Clines v Johnston and Anor

[2008] NSWSC 524

CITATION:	Clines v Johnston and Anor [2008] NSWSC 524 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	23 May 2008
JUDGMENT DATE :	6 June 2008
JUDGMENT OF:	Jagot AJ
CATCHWORDS:	SUCCESSION - Wills, Probate and Administration - lost will - whether testamentary document - whether testamentary document executed - whether testamentary document a will or codicil - whether testamentary document revoked all previous wills - terms of testamentary document - whether presumption of destruction arises or rebutted - probate granted to plaintiff.
LEGISLATION CITED:	Evidence Act 1995 Probate and Administration Act 1898 Succession Act 2006
CATEGORY:	Principal judgment
CASES CITED:	Cahill v Rhodes [2002] NSWSC 561 Curley v Duff (1985) 2 NSWLR 716 Finch v Finch (1867) LR 1 PD 371 In re Wray, Dec'd; Wray v Wray [1951] Ch 425 In the Estate of Ralston (Unreported, Supreme Court of NSW, Hodgson J, 12 September 1996) Jones v Dunkel (1958) 101 CLR 298 Payten v Perpetual Trustee Co [2005] NSWSC 345 Pedler v Richardson (Unreported, Supreme Court of NSW, Young J, 16 October 1997) Re Spensely's Will Trusts; Barclays Bank Ltd v Staughton [1952] Ch 886 Sugden v Lord St Leonards (1876) 1 LR 1 PD 154 Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, Supreme Court of NSW, Powell J, 13 May 1993)
TEXTS CITED:	JD Heydon, Cross on Evidence, 7th Australian edition, 2004
PARTIES:	Peter James Andrew Clines (Plaintiff) Dorothy Emma Johnston (First defendant) Neil Johnston (Second defendant)
FILE NUMBER(S):	SC 4395 of 2007
COUNSEL:	Mr M S Willmott SC (Plaintiff) Mr D M Flaherty (Defendants)
SOLICITORS:	Owen Hodge Lawyers (Plaintiff) Hinde & Ginges Solicitors (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Jagot AJ

6 June 2008

4395/2007 PETER JAMES ANDREW CLINES v DOROTHY JOHNSTON AND ANOR

JUDGMENT

1 HER HONOUR: Vera May Robinson (the deceased) died on 12 February 2007 aged 91 years. The deceased made a will on 8 September 1993 (the 1993 will). The issue in this case is whether, on 2 May 2002, the deceased made another will revoking the 1993 will or a codicil to her 1993 will altering the dispositions of her estate and, if so, whether such a will or codicil remained unrevoked at the time of her death.

2 In the 1993 will the deceased appointed her niece Dorothy Johnston and Dorothy’s husband, Neil Johnston, as executors (cl 2). The deceased left an opal pendant to her niece Maxine King, the residue of her jewellery to Belinda Mitchell, the daughter of her niece Ruth Mitchell, and the balance of her residuary estate: (i) as to one third, to her niece Dorothy Johnston, (ii) as to two ninths to her niece Ruth Mitchell, (iii) as to two ninths, to her niece Lois Byrne, and (iv) as to two ninths, to her nephew Brian Hartley (cl 5).

3 The deceased had another nephew, Peter Clines (the plaintiff). By an amended statement of claim filed on 1 May 2008 the plaintiff seeks declarations that, on 2 May 2002, the deceased made and executed a new will or a codicil to her 1993 will, and associated orders that the plaintiff (as the executor appointed under the new will or codicil) be granted probate. The amended statement of claim asserts that the 2002 will or codicil appointed the plaintiff as executor and either revoked all previous wills (if a new will was made) or revoked cll 2 and 5 of her 1993 will (if a codicil was made), and made dispositions of her estate in which the deceased left her pendant to Maxine King, the remainder of her jewellery to Belinda Mitchell, and the residue to be divided into three parts, the deceased giving: - (i) one third part to Dorothy Johnston and Neil Johnston, (ii) one third part to Peter Clines, and (iii) one third part to Brian Hartley, Lois Byrne, and Ruth Mitchell.

4 By a cross-claim filed on 7 November 2007 the defendants seek an order that probate be granted to them of the 1993 will.

Principles

5 Cahill v Rhodes [2002] NSWSC 561 at [53] to [72] conveniently summarises the law concerning probate of a lost will. Cahill v Rhodes was decided before the commencement on 1 March 2008 of the Succession Act 2006. The Succession Act amended the Wills, Probate and Administration Act 1898 (including amending the name of that Act, which became the Probate and Administration Act 1898 from 1 March 2008). Schedule 1 of the Succession Act contains savings and transitional provisions that operate depending on the dates on which the will (as defined in that Act) was made and the testator died. In this case the making of the instruments and the deceased’s death occurred before 1 March 2008 with the consequence that ss 17 (revocation) and 18A (document purporting to embody testamentary intentions) of the Probate and Administration Act continue to apply (Sch 1, cl 3(3)).

6 The five requirements identified in Curley v Duff (1985) 2 NSWLR 716 at 718G – 719A ((i) there actually was a will, (ii) the will revoked all previous wills, (iii) the presumption of destruction with the intention of revoking the will must be overcome, (iv) evidence of the terms of the will, and (v) evidence of due execution) have been modified by statute. Section 18A of the Probate and Administration Act affects both the first and fifth requirements so that: (i) a document embodying the testamentary intentions of the deceased satisfies the first requirement, and (ii) evidence that the deceased intended that document to constitute his or her will satisfies the fifth requirement. See Cahill v Rhodes at [53] to [55].

