Cahill v Rhodes

[2002] NSWSC 561

CITATION:	Cahill v Rhodes/Rhodes v Cahill [2002] NSWSC 561
CURRENT JURISDICTION:	Equity Division Probate List
FILE NUMBER(S):	SC 103878/01; 105651/01
HEARING DATE(S):	11/06/02-14/06/02
JUDGMENT DATE:	10 July 2002
PARTIES :	Robyn Denise Cahill (Plaintiff/Defendant) Lee-Anne Michelle Rhodes (Defendant/Plaintiff)
JUDGMENT OF:	Campbell J

COUNSEL :	J R Wilson; K Sainsbury (for Cahill) R Winfield (for Rhodes)
SOLICITORS:	Willis & Bowring (for Cahill) Stephen Marks (for Rhodes)
CATCHWORDS:	SUCCESSION - WILLS PROBATE AND ADMINISTRATION - probate and Letters of Administration - requirement for probate of a lost Will - effect of section 18A Wills, Probate and Administration Act 1898 on those requirements - evidence for probate of lost Will - presumption of destruction with intention of revocation if Will not found on Testator's death - manner of operation of presumption - payment of costs in probate suits
LEGISLATION CITED:	Evidence Act 1995 (Cth) Wills, Probate and Administration Act 1898
CASES CITED:	Curley v Duff (1985) 2 NSWLR 716 Finch v Finch (1867) LR 1 PD 371 Re Estate of Paul Frances Hodges Deceased; Shorter v Hodges (1988) 14 NSWLR 698 Sugden v Lord St Leonards (1876) 1 LR 1 PD 154 Whiteley v Clune (No2); The Estate of Brett Whiteley, Powell J, Supreme Court of NSW, 13 May 1993, unreported
DECISION:	Deceased died intestate; Grant of Letters of Administration of his intestate estate to Deceased's mother

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

CAMPBELL J

10 JULY 2002

103878/01 ROBYN DENISE CAHILL v LEE-ANNE MICHELLE RHODES
105651/01 LEE-ANNE MICHELLE RHODES v ROBYN DENISE CAHILL

JUDGMENT

1 HIS HONOUR: Daniel John Cahill ("the Deceased") died on 11 April 2001, aged 24 years. On 20 August 1997, he had made a Will in which he left the whole of his estate to Lee-Anne Michelle Rhodes ("Miss Rhodes"), who at that time he was intending to marry. The question for decision in this case is whether that Will was ever replaced by another Will, and, if so, whether that replacement Will continued on unrevoked until the time of the Deceased's death.

2 The Deceased's mother, Robyn Denise Cahill ("Mrs Cahill"), contends that the Deceased executed a Will in August 1999, which made her the sole beneficiary, but that that Will has been lost. In proceedings 103878 of 2001, Mrs Cahill seeks probate of this lost Will, or alternatively a grant of administration of the estate of the Deceased if he had died intestate. Miss Rhodes seeks probate of the Will made on 20 August 1997, in proceedings 105651 of 2001. Those two sets of proceedings have been heard together.

The Relationship Between the Deceased and Miss Rhodes

3 The Deceased and Miss Rhodes met in 1995. They commenced a sexual relationship soon after. In June 1997 the Deceased enlisted in the Army. After training, he was allotted duties in the Q Store. On 20 August 1997 the Deceased executed a Will, at Kapooka, the relevant features of which are

· it stated it was made in contemplation of his marriage to Miss Rhodes

· it appointed Miss Rhodes as executor and trustee, “but if this appointment fails to take effect" appointed Mrs Cahill as executrix and trustee

· it gave the whole of his estate to Miss Rhodes, but “if this gift fails to take effect" gave the whole of his estate on trust to divide between Mrs Cahill and the Deceased’s brother Jason.

4 On 1 September 1997 the Deceased and Miss Rhodes were engaged.

5 Over the period from when they had begun their relationship they had purchased some furniture and other household items. In September 1997 a car was registered in their joint names, and they made application to the Commonwealth Bank for a joint loan of $15,000. In October 1997 they opened a joint bank account. On 23 November 1997 Miss Rhodes made a Will, which left all her estate to the deceased, apart from an emerald ring which she left to a friend. (There were also some provisions about what was to happen if there were children, or if the Deceased and children did not survive Miss Rhodes, but these are not presently relevant.) This Will was one which Miss Rhodes composed herself, and wrote out in her own handwriting, using a Will form of the kind one can buy from a legal stationer or a newsagent. This form is one which Miss Rhodes’ mother already had in her house.

6 On 23 November 1997 the Deceased and Miss Rhodes submitted a form to the Army, seeking recognition of them as being in a de facto marriage. For that purpose, they annexed documentation which aimed to show that they were sharing their life in various respects. Amongst the documentation annexed were the Will which the Deceased had executed on 20 August 1997, and the Will which Miss Rhodes executed on 23 November 1997.

7 In late January or early February 1998, the Deceased and Miss Rhodes began living together in Army married quarters. Miss Rhodes started a university course, being financially supported by the Deceased.

8 By June of 1999 there were some problems with the relationship. Some of these related to some difficulties with the Deceased’s family (in particular, the Deceased’s brother Michael was living with them, and this caused some strain. As well, both Michael, and the Deceased’s sister April Edwards, were at that time not on good terms with Mrs Cahill, and the Deceased and Miss Rhodes were not letting Mrs Cahill know that they were in contact with Michael and April, and Miss Rhodes did not like the deception involved in this.) As well, the Deceased got very angry from time to time, which Miss Rhodes also did not like. A further complication arose when Miss Rhodes came across the Deceased telephoning a woman called Shenoah, and found out that the Deceased had had a sexual encounter with her.

9 In the course of June 1999, Miss Rhodes and the Deceased decided to separate. They could not separate immediately, however. They moved into separate bedrooms in the house. It may be – it is not necessary for me to make a finding one way or the other concerning this – that they continued a sexual relationship notwithstanding the separate bedrooms, in the period before they moved out of the house.

10 On 26 July 1999 the Deceased saw an employee at the Community Defence Organisation. That employee’s note said, in the part of a standard form which concerned the difficulties for which help was sought, “Relationship breakdown. Don’t want relationship counselling. However the soldier indicated Lee-Anne might want to speak to someone”.

11 Also on 27 July 1999 both the Deceased and Miss Rhodes executed an Army document which was a, “Breakdown of Marriage Removal and/or Transport Assistance Request”.

