Ellen Nicholls and Inge Schmeiser attested and signed the will in the presence of the testator. The affidavit of Inge Schmeiser sworn on 10 February 2000 was silent as to whether, when she and Ellen Nicholls signed the will as witnesses they were in the presence of the deceased. The evidence of Inge Schmeiser as to this matter, in my view, demonstrated that she did not have a clear recollection as to whether she and/or Ellen Nicholls were in the presence of the deceased when they attested and signed the will. I put to one side her evidence in this matter and do not have regard to it in determining this issue.

In the affidavit of Eva Zimmermann sworn on 30 November 2000 and in respect of which she gave evidence at the trial that the contents were true and correct she deposed: “The testatrix only signed her name once, as it now appears at the conclusion of the will beside the word ‘signature’. The witnesses also only signed in one place. They signed while the testatrix was still in their presence. Natalie had a long conversation with the testatrix at the kitchen table. The testatrix was still there when I and the others left the house”. As I have previously referred to I accept that the copy document now sought to be admitted to probate by Eva Zimmermann is a copy of the original document signed by the deceased on 19 September 1997. I have rejected the evidence of Raymond Bubko that the first page of the document signed by the deceased on 19 September was different from the first page of the copy document produced by Eva Zimmermann in these proceedings. I accept that Eva Zimmermann gave a truthful and accurate account of the events which occurred on 19 September 1997 concerning execution of the will by the deceased and the signing of the will by the witnesses Ellen Nicholls and Inge Schmeiser. I accept the evidence of Eva Zimmermann that when the witnesses each signed the will the testatrix was still in their presence. Having reached this conclusion, it is not necessary for me to have regard to the provisions of s. 9(1)(a) of the wills Act 1997 in determining whether the copy will of the deceased, the original of which was executed by her on 19 September 1997, should be admitted to probate.

Accordingly, the conclusion that I have reached in this case is that on 19 September 1997 in the presence of Raymond Bubko, Eva Zimmermann, Ellen Nicholls and Inge Schmeiser, the deceased, Auguste Bubko, signed the document a copy of which is exhibited to the affidavit of Eva Zimmermann sworn 10 December 1999 which document was signed by the deceased in the presence of Ellen Nicholls and Inge Schmeiser and thereafter and on the same day the witnesses attested and signed the document in the presence of the deceased. I am satisfied that the deceased intended that document to be her will. I am satisfied that on 19 September 1997 after Eva Zimmermann had made a copy of the will signed by the deceased and the witnesses, Ellen Nicholls and Inge Schmeiser, that she gave to Raymond Bubko the original document and that he had the same subsequent to the death of the deceased. Whether he still has that document I am unable to determine. On reaching these conclusions the application of Raymond Bubko for a grant of probate of the will of the deceased dated 3 June 1976 must be dismissed as the will made by the deceased on 19 September 1997 specifically revoked that will. I am satisfied that the will of the deceased made by her on 19 September 1997 (a photocopy of which is the document marked as Exhibit “B” to the affidavit of Eva Zimmermann sworn 10 December 1999) should be admitted to probate and that probate of that will be granted to Eva Zimmermann subject to compliance by her of any requirement of the Registrar of Probates. As to the proceedings brought by Eva Zimmermann pursuant to s. 15 of the Administration and Probate Act, I am of the view that had Eva Zimmermann not made the separate application that she be granted probate of the will of the deceased made on 19 September 1997 (the photocopy of which I have identified) it may have been appropriate for the court to order on the proceedings taken pursuant to s. 15 of the Administration and Probate Act, that probate of the will of the deceased made on 19 September 1997 be granted to Eva Zimmermann. However, having regard to the fact that I have concluded that on the separate application of Eva Zimmermann that it should be ordered that probate of that will of the deceased should be granted to her, it is not necessary and not appropriate that a like order should be made in the proceedings taken under s. 15 of the Administration and Probate Act. Having reached the conclusions that on 19 September 1997 Eva Zimmermann gave to Raymond Bubko the original of the will of the deceased made that day and that after the death of the deceased Raymond Bubko had possession of that will, I have further concluded that it was appropriate for Eva Zimmermann to take proceedings under s. 15 of the Administration and Probate Act. Those proceedings should be struck out reserving to Eva Zimmermann and Raymond Bubko, to apply on written notice for an order that they be reinstated. However, Raymond Bubko should pay the costs of those proceedings. I make orders in accordance with the following minutes.

1.That the application of Raymond Bubko for a grant of probate of the will of the deceased, Auguste Bubko, late of 18 Latrobe Boulevard, South Geelong who died on 19 April 1999 at Geelong, which will is dated 3 June 1976, be dismissed.
2.That in the proceeding referred to in paragraph 1 hereof, the costs of Eva Zimmermann of and incidental to that proceeding including any reserved cost, be paid by the Raymond Bubko.
3.That subject to compliance by Eva Zimmermann with any requirements of the Registrar of Probates, probate of the will of the deceased made on 19 September 1997 (a photocopy of which is marked as exhibit “B” to the affidavit of the executrix, Eva Zimmermann, sworn 10 December 1999 and filed in support of her application for probate thereof) be granted to Eva Zimmermann.
4.That the costs of and incidental to the proceeding, being the application of Eva Zimmermann for the grant of probate of the will of the deceased made on 19 September 1997, other than any costs usually incurred in an uncontested application for probate, including any reserved costs be paid by Raymond Bubko.
5.That in the proceeding of Eva Zimmermann for a grant of probate of the will of the deceased made 19 September 1997, there be reserved liberty to apply on written notice.
6.That in the proceedings numbered 5507 of 2000 being in the matter of the application brought by Eva Zimmermann against Raymond Bubko pursuant to s. 15 of the Administration and Probate Act 1958 it be ordered:
(a)That the proceedings be struck out, reserving to the parties liberty to apply, on written notice, for an order that the proceedings be reinstated.
(b)That the costs of the plaintiff, Eva Zimmermann, of and incidental to such proceeding including any reserved costs be paid by the defendant, Raymond Bubko.

7.That an authenticated copy of these orders be placed on and be part of the file in each proceedings referred to in these orders.

In reserving liberty to each party to apply on written notice as provided by paragraph 5 of these orders I have regard to the submissions made by counsel for Eva Zimmermann that pursuant to the terms of the will of the deceased made on 19 September 1997 there is created “settled land” because of the life interest left to Raymond Bubko with respect to the land situated and known as 18 Latrobe Boulevard, South Geelong and that in the event of such land being sold during the lifetime of Raymond Bubko pursuant to the powers under the Settled Land Act 1958 there would need to be two executors or trustees of the will or estate of the deceased which matter would need to be attended in the event of such circumstance occurring. I have reserved liberty to apply by paragraph 6(a) of these orders in the event of it becoming known in the future, as to the whereabouts of the original will of the deceased made on 19 September 1997.

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Bubko v Zimmermann [2001] VSC 137

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Luxton v Vines [1952] HCA 19

[2001] VSC 137

11 May 2001