7 The applicable standard of proof is on the balance of probabilities (Evidence Act 1995, s 140). Given the nature of the fact in issue it has been said that “clear and convincing proof” is required, with the party bearing the onus being “sufficiently diligent in calling available evidence, because the Court will not be prepared to act on material which it considers inadequate” (In the Estate of Ralston (Unreported, Supreme Court of NSW, Hodgson J, 12 September 1996) cited in Cahill v Rhodes at [56]). See also the reference to s 140(2)(c) of the Evidence Act (requiring the Court to take into account, amongst other things, the gravity of the matters alleged) in Pedler v Richardson (Unreported, Supreme Court of NSW, Young J, 16 October 1997), and the observations in Payten v Perpetual Trustee Co [2005] NSWSC 345 at [89] – [93].

8 Revocation of previous wills or testamentary documents may be express or implied (Cahill v Rhodes at [57]). In Payten v Perpetual Trustee Co at [100] Austin J observed:

The approach of the older cases was that there would be no inconsistency unless the two sets of dispositions were incapable of standing together, and where they were, the later dispositions revoked the former only to the extent of the inconsistency… But the more modern approach seems to be that the issue is one of construing the testator's intention, so that a later instrument may be held completely to supersede an earlier, although the two are not entirely inconsistent, if the court can discern that this was the testator's intention.

9 The presumption of destruction with the intention of revoking the will or testamentary document operates where the will or testamentary document is traced into the possession of the deceased and is not found on his or her death. Many facts and circumstances are potentially relevant to the likelihood of the deceased having destroyed the will or testamentary document with the intention of revoking it (Cahill v Rhodes at [58] – [68]). Hence, the strength of the presumption depends on the character of the deceased’s custody over the will or testamentary document. The contents of that document are also relevant. If the will or testamentary document makes a careful and complete disposition of the deceased’s property, and no other circumstances point to probable destruction by the deceased, “the presumption is so slight that it may be said not to exist” (Cahill v Rhodes at [58] citing Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, Supreme Court of NSW, Powell J, 13 May 1993), Sugden v Lord St Leonards (1876) 1 LR 1 PD 154 and Finch v Finch (1867) LR 1 PD 371).

10 Where a will or testamentary document is lost or destroyed, and the presumption of destruction with the intention of revocation is rebutted or does not arise, the contents may be proved by parol evidence. Hence:

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; and d. Probate may be granted of so much of the contents as may be proved, even though proof is not available of the entirety ( Whiteley v Clune (No 2) summarising the rules in Sugden v Lord St Leonards . See Cahill v Rhodes at [58] – [59]).

Proof of the contents of a lost will or testamentary document is affected by s 18A(2) of the Probate and Administration Act and s 48(4)(b) of the Evidence Act ( Cahill v Rhodes at [69] – [72]). See also Payten v Perpetual Trustee Co at [88], referring to the hearsay provisions (ss 63 and 64) of the Evidence Act.

Matters not in dispute

11 The parties agreed that the deceased lived at her home in Revesby until admitted to hospital on 7 July 2002. She was transferred from hospital to the Kilbride Nursing Home at Rosemeadow on 2 August 2002 and did not return to her home before her death on 12 February 2007. The records of the nursing home do not mention any solicitor visiting the deceased at the nursing home, the deceased being taken out to visit a solicitor, or any staff discussing the deceased’s testamentary affairs with her.

Plaintiff’s evidence

12 The plaintiff gave evidence that he had contact with the deceased (his aunt) over the years. In 1999 she asked for his help with her shopping as she said she did not “want to ask Dorothy and Neil to do it for me”. The plaintiff began to visit the deceased weekly on Thursdays from 1999.

13 On 18 April 2002 the plaintiff asked the deceased how she wanted him to pay for her funeral in the event of her death. She told him that she wanted to update her will and asked him to contact Mr Austin, her solicitor, and make a time for them to visit Mr Austin as the plaintiff would need to take her to Mr Austin’s office. The plaintiff often drove the deceased to appointments as she walked with a stick and some difficulty. The plaintiff made the appointment and drove the deceased to Mr Austin’s office on 2 May 2002. The plaintiff’s diary shows the appointment date and time with the deceased’s solicitor.

14 The plaintiff waited in the reception area while his aunt saw Mr Austin in his office. About half an hour later Mr Austin came out and asked the plaintiff if he was “hard up”. The plaintiff replied that he was not. Mr Austin said that was just as well because the deceased wanted to leave the plaintiff her entire estate and the plaintiff would not get anything if it appeared he had influenced her. The plaintiff said that the deceased had never mentioned her intentions to him. Mr Austin then told the plaintiff that the deceased wanted to give him a power of attorney. The plaintiff said he really did not have the time to do it as he cared for his elderly mother but if no one else could assist he would accept the appointment. Mr Austin said that the plaintiff was “entitled to something for all the work you have been doing and will have to do in the future” and said he would raise it with the deceased. Mr Austin returned to his office. After about an hour he came back and asked the plaintiff into the office with the deceased. While Mr Austin was in his office with the deceased the plaintiff saw the receptionist/secretary go into and leave the office on more than one occasion. When she retuned to the reception area the plaintiff saw her typing.