12 In late July or very early August the Deceased and Miss Rhodes left the married quarters. The Deceased moved into single quarters at the Army base. Miss Rhodes moved in with friends, May and Tim Dare. She stayed there until October 1999. In October 1999 she moved to stay with Danielle Scott-Flanders and her husband. In November 1999, she started living in a caravan at the rear of the house of the Deceased’s sister, April Edwards.

13 When they moved out of the married quarters, the Deceased and Miss Rhodes decided how they would divide the household items which they had accumulated. All these items were then put into storage. They did not completely sever their financial relationship, however. They still maintained a joint bank account, into which the Deceased’s Army pay was deposited. Miss Rhodes gave the Deceased her key card relating to that account, but she was still a signatory to the account. They continued to have the joint loan which they had taken out in 1997.

14 The Deceased left for East Timor, as part of the Army’s peace-keeping force, on 16 September 1999. He did not return from East Timor until 20 February 2000. Over the time he was in East Timor, both letters, and telephone communications, passed between the Deceased and Miss Rhodes. The letters are in evidence in these proceedings. They have a repeated theme of mutual affection. As well, though, there is some mutual suspicion, and recrimination. The Deceased had asked someone for the telephone number of Shenoah; Miss Rhodes came to hear that he had done so, and wrote to him that it was a “kick in the guts” to find that out. Miss Rhodes wrote to the Deceased requesting permission to remove some goods from storage, but the Deceased did not give that permission. Miss Rhodes started to see a man called Graham. In a letter she wrote to the Deceased on 17 September 1999 (the day after the Deceased had left for East Timor). She said, “I am still seeing Graham, but am still a little reluctant” – from which I would infer that she had been seeing Graham before the Deceased left for East Timor. On 24 November 1999 Miss Rhodes wrote to the Deceased a letter which included the phrase, “I want to be clear Daniel that I am open to talk when you get home, but I also want to make it clear that my life is still going on while you are away.” It concluded, though, saying, “I love you and miss you with all my heart and think often of the day you will return home. Speak to you soon. Take care.” This tone of continuing affection, but with qualifications, continued in the letters. A letter from Miss Rhodes of 20 January 2000 includes the following,

“April also told me that you met a girl on the internet from the Gold Coast and that you were exchanging photos. How come you didn’t tell me. It’s hard to deal with the idea of other people in our lives. I know it must have been hard when I told you where I was when you rang me last week. Time will make it easier I guess.”

15 That same letter concluded, “Hope to talk to you soon. Don’t forget about those letters you have to write to me. Love you. Miss you. Always.”

16 The deceased’s letters (not all of which were in evidence) similarly show mixed feelings. A letter of 19 October 1999 says, “Still missing you like crazy. Just can’t stop thinking about you …”, and asked Miss Rhodes to send him some photos of herself. A letter of 4 November 1999 said:

“… I am missing you so much and it’s harder when I hear about you with other men.
I apologise for the other letter that I sent you, I must have seemed really abrupt, but I was really upset with what you said and about how you were getting set up with men …
I don’t know what you think but I want to give us another chance, but for good …”

17 A letter of 7 November 1999 says:

“… I’ve been sitting here just staring at the picture of you, thinking how much I love you and miss you.
It’s funny you know I am such a fool to let someone go who loves you and cares for you and does everything they can to make you happy and looks after you.
It has probably taken me this trip to wake up to myself like we have been broken up for months and I am going to swallow my pride here, from the day I moved back into barracks I could not stop thinking about you and missing you and us in the home life and companionship we had together …
Lee-Lee I will always think of you as mine and want you back I really mean it …
Will you take me back I know we can make it together. I miss you, I love you, I want you back, I want to marry you …”

18 A letter of 18 November 1999 includes:

“I love you baby and miss you baby …
I just got your letter dated 10 November 1999. Baby I’m so sorry for the way I made you feel. It wasn’t anger I was throwing at you, it was because I was really cut about what you wrote. …
You say you have changed and don’t know what you want, I have changed as well but I know exactly what I want and you know too what I want and that is you.
But from now on I won’t write stuff about us getting back together and stuff if it’s making it hard for you sorry.”

19 A letter of 24 November 1999 includes:

“I’m missing you like crazy babe. …
If you need to borrow money you can baby. I will pay half for Jake to get de-sexed OK.
I’ve got all the photos up on the wall and I look at them all the time.”

(Jake is a dog which the Deceased and Miss Rhodes had as a pet.)

20 A letter of 11 December 1999 includes:

“I wasn’t going to write a letter but you asked me to so I am.
Well where do I start! I’m not sorry for asking what I did this morning because I wanted to ask.
You made it worse because you won’t tell me and you say I have no right to ask, but that just says to me that you went and stayed at some guy’s house so that’s what I think. …
I know that you are going on with your life but don’t think that you can have boyfriends and then have me when I get home because I won’t have any part of it sorry.
Like don’t get me wrong I want you so bad but we as you said will have to wait and see …
I know we had our good and bad times but we still got on like best friends when we did stuff together.
What I do ask is please don’t just push me out of your life baby.
Do you agree when I get back about spending a lot of time together.
Please also don’t be secretive about what you do, you know if you think that we are best friends as well why is it hard to tell me anything, eventually it will ruin our friendship.
Baby I love you so much and I want to be with you, but I know that, that might not be able to happen because of what happens while I’m over here you know. …
The only thing I worry about is if you got with someone I know, because I would just snap and kill them, but I know you wouldn’t do that to me.
OK I’m going to go now so, I love you.
Write again soon. Daniel XOXO”

21 That is the last of the Deceased’s letters from East Timor which was tendered in evidence.

22 Around 24 February 2000, Miss Rhodes moved out of April Edwards’ house, and into a house with Danielle Scott-Flanders at 6 Madang Street, Holsworthy. There, the Deceased was a regular visitor. Ms Scott-Flanders estimates that he was there approximately five nights each week. The Deceased and Miss Rhodes slept together. She did his laundry. They showed mutual affection. He provided her with money on at least some occasions. Ms Scott-Flanders had a conversation with the Deceased, with Miss Rhodes present, in which he told her about the sort of car that he and Miss Rhodes would buy when they got married.

23 On 11 April 2000 the Deceased died, in a motor accident, while riding a motorbike.

24 At 6.30am on 12 April, Mrs Cahill rang Miss Rhodes, and said, “I’ve spoken to April. She told me that Daniel’s Will says that she’s the executor and I’m the beneficiary”. Miss Rhodes said that she did not think that was right, that as far as she knew the Deceased’s Will was lodged with the Army.

25 Later in the day on 12 April 2000 Miss Rhodes and her mother went to Mrs Cahill’s home. Two Warrant Officers from the Army came. In the course of discussing the arrangements for the Deceased’s funeral, Mrs Cahill said, “I know I’m the beneficiary and April’s the executor”.

26 The Deceased’s estate is valued at approximately $275,000. However, the vast bulk of this, a little over $258,000, is the proceeds of a death benefit arising under his superannuation. His other assets were $900 odd in a credit union account, a 1982 Ford Falcon said to be worth $2,500, a motor bike said to be worth $13,000, some back pay, and furniture and personal effects. He also jointly, with Miss Rhodes, had about $3,000 in the Commonwealth Bank.

The Conversations Mrs Cahill Relies on to Establish that there was a Later Will

27 Mrs Cahill relies on a total of 12 conversations to establish that the Deceased executed a Will in or about August 1999. Some of these conversations are conversations to which Miss Rhodes is said to have been a party, so that her participation in the conversation counts as an admission by her. Others are conversations to which the Deceased was a party. Section 63 of the Evidence Act 1995 alters the common law by allowing “first hand hearsay” in certain circumstances. One of those circumstances is when the maker of the statement is not available to give evidence (as any deceased person is – see the definition in the Dictionary to the Evidence Act), and notices under section 67 of the Evidence Act have been given or dispensed with (as has happened here).

First Conversation – August 1999 – Miss Rhodes and the Deceased at Ms Edwards’ House

28 Ms Edwards gives evidence as follows:

“In August 1999 the Deceased and [Miss Rhodes] came to my home at 6 Aruma Close, Chipping Norton [Miss Rhodes] said ‘We’ve just changed Daniel’s Will.’ I said ‘Did you.’ [Miss Rhodes] and the Deceased said ‘Yes’. [Miss Rhodes] said ‘You’re his next of kin.’ I said ‘Oh great.’ In the same conversation [Miss Rhodes] said ‘I’m still the executor but your mother is the full beneficiary, yes Robyn gets the whole of Daniel’s estate.’ I then said ‘How did you do that. I don’t have a Will.’ [Miss Rhodes] said ‘You just get a Will form from the newsagent, they only cost a couple of dollars.’ Grant said ‘I have one of those, my friend Peter Scicluna has got it, he is my executor.’”

29 Grant Judge, the domestic partner of Ms Edwards, gives evidence as follows:

“On one occasion in 1999 before Daniel was posted to East Timor I remember Lee-Anne and Daniel visiting us at my home. April and I were sitting in the back room of the house. We were having a cigarette. Lee-Anne came into the house by herself. I assumed Daniel was with her but I did not see him at that time. Lee-Anne came to the back room and said words to the effect ‘We have been to change Daniel’s Will.’ I was still smoking at this time so I went outside to put out my cigarette. When I came back into the room Daniel had entered the room. I heard April say either ‘Where did you do that?’ or ‘How did you do that?’ Lee-Anne said ‘It is easy anyone can do it you just go to the newsagent and get a Will form.’ I said ‘That’s right. I got one of those. Peter Scicunna has got it.’”

30 Amanda Edwards, the daughter of Ms Edwards (who was 14 at the time) gives evidence as follows:

“I remember being at home at Chipping Norton in August 1999. It was before Daniel went to East Timor. I was in the kitchen and Lee-Anne Rhodes walked into the house. My mother was in the house at the time. I heard her say words to the effect ‘We have just been to change Daniel’s Will.’ I then became aware that Daniel was in the house. I heard [Miss Rhodes] say words to the following effect ‘You’re the next of kin. I am the executor. Your mother gets everything.’”

31 Miss Rhodes denies that any such conversation occurred. Rather, Miss Rhodes said:

“Very soon after we moved out of the married quarters the Deceased said to me words to the following effect:-
“I have to change my details with the Army. I have to change my next of kin. I’ll make April next of kin.”
Not long after this conversation the Deceased and I drove in my car to Battalion Headquarters. The Deceased said to me words to the following effect:-
“Wait in the car. I’ll just go in and do it.”
I waited in the car for a short period for the Deceased to return. We then drove to April’s home. It was at this time that I remember a conversation between the Deceased, April and myself. The Deceased said to April words to the following effect:-
“I’ve changed my next of kin to you April.”
April asked:-
“What’s next of kin? Is that to do with your Will?”
The Deceased said:-
“No, it’s an Army thing.”
I said words to the following effect:-
“No, they’ll just call you if anything happens to him. I’m here all the time anyway so I’ll know straight away.”

32 Miss Rhodes denies saying, “We’ve just changed Daniel’s Will”, denies that Grant Judge was present at all, and denies other aspects of Ms Edwards’ evidence.

Second Conversation– August or Early September 1999 – Deceased and Lance Corporal O’Sullivan

33 Lance Corporal O’Sullivan worked with the Deceased. He heard from the Deceased that the Deceased and Miss Rhodes were splitting up, but would remain friends. Lance Corporal O’Sullivan went to Darwin in early September 1999, as a preliminary to going to East Timor. He gives evidence that, before he went to Darwin, he said to the Deceased, “Have you changed your Will?” and the Deceased replied, “Yes I have changed it.” In cross-examination he gave the following evidence:

“Q. Where do you say you were when you asked him this question?
A. We were just outside the Q store at morning tea time, having a coffee.

Q. And just out of the blue you asked him that?
A. I asked him there because I was concerned for a fellow workmate because, as history shows with defence force members, they tend to get the rough end of the stick a lot of the time with their partners once they are deployed overseas.

Q. You were concerned with his welfare so far as Lee-Anne went?
A. That's correct.”

Conversation 3 – Late August/Early September 1999 Deceased and Mrs Cahill

34 Mrs Cahill gives evidence as follows:

“About 2 weeks before Daniel left for East Timor he rang me and said ‘Mum it is me. We are definitely going.’ I said to Daniel ‘Did you make a new Will?’ Daniel said ‘Yes Mum I have made a new Will everything is alright.’ I said ‘Daniel what about your bills have you made arrangements to have them paid?’ He said ‘Yes I have that all fixed up.’”

Conversation 4 – September 1999 Deceased and Corporal Mostowyj

35 Corporal Mostowyj was in the same unit as the Deceased prior to September 1999. The Deceased was under his command. He gives evidence that just prior to leaving for East Timor he said to the Deceased, “Have you done a Will?”, to which the Deceased replied, “I changed my Will because Lee-Anne and I broke up.” Corporal Mostowyj gave the following evidence:

“Q. Why did you ask him, "Have you done a Will"?
A. At that time Private Cahill was under my command and in preparing for East Timor there's a number of administrative details that have to be looked at before soldiers can deploy and that's one of them.”