15 The deceased was sitting opposite Mr Austin. There was another chair to her left and Mr Austin asked the plaintiff to sit in that chair. According to the plaintiff’s affidavit there was a document on the desk in front of Mr Austin. In cross-examination he said there were two documents in front of Mr Austin. One document was typed and had more than one page. Mr Austin said words to the effect “following our conversation in the waiting room Peter, your aunt has prepared a will and I am going to let you know the details. I am going to read to you from the will and advise you who the beneficiaries are”. Mr Austin then looked at the document in front of him. The plaintiff looked at the document on the desk and saw what appeared to be signatures on the bottom of the page. Mr Austin appeared to read from the document using formal language. The plaintiff cannot recall the exact words read to him but can recall words to the following effect:

…apart from gifts of jewellery I give devise and bequeath the residue of my estate to be divided into three parts, I give one part to my niece Dorothy Emma Johnston and her husband Neil Johnston, one third part to Peter James Clines, and one third part to Brian Charles Hartley, Lois Ann Byrne, and Ruth Elizabeth Mitchell in equal shares.

16 Mr Austin then spoke about the jewellery. He read from the document in front of him in formal legal language and said words to the effect “I leave my pendant to Maxine Evonne King and the remainder of my jewellery to Belinda Mitchell”. He said words to the plaintiff to the effect “You are the sole executor of the will”. Mr Austin then said, “Your aunt wants you to be power of attorney”. Mr Austin passed a document to his aunt and she signed it and passed it back to Mr Austin who then signed it.

17 The plaintiff said he recalled the words read out very clearly and had no doubt about their effect. He said that he did not see the deceased take any documents away from Mr Austin’s office. He agreed she always carried a handbag and he did not know what it contained. When they left, the documents remained on Mr Austin’s desk. The meeting with Mr Austin took approximately two and a half hours.

18 A short time later his aunt received an invoice at her home. She did not have a cheque book and asked the plaintiff to pay the invoice by cheque. On 17 May 2002 the plaintiff drew a cheque for $616.00 to Packer Austin, solicitors, on account of “Vera (Will))”. The cheque was deposited on 17 June 2006.

19 On or about 26 July 2002 (after the deceased was taken ill and admitted to hospital) the plaintiff received a letter from Packer Austin, solicitors, at his home address as follows:

We recently had an enquiry from a solicitor acting for Neil and Dorothy Johnston, as to the whereabouts of Mrs Robinson’s will and Power of Attorney, and informing us that she was gravely ill. We have responded informing them that the current will and power of attorney do not appoint either of them as executor or attorney. We write to you as a matter of record to ensure that you are aware of the circumstances.

20 On 30 July 2002 the plaintiff telephoned Mr Austin and requested three copies of the power of attorney. He needed the document to deal with Centrelink, the Commonwealth Bank, and Bankstown Council. He wrote a note recording that request on the letter dated 25 July 2002. He received copies of the power of attorney a few days later.

21 After the deceased was admitted to hospital and transferred to the nursing home in 2002 the defendants told the plaintiff they would pack up the deceased’s house and give items to the plaintiff to dispose of. The plaintiff also went to the deceased’s house to collect some items. He did not remove any papers and did not see any will or legal documents in the house.

22 In January 2007 the deceased was admitted to hospital. The plaintiff went with his mother the next day to visit. He telephoned each day and took his mother for another visit on 25 January 2007. At about the end of January the hospital called the plaintiff to advise that the deceased was returning to the nursing home, as there was no more the hospital could do. The plaintiff visited the deceased at the nursing home on 3 February 2007. The deceased was playing bingo. The nursing home called the plaintiff on 12 February 2007 informing him the plaintiff was very ill and would not live long. The plaintiff telephoned Neil Johnston to let him know. The plaintiff took his mother to the nursing home and arrived just before the deceased’s death. The plaintiff made the funeral arrangements for the deceased with the defendants.

23 After the visit to Mr Austin on 2 May 2002 and the discussion of payment of his invoice thereafter, the deceased never said to the plaintiff that she made a new will or destroyed the one Mr Austin had prepared. The plaintiff did not take her to see any solicitor and the deceased did not say she had done so. The plaintiff thought it unlikely that he and the deceased never discussed the 2002 testamentary document at any time but could not say one way or another.

Mr Austin’s evidence

24 Mr Austin is a solicitor. He practised from an office in Five Dock between February 1990 and 31 December 2005, when he sold the practice to Mr Ginges. Mr Austin was a sole practitioner. From October 2003 Mr Austin had periods of ill health, including time out of the office in 2004 and 2005. He used a locum or employed solicitors during these periods. Many people consulted him about wills. He kept file notes that he placed in chronological order in a miscellaneous file. He also maintained two document registers, one for wills and one for other documents. The wills register was not a register as such but consisted of wills in packets maintained in alphabetical order.

25 Mr Austin said that it was invariably his practice to issue a tax invoice for a will only after the will was executed.

26 Mr Austin witnessed the deceased’s 1993 will but he had no recollection of his encounter with her at that time.

27 According to a file note Mr Austin saw the deceased on 26 July 1999 but he had no recollection of his encounter with her at that time. The file note refers briefly to some of the deceased’s assets and relatives but does not mention a will.

28 Mr Austin also had no recollection of an occasion in 2000 when Mr Neil Johnston took the deceased to see him. Mr Austin said he was rarely in his office in 2000 as he had been dealing with a serious health issue from December 1999 throughout the year.

29 Mr Austin had some recollection of his encounter with the deceased on 2 May 2002 and, at that time, remembered seeing the deceased in 1993. According to his affidavit he recalled the deceased was an elderly lady and had been brought into the office by her nephew. Mr Austin had not seen the nephew before. Mr Austin had a slight recollection of the deceased telling him of “something going on in the family”. He recalled that he interviewed the deceased alone. He did so partly because of the deceased’s age and partly because it was his practice to do so when a person who might take a benefit under a will accompanied an elderly person. He took these steps to avoid any possibility of influence and ensure that the wishes of the client alone were truly expressed. Mr Austin recollected that the deceased wished to remove some beneficiary or beneficiaries from her testamentary wishes because she had no contact with them and benefit the nephew who accompanied her. Mr Austin faintly recalled debating with the deceased whether she should do so and recalled at least challenging and testing her intentions. Mr Austin recalled that the deceased wished to appoint the nephew as her attorney and that she executed a power of attorney on that day. He also recalled that she wished to appoint this same nephew as her only executor.

30 Mr Austin confirmed that the writing on the will packet “8 September 1993” and “Vera May Robinson” was not his. The writing on the packet “+ codicil 2/5/02” was his. When a codicil was executed, it was Mr Austin’s practice to place the codicil in the same will packet as the original will. Mr Austin said that from this notation on the packet he knew the deceased had executed a codicil on 2 May 2002 but had no recollection of the execution of the document.

31 Mr Austin confirmed his signature on the letter to the plaintiff on 25 July 2002. He had no independent recollection of the name of the person who accompanied the deceased to his office on 2 May 2002. However, he was sure that the addressee of the letter on 25 July 2002 was the person who had brought the deceased into his office. Mr Austin cannot recall why he used the words “current will” in the letter but sometimes he would use the words will and codicil interchangeably when dealing with a layperson.

32 Mr Austin did not recall the deceased or any person on her behalf asking for the codicil to be delivered. If the codicil had been uplifted Mr Austin would have noted this on the will packet. Mr Austin has no recollection of any locum or employed solicitor informing him of the uplifting of the codicil.

33 When Mr Austin handed over his practice to Mr Ginges he left all the records with him, save for a few matters. Mr Austin did not take any documents or records relating to the deceased with him.

34 When cross-examined Mr Austin confirmed that he had some recollection of his encounter with the deceased in May 2002. This was the only encounter he recalled (independently of documents) other than the fact that, in 2002, he remembered having seen the deceased in 1993.

35 Mr Austin was asked about the card bearing the notation “Robinson, Vera May” and the words “4/5/91” struck through, the words “8/9/93” written on in different pen, with the deceased’s address noted. Mr Austin recalled that he had asked a clerk to record wills on a card index system but Mr Austin did not use that system. He went directly to the wills in alphabetical order. That clerk left in the mid 1990s.

36 When asked about his invoicing practice Mr Austin explained that the fact that he did not invoice clients until a will was executed did not mean he would send an invoice out after the client’s attendance. As often as not he would invoice on the spot by issuing a receipt. If he issued an invoice later he would often, but not always, send a covering letter. Sometimes an invoice would be sent under a “with compliments” slip only.

37 Mr Austin did not recall whether he retrieved the 1993 will on 2 May 2002 but thought it almost certain he did so as that was his practice. He agreed that his notation “+ codicil 2/5/02” was different from a new will and a codicil would not have involved a complete revocation. He confirmed his practice of placing a codicil with the original will in the will packet but did not know if he had done so on 2 May 2002.

38 Mr Austin also confirmed that he recalled the nephew bringing the deceased to his office and sitting outside while Mr Austin discussed matters with the deceased. According to Mr Austin the nephew might have come into the office at some time but he did not recall that having occurred. Mr Austin recalled that in the presence of the deceased and the nephew he secured the deceased’s agreement to talk to the nephew about the deceased’s affairs. There might have been more but Mr Austin could not say.

39 Mr Austin agreed that if a will was revoked he adopted two steps. His most common practice was to destroy the revoked will. However, if his suspicions were aroused Mr Austin would try to get instructions not to destroy the revoked will but for him to keep it.

40 When asked if he knew what the deceased had done on 2 May 2002 Mr Austin said she made a codicil as it was inconceivable that he would have marked the will packet “+ codicil 2/5/02” without something to ground it. When asked about its terms the following exchange occurred:

Q. You can't tell us what was in the codicil or what its contents were, can you?
A. What I can say is that since - I can say that a document giving effect to her testamentary wishes was executed and I can say that it was some sort of simple edit of a prior document. That is, deleting somebody or substituting somebody in one or more places rather than a fresh draft on a different tack because that's in the nature of how I would have approached choosing to do a codicil, to save time rather than reopening.

Q. And that's all you can tell us, isn't it?
A. Yes, I think so - I can tell you one other thing. I can tell you that Mr Clines almost certainly figured in the new document given that he was ushering her around, I did receive her consent to deal with him and he was the person I wrote a subsequent letter to. So I'm pretty sure that he was written into something.