36 Corporal Mostowyj also gave evidence that he made an appointment for the Deceased to go to see the Brigade Legal Department concerning his Will. Apparently, however, Corporal Mostowyj did not follow-up on whether that appointment had been kept, and there is no evidence to suggest that it was actually kept.

Conversation 5 – Miss Rhodes and Diane Tucker

37 Mrs Diane Tucker is the sister of Mrs Cahill. She gives evidence that she was at the home of April Edwards and Grant Judge when the Deceased and Miss Rhodes arrived. She says that as best she can recall this was just before the Deceased went to East Timor. She says that Miss Rhodes said, “Daniel and I have made new Wills”, to which Mrs Tucker replied, “How much did it cost?”, and Miss Rhodes said, “We purchased them from the paper shop”. In cross-examination she gave the following evidence:

“Q. How did the conversation start about Wills?
A. I'd just lost a friend and I had been approached by her sister that I hadn't made a Will, so we were discussing that there was a lot of trouble with this family because of no Will and she had died very suddenly, and I was told that I should hurry up and do something to make a Will, and I was very interested to find out about Wills and how much they cost, how to go about them, and we were discussing that and Lee-Anne had said that they had made a Will and I asked, "Well, how did you do it?" She said from the paper shop and it wasn't very expensive.
Q. So that's what she said?
A. That's how it all came about.
Q. She said she had a Will?
A. She had just made a Will, her and Daniel.
Q. Both of them had just made a Will?
A. Yeah.”

38 Miss Rhodes denies that this conversation took place. She also says that she had not made any new Will between when she had made her Will on 23 November 1997 (see paragraph 5 above) and the date of the Deceased’s death.

Conversation 6 – 15 September 1999 Deceased and Karina Kelly,

39 Karina Kelly is Mrs Tucker’s daughter and thus is a cousin of the Deceased. On 15 September 1999 she visited the Deceased, at Ms Edwards’ home, to wish him well in East Timor. She gives evidence as follows:

“A newsbreak of the peacekeeping troops came onto the television which halted our discussion. Afterwards, I asked Daniel: ‘Speaking of Timor, have you got all your legal documentation in order.’
He asked: ‘What do you mean?’
I said: ‘Well, you know, your final Will and all that.’
He sat heavily and I said: ‘Sorry for asking but it’s a habit cause my dad takes so many trips.’
He said: ‘That’s okay, yeah, but it was a pain having to do it all again.
I asked: ‘What do you mean again?’
He said: ‘Well, I did my Will when I was training, but now, because Lee-Anne and I are broken up I’ve had to redo it.’
I asked him: ‘Why?’
He replied: ‘In the first Will I left it all to Lee-Anne and now if anything happens it’s not gonna.’”

Conversation 7 – 17 January 2000 Deceased and Corporal Capaldi in East Timor

40 Corporal Capaldi met the Deceased in East Timor, and worked with him there. He gives evidence of a conversation which they had on 17 January 2000, when they were driving from a field hospital in Dili.

“I spoke to Daniel about my Will and I said:
“What about your Will?”
He said: “I changed it from the original that I wrote in 1997 at Kapooka where I left everything to Lee-Anne. Before I left for Timor, after the break-up, I changed my Will. I left everything to my family.””

Conversation 8 – Deceased and Corporal Mostowyj in East Timor

41 Corporal Mostowyj gives evidence of another conversation that he had with the Deceased in East Timor, where the Deceased said to him, “When Lee-Anne and I broke up I changed my Will.” He said that this occurred about two months into their first tour of East Timor, so it was around November 1999. In cross-examination he gave the following evidence:

“Q. Did you ask him at that stage about his Will?
A. In the conversation the subject came up and I asked him had he changed his Will.

Q. In what context did the topic come up?
A. When I talk to my soldiers, I ask them how everything is going at home and if they had any administration problems and if they'd had administration problems in the past, I go back over it and make sure that it's been fixed up.”

Conversation 9 – Deceased and Mrs Cahill After Return from East Timor

42 Mrs Cahill gives evidence as follows:

“After Daniel returned home from East Timor and a short time before his death he said to me words to the effect ‘Lee-Anne was borrowing money from me all the time.’ I said ‘Daniel, you have to put a stop to that.’ Daniel said ‘Yes’, I’m not lending her any more money’. Later, when we were talking about the possibility of a nine (9) month rotation to East Timor Daniel said to me ‘Don’t worry Mum, if anything happens to me everything goes to you.’”

Conversation 10 – Deceased and Sergeant Andrews After Return From East Timor

43 Sergeant Andrews was not the immediate superior of the Deceased, but was one of many Non-Commissioned Officers in the Quartermaster’s Store that were responsible for the Deceased’s daily tasking and welfare. He gives evidence as follows:

“I recall an incident after Daniel returned to Holsworthy he said to me:
“Corporal will you help me in preparing an application for a carpentry course.”
I said: “Yes Daniel, but what do you want to do that for?”
He said: “My father was a carpenter and I have had an interest in carpentry for a long time. I have decided to pursue a carpentry course when the military course becomes available. My relationship with Lee-Anne has broken down and there is no reason for me to stay with the Infantry. I want to move on and pursue my own interests.”
I gave Daniel some advice about the result of his decision.
I said: “If you are going to leave the Infantry your personal affairs must be in order before you apply. Have you fixed up your Will now that you and Lee-Anne have broken up?”
He said: “I changed my Will before I went to East Timor. There are no problems outstanding.””

44 In cross-examination, he confirmed that it was a usual process for soldiers to be required to have their personal affairs in order before they went to East Timor. He said:

“Q. And coming back to a non combat zone, it would have been less important for them to have their personal affairs in order, wouldn't it?
A. Actually, ma'am, the exact opposite is true. When soldiers return from operations it is more likely that their personal circumstances will change, and in that instance it is actually a more important issue for them to keep on top of their personal administration.”

(This echoes the evidence of Lance Corporal O’Sullivan that, “as history shows with defence force members, they tend to get the rough end of the stick a lot of the time with their partners once they are deployed overseas.” )

45 Sergeant Andrews also gave this evidence:

“Q. You said that you said to Daniel, "Your personal affairs must be in order before you apply." Is there some sort of checking that is gone through or is it up to the soldier himself?
A. In regards to personal administration, when I made that statement to Daniel what I was looking for was he had indicated that his relationship with his de facto or his spouse or his girlfriend had been terminated. Now, if he were to move on from there without changing the details in his personal file, it could well have caused him troubles later on down the track. It was my job as the person who was assisting him in applying for change of circumstances to ensure that that was actually taken care of.
Q. You were aware, were you, that they had moved out of married quarters?
A. No, I didn't question him to that extent.
Q. Did he not discuss any of his affairs with you to that extent?
A. No. With regards to the application he asked me to help him with, my responsibility was to ensure that his personal affairs weren't going to be a problem. Now, I asked Daniel if his Will had been sorted out, he said it had and I was satisfied with his response. There was no indication from him at that time that there was any need for me to question him further.
…
Q. And there was no reason for you to ask him about his Will, was there?
A. Yes, there is every reason for me to ask him about his Will. His personal circumstances had changed. If your personal circumstances change it invalidates any stated Will. If your personal circumstances change it is common knowledge you must change your Will as well.”

Conversation 11 – First Week February 2000 Deceased and Corporal Capaldi in East Timor

46 Corporal Capaldi gives evidence that, around the first week in February 2000 (a time when the Deceased was still in East Timor) he had a conversation with the Deceased where Corporal Capaldi asked him, “Where is your Will? Does the company hold your Will?” The Deceased said: “No it’s in my room”. Corporal Capaldi said, “When you get back to Australia make sure you hand it in to the company.” The Deceased, “just shook his head.” In cross-examination, Corporal Capaldi said that this shaking of the head was a shaking from side-to-side, “in a negative fashion”.

Conversation 12 – Deceased and Corporal Capaldi in Late March 2000

47 Corporal Capaldi also gives evidence as follows:

“In late March 2000 we were back at Holsworthy. I was on guard duty and Daniel was riding his motorbike back into the unit. He stopped and we had a conversation at the front gate. I said to him:
“Have you had all your administration done? Did you get your Will up to Administration Company?”
He said: “No, I’ll do that when I return back from leave.””

Searches for the Will

48 After the Deceased’s death, a thorough search was undertaken of his room. Lance Corporal O’Sullivan carried out that search. One of the things he was looking for was a Will. He said in evidence that he did not see a concertina file in the room. An inventory of items issued to the Deceased shows that he had at one time been issued with an expanding file. Ms Edwards and Mr Judge were present when Lance Corporal O’Sullivan was going through the room. No Will has been located. Mrs Cahill gives evidence that she has requested the Officer in Charge of Holsworthy Army Barracks to search the personnel file of the Deceased for a Will made by him on or about August 1999, and that she has been unable to locate the Will or a copy thereof.

Credibility of Witnesses

49 Overall, I am not satisfied that the first conversation which Mrs Cahill relied on, occurred in the way in which Ms Edwards says. I have reservations about the reliability of Ms Edwards as a witness. The idea that the Deceased should make a new Will which completely removed Miss Rhodes as a beneficiary, but leave her as executrix, is very strange. Mr Judge does not claim to have heard the whole of the conversation. While Amanda Edwards now presents as a mature and self-possessed young woman, at the time of the conversation she was 14, and was not an active participant in the conversation – she was washing up at the time. I was generally favourably impressed with Miss Rhodes as witness, and her denial of the conversation having occurred as Mrs Cahill’s witnesses say it had occurred, and the plausible alternative account which Miss Rhodes gives, are a significant obstacle to accepting Mrs Cahill’s witnesses concerning this conversation. In all these circumstances I am not satisfied that that conversation occurred.

50 While I accept that Mrs Tucker was giving evidence to the best of her ability, I cannot accept that her account of conversation number 5 is accurate. It is an essential element in that conversation that Miss Rhodes had changed her Will – something which Miss Rhodes flatly denies. I accept Miss Rhodes’ denial of that. When there is this established difficulty in accepting part of Mrs Tucker’s evidence concerning conversation number 5, I do not feel sufficiently confident about accepting the rest of her evidence.

51 I accept the evidence of Mrs Cahill, concerning conversations 3 and 9. I also accept the evidence of Karina Kelly, concerning conversation number 6.

52 Most persuasive, however, is the evidence of the four soldiers. They are completely independent witnesses with no motivation to misrepresent the facts, and no reason even to be subject to unconscious bending of the truth. While three of them – Corporal Mostowyj, Corporal Capaldi and Sergeant Andrews – were cross-examined by an audio link, they were completely co-operative witnesses, and I do not feel any reservation in accepting them as truthful witnesses. The evidence they give presents a combination of statements made by the Deceased about his Will in two different types of circumstances – one being a statement to a superior about a matter about which it was that superior’s duty to enquire and be satisfied, the other being more in the nature of conversation between workmates. That similar statements were made in the two different types of circumstances provides added reason for accepting them. If, when Sergeant Andrews gave evidence that “if your personal circumstances change it invalidates any stated Will” he was intending to state the law (rather than, for instance, merely say that change of circumstances makes any Will no longer prudent to maintain) he was mistaken, as section 16 of the Wills, Probate and Administration Act 1898 says, “No will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances”. Even if he had an incorrect view of the law in this respect, he was firmly of the view that the change in the Deceased’s circumstances made it important for him to make a new Will. When Sergeant Andrews had that view, he had good reason for making the enquiry he made about the state of the Deceased’s Will, and good reason for wanting to be satisfied about the answer. I accept the evidence of the four soldiers concerning each conversation to which they were party.

The Law Concerning Probate of a Lost Will

53 In Curley v Duff (1985) 2 NSWLR 716, at 718-719 Young J (as he then was) said:

“As I understand it, five matters must be established when it is sought to have probate of a lost Will. First, it must be established that there actually was a Will (see Re Molloy [1969] 1 NSWR 400), secondly, it must be shown that that Will revoked all previous Wills, thirdly, that the presumption that when a Will is not produced it has been destroyed must be overcome (see Allan v Morrison [1900] AC 604), fourthly, there must be evidence of its terms, and fifthly, evidence of due execution (see Gair v Bowers (1909) 9 CLR 510).”

54 Section 18A of the Wills, Probate and Administration Act 1898 (which commenced on 1 November 1989, applying to Wills of persons dying after that date) alters the law on this topic somewhat. Section 18A says:

“(1) A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in accordance with the formal requirements of this Act, constitutes a Will of the deceased person, an amendment of such a Will or the revocation of such a Will if the Court is satisfied that the deceased person intended the document to constitute the person's Will, an amendment of the person's Will or the revocation of the person's Will.
(2) In forming its view, the Court may have regard (in addition to the document) to any other evidence relating to the manner of execution or testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the deceased person.”

55 To take account of section 18A, the formulation of the five requirements which Young J laid down in Curley v Duff, needs to be modified as follows:

First, it must be established that there actually was a Will, or a document purporting to embody the testamentary intentions of a deceased person; second, it must be shown that that document revoked all previous Wills, third, the presumption that when a Will is not produced it has been destroyed must be overcome, fourth, there must be evidence of its terms, and fifth, there must be either evidence of due execution or that the deceased person intended the document to constitute his or her Will.