Q. But you don't know how or why or the detail?
A. No.

41 When asked whether it was his practice to read back a will after it was executed Mr Austin said he might do so if some peculiar occasion called for it but his normal practice was to do so before execution. He thought it likely his secretary was the other witness to the document. It was his practice to give testators a copy of the testamentary document and discuss with them the location of the original but it could vary. He would usually prepare a folder with some information about his practice into which he would place the copy. However, according to Mr Austin, if an elderly lady said she did not want the documents then he might not have given them to her. The cheque for $616 indicated two hours work plus GST. From that Mr Austin inferred that he carefully took instructions, checked out the issue of influence given the new face of the nephew that brought the deceased into the office, and prepared a document. His normal practice where a person was elderly and brought in by a new person was to give considerable attention to both testamentary capacity and influence. He could recall having some suspicions and concerns as there was a new person coming into play so Mr Austin inferred that he would have conformed to his usual practice about capacity and influence.

42 Mr Austin could not say what happened to the document of 2 May 2002. In the usual course it would have been placed in the packet with the 1993 will. One possibility was that a document was executed in 1999 and the 2002 document was placed with the 1999 document but Mr Austin did not believe any document was executed in 1999. Another was that the 2002 document was placed with the 1993 will but had become separated. He might or might not have taken the 2002 document out of the will packet when he prepared the letter of 25 July 2002.

Mr Ginges’ evidence

43 Mr Ginges is the defendants’ solicitor. Mr Ginges said that, on buying Mr Austin’s legal practice (Packer Austin) in December 2005, he took custody of all the practice’s records. When he was informed of the deceased’s death he went to Packer Austin’s card system for wills and found a card bearing a notation “Robinson, V.M. (Mrs)” and the words “4/5/91” struck through, the words “8/9/93” written on in different pen, with the deceased’s address noted and a card saying “Robinson, Vera May” with deed packet 448 noted. Mr Ginges recovered that deed packet. It contained an original certificate of title and a power of attorney. The power of attorney is dated 2 May 2002 and appoints the plaintiff as the deceased’s attorney. Mr Ginges found the will packet relating to the deceased. He found the will dated 8 September 1993 in the will packet. He carried out further searches after receiving communications from the plaintiff’s solicitor but found no further documentary evidence of a later will.

44 In cross-examination Mr Ginges said he had received instructions from the defendants in March 2007. They told him their aunt had died. They did not produce a copy of the 1993 will. There were thousands of will packets but it was not difficult to look through (as opposed to in) each packet. He found the relevant will packet immediately after looking in the card system. He did not notice the notation in handwriting “+ codicil 2/5/02” on the will packet until some months later in October. Inside the packet he found the original of the 1993 will and nothing else. He searched for any will packet relating to the deceased but had found only the 1993 will.

Mr Johnston’s evidence

45 Mr Johnston knew the deceased for 54 years. The deceased asked if he and his wife would be her executors and attorney in 1993. Mr Johnston replied he would. A few weeks before 8 September 1993 he took the deceased to Mr Austin’s office. Mr Johnston waited in the reception area while the deceased saw Mr Austin. He accompanied her to Mr Austin’s office again on 8 September 1993. Mr Austin and the deceased came out of his office and Mr Austin said, “I am destroying the prior will” and then tore up a document in front of Mr Johnston. The deceased never discussed the 1993 will with Mr Johnston and he did not see a copy until after her death.

46 Mr Johnston accompanied the deceased to Mr Austin’s office again in 1999. The deceased did not disclose the reason for seeing the solicitor on this occasion. Mr Johnston waited in reception for 2 to 3 hours.

47 Mr Johnston again took the deceased to Mr Austin’s office in 2000. The deceased did not disclose the reason for seeing the solicitor on this occasion. However, in the vehicle on the way home the deceased said words to the effect “making a will is like cutting up a cake. There are big slices and little slices”. He replied, “I don’t really want to know”. In 1999 after this attendance the deceased said, “I don’t want to go back to David Austin’s office and sign the papers”.

48 In cross-examination Mr Johnston said the plaintiff asked for help cleaning out the deceased’s home after she went into the nursing home. He and his wife did so. The only papers they found were old service accounts they threw out. He did not see any legal documents. In 1993, 1999 and 2000, so far as Mr Johnston knew, the deceased did not take away any papers from the solicitor’s office. She always carried a handbag but he did not know what was in it.

Mrs Johnston

49 In 1999 Mrs Johnston helped the deceased to clean up her house. The deceased picked up a document and said it was her will and began to read from it. Mrs Johnston told her to put it away as she was not interested. The deceased said, “well, you’re getting a third and the Hartleys are getting two thirds between them”. She then folded the document and put it back into the envelope. Mrs Johnston had no other conversations with the deceased about her will.

50 In cross-examination Mrs Johnston said that when she cleaned the deceased’s house with her husband after the deceased was admitted to the nursing home the only documents they saw were old bills, birthday cards, and Christmas cards. They did not see any legal documents. Mrs Johnston was not looking for a will as the plaintiff had told her that the deceased had made a will in 2002 and Mrs Johnston thought the plaintiff had the will. The plaintiff had told her many times after the deceased was admitted to the nursing home that the deceased had made a new will in 2002 and he was the executor. When the deceased became seriously ill in 2002 Mrs Johnston asked about the power of attorney, not the will. The plaintiff told Mrs Johnston that she was getting a third, he was getting a third and the Hartleys a third under the new will, with the plaintiff appointed as executor. Mrs Johnston never spoke to the deceased about her will. Mrs Johnston did not have a copy of the 1993 will and nor did her husband.