56 In In the Estate of Ralston (Supreme Court of NSW, 12 September 1996, unreported) Hodgson J dealt with the standard of proof applicable in such cases as follows:

“… there should be clear and convincing proof similar to that appropriate to other classes of case where the Court is asked to give effect to parol arrangements in circumstances where the law requires, or the parties have chosen, that a particular matter be recorded in some formal way (see, for example, Pukallus v Cameron 56 ALJR 907 at 911; Blackney v Savage and Sons (1973) VR 385 at 389; Maks v Maks 6 NSWLR 34 at 36; Whittet v State Bank of NSW 24 NSWLR 146 at 151-4), or where the Court is asked to make a finding concerning a legal transaction by a deceased person (see, for example, Birmingham v Renfew 57 CLR 666 at 674, 681-2).
However, this does not mean that what is required is other than proof on the balance of probabilities: cf Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-1. In a case such as this, I believe that what is required is that the party bearing the onus of proof must be sufficiently diligent in calling available evidence, because the Court will not be prepared to act on material which it considers inadequate: cf my article ‘The Scales of Justice - Probability and Proof in Legal Fact Finding’ (1995) 69 ALJ 731 esp at 739-40.”

57 Revocation of all previous Wills can be shown by an express revocation clause contained in a Will (not being one shown to be inserted by mistake). Revocation can also be shown by implication, such as when a later Will contains no express revocation clause, but makes dispositions inconsistent with an earlier Will; and there can be such implied revocation even if the second Will does not dispose of the whole estate of the deceased (In the Estate of Ann Faith Bryan [1907] P 125). Since the enactment of section 18A, it suffices if the testamentary document which meets the requirement of section 18A, reveals an intention on the part of the deceased person to revoke his or her previous Will.

58 Concerning the presumption that if any Will traced to the possession of the deceased is not forthcoming on his death, it is presumed to have been destroyed by himself with an intention of revoking it, unless there is sufficient evidence to rebut any such presumption, Powell J said, in Whiteley v Clune (No2); The Estate of Brett Whiteley (13 May 1993, unreported) at 26-27:

“It seems at first to have been suggested that the presumption, which arises where a Will or Codicil is last traced into a testator's possession, and is not forthcoming at his death after reasonable search and inquiry, that the testator has destroyed it animo revocandi was a presumption of law (see Patten v Poulton (18568) 1 Sw and Tr 55, 60 per Sir Cresswell Cresswell). However, that view seems not to have survived the 1820s, when Sir John Nicholl ( Colvin v Fraser (1829) 2 Hagg 325) and, later, Parke B (as Lord Wensleydale then was) ( Welsh v Phillips (1836) 1 Moo PC 299) pointed out that the presumption was one of fact, which could be rebutted by appropriate evidence.
So, too, the view expressed in the older cases ( Davis v Davis (1824) 2 Add 223; Colvin v Fraser (supra); Lillie v Lillie (1829) 3 Hagg 184) that the evidence produced in rebuttal must be such as produces “a moral conviction”, and that expressed in later cases ( Woodward v Goulstone (1886) LR 11 App Cas 469, 475 per Lord Herschell; Harris v Knight (1890) LR 15 PD 170, 179 per Lindley LJ (as he then was)) that the evidence “must be so clear and satisfactory as to remove, not all possible, but all reasonable, doubts”, has, in more recent authority (In the Estate of Wipperman: Wissler v Wipperman [1953] 2 WLR 706; [1953] 1 AER 764; (1955) P 50; Tristram and Coote's Probate Practice 21 Ed (1960) 641; Williams Mortimer and Sunnucks: Executors Administrators and Probate 16 Ed (1982) 187, 249) been supplanted by the view that the standard of proof is that applicable in ordinary civil cases.
The present position would now seem to be as follows: -
1. although, where a Will is traced into the possession of the testator and is not forthcoming on his death, there is a presumption that he destroyed it animo revocandi , the presumption may be rebutted;
2. the strength of the presumption depends upon the character of the testator's custody over it ( Sugden v Lord St Leonards (1876) LR 1 PD 154; Allan v Morrison [1900] AC 604; McCauley v McCauley (1910) 10 CLR 434);
3. where the Will makes a careful, and complete, disposition of the testator's property, and there are no other circumstances to point to a probable destruction, animo revocandi , by the testator, the presumption is so slight that it may be said not to exist ( Sugden v Lord St Leonards (supra); Finch v Finch (1867) LR 1 P and D 371);
4. where a Will is lost or destroyed, and the presumption of destruction, animo revocandi , either, does not arise, or, is rebutted, its contents may be proved by parol evidence. The “rules” laid down in Sugden v Lord St Leonards (supra) are as follows: -
a. the contents of any lost instrument, including a Will, may be proved by secondary evidence;
b. written and oral declarations of a testator made before, or after, the execution of the Will are admissible as secondary evidence of its contents;
c. the evidence of a single witness, although interested, is admissible to prove the contents if his veracity and credibility are unimpeached;
d. Probate may be granted of so much of the contents as may be proved, even though proof is not available of the entirely.
It should, however, be noted that, at least insofar as (b) and (d) are concerned, Sugden v Lord St Leonards (supra), although not overruled, has not escaped criticism ( Woodward v Goulstone (supra); Atkinson v Morris [1897] P 40) so that it is improbable that the “rules” will be extended.”

59 The cases to which Powell J referred as authority for the proposition that “the strength of the presumption depends upon the character of the testator’s custody over it” explain by example what is meant by the expression “the character of the testator’s custody over it”. It refers to facts concerning the physical arrangements the testator has for security of the Will – for instance, whether it is kept in a place which is locked or unlocked, if kept in a locked place, how many keys there are and who has them or has access to them, or whether the testator keeps his will in his coat pocket – who knows of the location of the Will, whether anyone besides the testator has access to the Will, and the extent to which the testator has been careful in looking after his Will. All these are matters which can affect the likelihood of the Will being missing because the testator himself destroyed it, or because there is some other explanation for its absence, like that someone else removed it, or that the testator has merely lost it.

60 Mr Wilson, counsel for Mrs Cahill, placed reliance on the third of the propositions which Powell J set out in Whiteley, submitting that here the Deceased’s 1997 Will had made a complete disposition of his property, and that it could not be said that there were no other circumstances to point to a probable destruction of the Will with an intention to revoke it. The thrust of the submission was that, unless the Court could find that it was probable that the Will had been destroyed with the intention of revoking it, the presumption was so slight that it may be said not to exist.

61 I do not accept that that submission applies Powell J’s third proposition correctly. If the submission were correct, then, every time a testator had made a complete disposition of his estate, and the Will could not be found upon his death, the onus would for practical purposes be upon someone who opposed the granting of probate of that Will to demonstrate that it was probable that it had been destroyed with the intention of revoking it. That would, in a very large proportion of cases, do away with the presumption entirely. That is not the law.

62 By using the phrase “probable destruction”, Powell J is not to be taken to be suggesting that anything other than the ordinary standard of proof appropriate in civil cases needs be applied to the question of whether the Will has been destroyed with an intention of revoking it. His Honour had, in the second paragraph which I have quoted above, expressly decided that the appropriate standard to apply is that applicable in ordinary civil cases.

63 Nor do the cases upon which Powell J relied for his third proposition support the submission. Sugden v Lord St Leonards (1876) 1 LR 1 PD 154 concerned the granting of probate of a lost Will of Lord St Leonards. Cockburn CJ, at 218, posed one of the questions for decision as, “next comes the question whether it is or not probable that the Will should have been destroyed by the testator …” – whatever weight might have been accorded to the word “probable” in this passage in 1876, it cannot now be treated as meaning anything other than “more likely than not”. Cockburn CJ, at 218, to answer that question, went on to “look at the position and character of the man”. He said:

“It would be difficult to find a more methodical man of business than the late Lord St Leonards; it would be difficult to find anyone who had a deeper sense of the importance of testamentary dispositions.”

64 He went on to deal with facts concerning Lord St Leonards’ making of a comparatively large number of Wills and codicils, his anxiety to provide for members of his family, his knowledge that destruction of a Will might raise a question as to his testamentary intention, and his regular discussion of his testamentary intentions with everyone with whom he came into contact. Cockburn CJ concluded, at 219:

“It seems to me utterly impossible to suppose that, under the circumstances, such a man as Lord St Leonards would voluntarily have destroyed this Will, whether for the purpose of revoking it, or making another, or for any other purpose that could be conceived.”

He went on to consider the circumstances in which the Will had last been in Lord St Leonards’ possession, and what had become of it after that, and concluded (at 220):

“The only conclusion I can arrive at is, not that he destroyed it, but that it was clandestinely got away by somebody and surreptitiously taken away.”

Jessel MR said, at 231:

“To determine the first question, therefore, we have only to consider whether there is sufficient evidence to rebut the presumption.
Now, after the elaborate judgment delivered by the Learned President in the Court below, and by the Lord Chief Justice in this Court, I shall not recapitulate the details of the evidence; but I must say I am satisfied that the testator in this case died under the belief that he had left behind him a Will disposing, in a manner satisfactory to him, of his whole estate. Every act of his life which is proved, every statement made by him which is proved, in respect of his testamentary disposition, to my mind point to but one conclusion, and to arrive to a contrary conclusion would be to believe that Lord St Leonards not only spoke a lie but acted a lie to the last moment of his existence. I think in this case the presumption of revocation is completely rebutted, not only by the evidence of Miss Sugden herself, but by all the other evidence which is directed to that portion of the contest.”

65 The other judges in the Court of Appeal (James LJ, Mellish LJ and Baggallay JA) agreed with the opinion of the Chief Justice concerning this question. Thus, Sugden v Lord St Leonards was a case where the presumption was found to be clearly rebutted.

66 Finch v Finch (1867) LR 1 PD 371 concerned a testator who had made a Will which left all his property to his daughter, thereby excluding a son who the testator regarded as, “a very lazy individual”. He told his daughter about the making of that Will, and pointed out to her the particular drawer in which he kept the Will. It was established that there was no change in his personal relations with his son and daughter respectively between the making of that Will and the time of his death. After the father’s death, the son was alone in the room where the Will was kept, and was seen coming from that room appearing to have something concealed under his coat. The Will was not found in the drawer where the testator had said it should be found. The basis of the conclusion of the court was, at 374:

“Now, if this evidence be true, it is obvious that this young man, while alone in his father’s room, possessed himself of the key of the drawer, and, coupling that with the evidence of his leaving the room subsequently, as he did, a strong inference arises that he abstracted this Will. But the court is not bound to come to a conclusion one way or the other on that question. It is enough that the court is satisfied that there is no proof that this Will was not found in the depository of the testator. It is the non-existence of the paper at the time of death which leads to the legal presumption of revocation. A Will is good unless revoked; this Will is not revoked, unless the legal presumption arises; and to support that presumption the court must be satisfied that it was not in existence at the time of death. The evidence which has been produced does not satisfy the court that it was not in existence at that time; on the contrary, looking at the expressed intention of the testator to leave the property to his daughter, and the fact that he continued to express that intention up to the last occasion when he spoke about the Will, the court is satisfied that his determination remained unaltered until the time of his decease.”

67 Thus, Finch v Finch is, in part, a case of the presumption not arising at all, because the court was not satisfied that the Will was not in existence at the time of the testator’s death. It is also, in part, a case where the court was positively satisfied that there was no intention to revoke the Will.

68 What Sugden v Lord St Leonards, and Finch v Finch, show is that if a testator has made a Will which makes a careful and complete disposition of his property, and an examination of the circumstances relevant to the Deceased’s testamentary intentions between the time of the making of that Will and the time of his death does not reveal anything which shows that the testator had any reason to revoke the Will by destroying it, the strength of the presumption is weakened to such an extent that it is overcome. This is no more than a particular application of how the factual presumption can be overcome by circumstantial evidence which shows, on the balance of probabilities, that, even though the Will is missing at the testator’s death, it is more likely than not that the reason for it being missing is something other than that the testator destroyed it with the intention of revoking it.

69 The common law position concerning proof of the contents of a lost will, set out in Powell J’s fourth proposition, has now become inapplicable through changes in legislation.

70 Section 18A(2) of the Wills, Probate and Administration Act1898 has allowed evidence of statements made by a deceased person as to the manner of execution of his or her Will, or his or her testamentary intentions, to be admissible for the purpose of deciding to admit an informal Will to probate, or to admit the informal document as an amendment to a previous Will, or to treat the informal document as a revocation of a previous Will. Though section 18A(2) had been enacted at the time of the decision in Whiteley v Clune (No2) it supplemented, rather than replaced, the common law. Further, section 18A(2) did not cover the entire range of evidence which could be admitted to prove the contents of a lost Will. Prior to the introduction of the Evidence Act 1995, the common law rules which Powell J laid down in the fourth paragraph which I have quoted above, would have applied to decide the admissibility of evidence of a lost Will in those circumstances where section 18A(2) of the Wills, Probate and Administration Act 1898 could not be pressed into service.