Was a will or codicil executed on 2 May 2002?

51 The defendants submitted that the plaintiff’s case about the existence of a will or codicil dated 2 May 2002 was contradictory. Given the inconsistent pleading (that is, on 2 May 2002 there either was executed a will revoking all previous wills or a codicil amending the 1993 will) there was not clear and convincing proof of a new testamentary document. Further, Mr Austin’s evidence was inconclusive and contradictory. He was challenged on his affidavit. His recollections in cross-examination were quite different from his affidavit. His “invariable” practices were not invariable. Once Mr Austin’s evidence was discarded (as it should be) the only evidence was that of the plaintiff. The plaintiff had an interest in the outcome as he gained nothing under the 1993 will but a one third share under the asserted 2002 will or codicil. The plaintiff’s evidence of a clear recollection of what was read to him more than five years ago was difficult to believe. The critical evidence missing in this case was any conversation between any person and the deceased about the will or codicil. The deceased saying nothing about having made a new will or codicil to any person was beyond belief. It was also unusual, as Mr Austin agreed, for him to read back a will after (as opposed to before) its execution. Mr Austin’s evidence certainly did not corroborate the content of the will or codicil.

52 I do not accept the defendants’ submissions. There is clear and convincing (indeed, overwhelming) proof that the deceased made a new testamentary document on 2 May 2002. It is true that Mr Austin’s affidavit contained, in addition to his recollections, a reconstruction of what he believed had happened on the basis of the available documentary evidence combined with his independent recollections. Leaving aside this reconstruction, Mr Austin’s oral evidence was consistent with his affidavit. Mr Austin was a careful and measured witness, with no interest in the outcome of the proceedings. Contrary to the defendants’ submission, it is not the case that Mr Austin recalled nothing of the encounter with the deceased on 2 May 2002. He consistently said that he had some (but not a complete) recollection of that encounter. He recalled: - (i) remembering the deceased from 1993, (ii) perceiving the plaintiff as a new face, thereby arousing some suspicion and concern given the deceased’s age, (iii) the plaintiff sat outside during the interview with the deceased but might have come inside the office at some time, (iv) telling the plaintiff in the presence of the deceased that the deceased had agreed to him contacting the plaintiff about the deceased’s affairs, but there might have been more, and (v) the new testamentary document amended or substituted something and the plaintiff almost certainly figured in the new document.

53 In isolation these recollections (particularly about the content of the document) are vague. However, these recollections should not be considered in isolation. The plaintiff made a diary note of the appointment with the solicitor on 2 May 2002. Mr Austin recognised his handwriting on the will packet recording “+ codicil 2/5/02”. He considered it inconceivable that he would have made that note unless a codicil was executed on that day. Given Mr Austin’s practice as a solicitor, dealing with many testamentary issues, I agree. Mr Austin also must have sent the deceased an invoice as the plaintiff undoubtedly paid it recording “Vera (will)” as the reason for payment. The invoice was for two hours work. Mr Austin sent a letter to the plaintiff referring to the defendants not being the executors under the current will. Mr Austin’s reference to invoicing clients for a will only after execution was not undermined in cross-examination. Mr Austin explained that an invoice could be rendered either on the spot or by subsequent letter.

54 It is true that the only clear evidence of the contents of the testamentary document of 2 May 2002 is that of the plaintiff and he stands to gain a benefit. Further, the plaintiff believed the deceased had made a new will not a codicil. He also saw what appeared to be signatures on a document before Mr Austin read the document out whereas Mr Austin described his usual practice as reading a will out before it was executed. Mr Austin also said, however, that he might have read a will or testamentary document out after execution if some peculiar circumstance called for it. Despite these issues, the plaintiff’s credit was not damaged in cross-examination.

55 First, the plaintiff’s outline of events was generally consistent with the documents available, Mr Austin’s recollections, and Mr Austin’s descriptions of his usual practice and possible variations of that practice.

56 Secondly, the fact that the plaintiff clearly recalled what he considered the important parts of what Mr Austin read to him and did not recall peripheral details is consistent with general human experience.

57 Thirdly, the events of 2 May 2002 present a coherent and convincing picture. The plaintiff and the deceased went to Mr Austin’s office on 2 May 2002 so she could update her will. After speaking with the deceased alone, Mr Austin went to the plaintiff and said the deceased wished to leave the plaintiff her whole estate, but he would get nothing if the deceased had been acting under influence. Mr Austin recalled having some suspicion and concern about the new face. His practice, in such circumstances, was to test capacity and influence. After the discussion with the plaintiff Mr Austin spent about another hour alone with the deceased before the plaintiff was called in. Mr Austin said to the plaintiff and deceased that the deceased had prepared a will and he was going to let the plaintiff know the details by reading from the will and advising who the beneficiaries were. The document Mr Austin read out left the plaintiff a third of (and not the whole) residue.