71 Since the Evidence Act 1995 has been introduced, however, proof of the contents of documents (including lost Wills) must accord with that Act. Section 51 abolishes “the principles and rules of the common law that relate to the means of proving the contents of documents”. Sections 48 to 50 of the Evidence Act 1995 set out the requirements of that Act for proof of documents. In the case of a lost Will, the relevant provision would be section 48(4)(b) which provides:

“(4) a party may adduce evidence of the contents of a document in question that is not available to the party, or the existence and contents of which are not in issue in the proceeding, by: …
(b) adducing oral evidence of the contents of the document in question.”

72 Thus, it is now to the rules of the Evidence Act 1995 for adducing of oral evidence, and to any other specific provisions in legislation (such as section 18A(2) of the Wills, Probate and Administration Act 1898) that one must look for the rules of evidence which now apply to prove the contents of a lost Will, or a Will which has been destroyed in circumstances where there was no intention to revoke it. Even though section 18A(2) of the Wills, Probate and Administration Act 1898 predates the Evidence Act 1995, it continues to function alongside the Evidence Act – section 8 of the Evidence Act says, “This Act does not affect the operation of the provisions of any other Act”

Conclusions Concerning the Facts

73 I make these findings concerning the modified Curley v Duff requirements set out in paragraph 55 above. The Deceased made a new Will in about August 1999. That he did so is shown both by the evidence of oral statements which I have accepted, and also by being consistent with the probabilities. After the break-up of his relationship with Miss Rhodes, notwithstanding that he wished to remain friends with her, it is unlikely that he would have continued to wish that she received the whole of his estate. Further, the requirement of the Army that soldiers going to East Timor have an up-to-date Will is likely to have made him do something about his changed testamentary intentions. I am satisfied, particularly bearing in mind the evidence from Corporal Capaldi, that there was a document, which the Deceased understood and intended to be his Will, and which he had in his room.

74 I am satisfied that the document contained a revocation of prior Wills. When I am not satisfied about conversations 1 and 5 having occurred, I would not be justified in proceeding on the basis that the Will which the testator executed was one in the form of a standard form obtainable from a newsagent, and therefore likely to contain an express revocation clause. However, the statements which the Deceased made to other people, and which I have accepted, are ones which indicate that his break-up with Miss Rhodes was the reason for the change (conversations 4,7,8 and to a lesser extent 10) and a pattern of dispositions inconsistent with Miss Rhodes receiving any benefit (conversations 6,7 and 9). In those circumstance, I find that the testamentary document contained, at the least, an implied revocation of his earlier Will.

75 I am satisfied that adequate searches have been made for the Deceased’s Will, and that it has not been found. I am not satisfied that the presumption that the 1999 Will was destroyed by the testator with the intention of revoking it has been rebutted. The evidence from Corporal Capaldi, about conversation number 7, in which the Deceased shook his head when Corporal Capaldi told him to make sure he handed the Will in, on his return to Australia, suggests that even at that stage the Deceased might have been having some doubts about the appropriateness of the Will. The Deceased’s letters from East Timor show that, by the time they were written, he did not regard the break-up with Miss Rhodes as final, and was trying to persuade her to resume the relationship. The Deceased actually resuming, to a significant though not complete extent, his relationship with Miss Rhodes upon his return to Australia is a circumstance which casts serious doubt on whether he would have seen the Will which he made immediately before going to East Timor, as still being an appropriate one. It was not submitted that the evidence showed that anyone other than the Deceased had access to his Will and might have removed it from his custody. In these circumstances, I am not satisfied that the presumption has been rebutted.

76 When I am not satisfied that the presumption of revocation by destruction has been rebutted, it is not necessary for me to consider what findings I might have made concerning the precise terms of the Will.

77 It follows that I find that the deceased died intestate.

78 The deceased died leaving no spouse, and no issue. Miss Rhodes has not contended that she was a de facto spouse. Section 63(b) of the Wills, Probate and Administration Act 1898 permits administration of the estate of an intestate person to be granted to one or more of the next of kin. Mrs Cahill is therefore entitled to apply for a grant. No contention has been put forward that anyone besides Mrs Cahill has a better claim to a grant. The grant will therefore be made to Mrs Cahill.

Costs

79 In Re Estate of Paul Frances Hodges Deceased; Shorter v Hodges (1988) 14 NSWLR 698 at 709 Powell J said (in words he repeated in Whiteley v Clune (No 2); The Estate of Brett Whiteley (13 May 1993, unreported), at 29):

“Costs are, of course, in the discretion of the court, but that discretion, being a judicial, and not an unfettered, one must be exercised in accordance with established principle.
The general principle to be applied in adversary litigation is that costs follow the event, those costs being taxed on a party and party basis. However, over the years, a number of exceptions to this general rule have come to be recognised. In the field of Probate litigation, two such exceptions have come to be recognised, they being: -

1. where the testator has, or those interested in residue have, been the cause of the litigation, the costs of unsuccessfully opposing Probate may be ordered to be paid out of the estate;
2. if the circumstances led reasonably to an investigation in regard to the document propounded, the costs may be left to be borne by those who respectively incurred them: see, eg Mitchell and Mitchell v Gard and Kingwell (1863) 3 Sw and Tr 278; 164 ER 1280; Orton v Smith (1873) LR 3 P and D 23; Wilson v Bassil [1903] P 239; Spiers v English [1907] P 122; Kenny v Wilson (1911) 11 SR 460: In the Estate of Holtam: Gillett v Rogers (1913) 108 LT 732.
To these exceptions to the general principle should, perhaps, be added the principle that, although a legal personal representative may be entitled to recover from a party to litigation costs only on a party and party basis, he, as a fiduciary, retains the right to an indemnity from the estate, and, thus, may have recourse to the estate for any difference between his costs on a trustee basis and the costs recovered from a party.”

80 In the present case, this litigation has been occasioned by the fact that the testator died leaving real doubt about whether he had left a Will, and if so what that Will was. In these circumstances, it is appropriate for the costs of the parties to be paid from his estate.

(1) Declare that Daniel John Cahill died on 11 April 2000, intestate.

(2) Order that, subject to compliance with the Rules of Court, there be granted to Robyn Denise Cahill a Grant of Letters of Administration of his estate.

(3) Order that proceedings 105651 of 2001 be dismissed.

(4) Order that the costs of the plaintiff, and of the defendant in each of proceedings 103878 of 2001 and 105651 of 2001, be paid, or retained, as the case may be, out of the estate of the Deceased.

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Last Modified: 07/11/2002