58 Fourthly, Mrs Johnston said that, after the deceased was admitted to the nursing home in August 2002, the plaintiff told her the deceased had made a new will leaving her a third, the plaintiff a third, and the Hartleys a third.

59 Fifthly, the plaintiff’s lack of discussion with the deceased (other than that deposed to by the plaintiff in Mr Austin’s office) appears consistent with a general reluctance on the part of Mr and Mrs Johnston to discuss details of her will with the deceased.

60 Finally, the plaintiff (in common with all the witnesses in this case) gave frank, clear and cogent evidence. I accept the plaintiff as a witness of credit and veracity.

61 I do not accept the defendants’ submission that the alternatives in the plaintiff’s pleading preclude any finding of execution of a testamentary document on 2 May 2002. The alternatives relate to the content and nature of the testamentary document, not the fact of it having been prepared and executed.

62 The defendants submitted that the plaintiff failed to call Mr Austin’s legal secretary so that it must be presumed her evidence would not have assisted the plaintiff’s case (Jones v Dunkel (1958) 101 CLR 298). Mr Austin thought it likely that his legal secretary (Ms Succar) had been involved on 2 May 2002 but could not rule out the possibility of some other remaining staff member’s involvement. The rule in Jones v Dunkel does not apply to merely cumulative evidence (JD Heydon, Cross on Evidence, 7th Australian edition, 2004 at [1215]). The plaintiff called Mr Austin, the employer of the legal secretary who assisted on 2 May 2002. Mr Ginges, the solicitor for the defendants, had control over all of the records of the practice of Packer Austin. In these circumstances the inference that the plaintiff should have called the legal secretary and did not do so for fear her evidence would not assist does not arise.

63 The evidence establishes that the deceased executed a new testamentary document on 2 May 2002. Mr Austin’s note on the will packet, the plaintiff having paid an invoice for $616 shortly thereafter relating to “Vera (will)”, Mr Austin’s letter of 25 July 2002, and the plaintiff’s evidence, provide clear and convincing proof of this fact.

64 I am also satisfied that, through the efforts of Mr Ginges, there has been adequate searches to locate the testamentary document executed on 2 May 2002, but it has not been found.

Did the testamentary document revoke all previous wills?

65 The plaintiff submitted that, where a codicil is executed, the second requirement identified in Curley v Duff is redundant. The defendants submitted that the plaintiff could not assert both that the deceased made a will revoking all previous wills and a codicil amending the 1993 will.

66 The defendants’ approach seems to conflate the task of a pleading with that of factual findings on the evidence. Alternative pleadings do not necessarily lead to inconsistent factual findings.

67 The plaintiff believed that the deceased made a new will on 2 May 2002, I infer, because the deceased told the plaintiff she wanted to update her will, Mr Austin referred to the document he was reading as a will, and the letter of 25 July 2002 referred to the current will.

68 However, Mr Austin sometimes used “will” and “codicil” interchangeably when talking to laypeople. Mr Austin knew the difference between the two and wrote “codicil” on the will packet. This is strong evidence of the testamentary document of 2 May 2002 having been a codicil. The letter of 25 July 2002 refers to the “current will”. This is not inconsistent with the 1993 will having been varied by a codicil. Moreover, Mr Austin did not destroy the 1993 will (in contrast to his destruction of the 1991 will). Finally, the plaintiff’s recollection of what Mr Austin read to him does not extend to any reference to previous wills having been revoked. All of these facts establish that the testamentary document the deceased executed on 2 May 2002 was a codicil to her 1993 will.

69 Accordingly, the relevant issue is the terms of the codicil.

Is there evidence of the terms of the testamentary document?

70 The principal evidence of the terms of the testamentary document is that of the plaintiff. That evidence is supported, to greater or lesser extents, by a number of other pieces of evidence. First, Mr Austin wrote to the plaintiff on 25 July 2002 saying the defendants were not the executors under the current will. They were the executors under the 1993 will so the letter clearly indicates a later testamentary document varying the 1993 will in that respect. Secondly, Mr Austin was certain the nephew who brought the deceased to see him was getting a benefit under the testamentary document (hence, his suspicions and concerns). The plaintiff received nothing under the 1993 will but a third of the residue under the 2002 document so this indicates another variation to the terms of that will. Thirdly, the plaintiff said Mr Austin read to him and the deceased the terms of the testamentary document. I accept the plaintiff’s evidence in this regard. Fourthly, Mrs Johnston said the plaintiff had told her the terms of the new will after the deceased moved into the nursing home. The terms told to Mrs Johnston were consistent with those the plaintiff said were read to him. Mrs Johnston, and not the plaintiff, recalled these conversations in 2002, and did so clearly. Although there was some faint suggestion in the defendants’ submissions to the contrary, to my mind it is inconceivable and inconsistent with the evidence to infer that the plaintiff, from mid to late 2002 onwards, was doing anything other than accurately informing Mrs Johnston about the events of 2 May 2002 as he has represented them in his evidence.

71 The plaintiff’s evidence of the terms of the testamentary document was clear and cogent. Maxine King was to receive the deceased’s pendant. Belinda Mitchell was to receive the rest of the deceased’s jewellery. The residue was to be divided into three parts with one third to the defendants, one third to the plaintiff and one third to Brian Hartley, Lois Byrne and Ruth Mitchell in equal shares. The plaintiff was to be the sole executor.

72 As the plaintiff submitted, In re Wray, Dec’d; Wray v Wray [1951] Ch 425 at 434 and Re Spensely’s Will Trusts; Barclays Bank Ltd v Staughton [1952] Ch 886 at 898, referred to by the defendants, do not undermine the plaintiff’s case. Those decisions concern the construction of a codicil and the onus of proof. The plaintiff’s evidence about the terms of the testamentary document of 2 May 2002 was clear. Insofar as those terms dealt with the division of the residue and the executor, they were irreconcilable with the terms of the 1993 will. Accordingly, I am satisfied that the terms of the testamentary document executed on 2 May 2002 were to the effect deposed to by the plaintiff.

The presumption of destruction

73 The defendants pointed out that: - (i) there were approximately two months between 2 May 2002 and the deceased being admitted to hospital on 7 July 2002, (ii) the deceased lived alone in her home during that period, (iii) during that period the deceased was capable of collecting her mail from her post box (just as, presumably, the deceased collected the invoice sent to her by Mr Austin), (iv) Mr Austin did not give evidence about the nature and content of the communication with the deceased when he sent the invoice (for example, in a covering letter), (v) Mr Austin had no recollection of where any testamentary document of 2 May 2002 was put or held, and (vi) accordingly, the plaintiff had not rebutted the presumption that the deceased destroyed any testamentary document of 2 May 2002 with the intention of revoking that document.

74 The plaintiff submitted that: - (i) the presumption of destruction depended on the original will being traced into the custody of the deceased, (ii) in this case the evidence established that the deceased never had the original of the 2 May 2002 document, (iii) rather, Mr Austin had the original, (iv) in any event, the presumption may be rebutted and, where a careful and complete disposition of property has been made and no other circumstance suggests probable destruction (as here), the presumption is so slight that it may be said not to exist.

75 The evidence supports the plaintiff’s submission that the deceased never had custody of the testamentary document of 2 May 2002. At that time the deceased was 86 years of age. On 2 May 2002 she executed a power of attorney giving the plaintiff control of her affairs. Mr Austin recalled obtaining the deceased’s agreement to deal with the plaintiff about her affairs. This is consistent with the letter Mr Austin sent on 25 July 2002 to the plaintiff. Mr Austin maintained custody of the original 1993 will. These circumstances point overwhelmingly to Mr Austin maintaining custody of the testamentary document of 2 May 2002. They also indicate that it is most unlikely that Mr Austin gave the deceased a copy of that document. Further, the suggestion that Mr Austin might have sent the testamentary document of 2 May 2002 to the deceased by mail after that date is highly improbable in this context.

76 In consequence, I am not satisfied that the presumption of destruction arises at all. If I am incorrect in this regard then it must also be taken into account that: - (i) there is no evidence of how the deceased might have kept important documents, other than that, in 1999, she had a copy of the 1993 will in an envelope, (ii) this fact is known because the deceased needed help to clear and clean her house, (iii) the period of time between the execution of the testamentary instrument on 2 May 2002 and the deceased’s admission to hospital was only two months, and (iv) the copy of the 1993 will the deceased had in 1999 has never been located. To this must be added another fact relevant to any presumption, namely, that Mr Austin’s record keeping system for wills (at least after his clerk left in the mid 1990s) was dependent on documents being placed in the correct package and the package being maintained on the wire racks. Mr Austin’s system did not include a continuous or complete record or register independent of the packets in which the documents were maintained (presumably the reason that Mr Austin did not use the card system created by the clerk who left by the mid 1990s). When these matters are taken together with the fact that nothing in the evidence suggests any reason founding a change in the deceased’s attitude to the beneficiaries, any presumption arising may fairly be described as slight and readily rebutted.

Conclusions and orders

77 I am satisfied that the plaintiff has established that the deceased executed a codicil to her 1993 will on 2 May 2002 in terms to the effect deposed to by the plaintiff. Further, despite adequate searches this codicil cannot be located. I consider that the presumption of destruction by the deceased with the intention of revoking the codicil does not arise or has been rebutted on the evidence. It follows that declarations and orders should be made to the general effect of those sought by the plaintiff in paragraphs (6) to (10) of the amended statement of claim, subject to the fact that the terms of the codicil set out in paragraph (6) do not fully reflect the evidence of the plaintiff that I have accepted. In particular, (apart from typographical errors) paragraph (6) does not refer to the division of the residue being separate from the bequests of jewellery (in accordance with the plaintiff’s evidence) or the last third portion of the residue being divided between Brian Hartley, Lois Byrne (not, apparently, “Burn”) and Ruth Mitchell being “in equal shares”. Paragraph (6) also does not refer to the bequest of the pendant to Maxine Evonne King and the remainder of the jewellery to Belinda Mitchell in accordance with the plaintiff’s evidence. I direct the plaintiff to file draft orders consistent with my findings within 7 days (including with respect to costs mentioned below) on the basis that the orders will be made in chambers. The exhibits, other than exhibit F, may be returned.

78 As to costs, senior counsel for the plaintiff indicated in opening that the notation on the will packet alone required investigation (being a fact relevant to any costs order). Accordingly, I also propose to hear the parties on costs before making final orders.

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18/06/2008 - Add Judgment date to the coversheet - Paragraph(s) N/A