Elton v Public Trustee
[2014] SASC 149
•14 October 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
ELTON v PUBLIC TRUSTEE
[2014] SASC 149
Judgment of The Honourable Justice Stanley
14 October 2014
SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - WHEN LOST, MISLAID, DESTROYED OR NOT AVAILABLE
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - ALTERATION AND REVOCATION OF GRANTS - GENERALLY
SUCCESSION - MAKING OF A WILL - REVOCATION - METHODS OF REVOCATION
SUCCESSION - MAKING OF A WILL - EXECUTION
On 22 February 1991 Donald Kerry Walker (the deceased), made a will. The will appointed the Public Trustee as the executor of the deceased’s estate. Under the will the sole beneficiary of the deceased’s estate was his nephew. The deceased died on 16 December 2010. His nephew had predeceased him. On 19 July 2011 the Public Trustee obtained a grant of probate of the deceased’s will.
The plaintiff seeks orders revoking that grant of probate and the admission to probate of a document entitled “Irrevocable Order” as the last will and testament of the deceased. The application seeks ancillary orders that the plaintiff be appointed the sole executor of the estate, or in the alternative, that he be granted letters of administration.
The plaintiff’s case is based on an allegation that in or about 1996 the deceased created the irrevocable order. The plaintiff alleges this document should be admitted to probate as a lost and informal “will” pursuant to s 12 of the Wills Act 1936 (SA) as the last expression of the deceased’s testamentary intentions. Neither the original nor a copy of the document has been located.
Whether the Irrevocable Order existed. Whether the Irrevocable Order revoked all previous wills. Consideration of the principles relating to lost wills.
Held (dismissing the plaintiff’s claim):
1. Sometime in 1996 the deceased prepared a document (at [47]).
2. The evidence relating to the terms of the document is inconsistent and ultimately unreliable (at [50] - [60]).
3. The document did not revoke or extinuish the 1991 will (at [58] - [61]).
Wills Act 1936 (SA) s 12; Family Relationships Act 1975 (SA), referred to.
Re Estate of Hall (Deceased) [2011] SASC 117; Cahill v Rhodes [2002] NSWSC 561; In the Estate of Ralston (Unreported, Supreme Court of New South Wales, 12 September 1996); Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; Briginshaw v Briginshaw (1938) 60 CLR 336; Orifici v Orifici [2007] WASC 74; Dalton v Dalton (Unreported, Supreme Court of Western Australia, 24 September 1997); Dolan v Dolan [2007] WASC 249; Gruzdeff v Lough (Unreported, Supreme Court of New South Wales, Hodgson J, 22 August 1997); Whiteley v Clune (No 2) (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993); Payten v Perpetual Trustee Company [2005] NSWSC 345; Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535; Welch v Phillips [1836] 12 ER 828; McCauley v McCauley (1910) 10 CLR 434; In the Estate of Gibbs [2012] SASC 230; Jones v Dunkel (1959) 101 CLR 298, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"Last will and testament"
ELTON v PUBLIC TRUSTEE
[2014] SASC 149Civil
STANLEY J
Introduction
On 22 February 1991 Donald Kerry Walker (the deceased) made a will. The will appointed the Public Trustee as the executor of the deceased’s estate. Under the will the sole beneficiary of the deceased’s estate was his nephew, Mostyn Walker (Mostyn). The deceased died on 16 December 2010. Mostyn had predeceased him.[1] On 19 July 2011 the Public Trustee obtained a grant of probate of the deceased’s will.
[1] Mostyn died on 16 January 2010. He had not married and left no issue.
The plaintiff, Michael Elton, seeks orders revoking that grant of probate and the admission to probate of a reconstruction of a document entitled “Irrevocable Order” as the last will and testament of the deceased. The application seeks ancillary orders that the plaintiff be appointed the sole executor of the estate or, in the alternative, that he be granted letters of administration.
The principal asset of the deceased’s estate is a residential property at 44 Victoria Street, Prospect.
The plaintiff’s case is based on an allegation that in or about 1996 the deceased created the irrevocable order. The plaintiff alleges this document should be admitted to probate as a lost and informal “will” pursuant to s 12 of the Wills Act 1936 (SA) as the last expression of the deceased’s testamentary intentions. Neither the original nor a copy of the document has been located.
Indeed, the evidence suggests that the deceased created two handwritten documents entitled “Irrevocable Order” which he gave to the plaintiff and Mostyn in late 1996. On the evidence, neither document was properly executed as a will. The only evidence as to the existence of the document is the evidence of the plaintiff, his father, and his former fiancée, Teresa Dabrowski. The only evidence as to the contents of the document is the evidence of the plaintiff and his father. The plaintiff says he saw the document twice. He alleges he first saw the document in 1996 in the course of a discussion between the deceased, Mostyn and himself. He saw the document again in 2008. The plaintiff’s father, Mr Bacic, gave evidence that he assisted the deceased in drafting the irrevocable order although he did not read it. Mr Bacic said the deceased discussed his intentions to leave his home half to the plaintiff and half to Mostyn.
The plaintiff alleges that the irrevocable order “extinguished” all previous wills and left the house property to him on the condition that he pay Mostyn half the agreed value of the house within a reasonable time after the deceased’s death. The document bequeathed the deceased’s motor vehicle, a 1980 Gemini, to the plaintiff, and left his household belongings to be shared between the plaintiff and Mostyn.
The reconstructed document was admitted into evidence.[2] It is in the following terms:
[2] Exhibit ME 4 of the Affidavit of Michael Elton sworn 8 August 2014 (Trial Exhibit P1).
IRREVOCABLE ORDER
I, Donald Kerry Walker of 44 Victoria Street, Prospect, S.A. 5082 am writing this Irrevocable Order to extinguish all previous Will and Testament’s regarding my Estate and Affairs.
The purpose of this document is written because I am unable to formally change my last Will of 1999 due to the disagreement I have had with my brother Bruce Walker.
In the event of my death, it is my express wishes that all of my Estate and Affairs are left to my grandson, Mr Michael Elton of 1/7 Gabriel Place, Florey, A.C.T 2615.
My house located at 44 Victoria Street, Prospect S.A. 5082 is left to my grandson Michael Elton.
My nephew Mostyn Walker is entitled to half the value of my house (44 Victoria Street, Prospect S.A. 5082) at the time of my death.
My grandson Michael Elton must pay my nephew Mostyn Walker half the agreed value of my house within a reasonable time after my death.
My motor vehicle, a 1980 Gemini is to be left to Michael Elton.
My household belongings can be shared between my grandson Michael and my nephew Mostyn.
This Irrevocable Order document is my last Will and Testament and is written by me, the said Donald Kerry Walker of 44 Victoria Street, Prospect, S.A. 5082 on …………1996.
SIGNED: DK WALKER ??/??/1996.
Obviously as the reconstructed document was created after the deceased’s death, it is unsigned.
Section 12 of the Wills Act 1936
Section 12 of the Wills Act 1936 (SA) provides:
12—Validity of will
(1) A will is valid if executed in accordance with this Act, notwithstanding that the will is not otherwise published.
(2) Subject to this Act, if the Court is satisfied that—
(a)a document expresses testamentary intentions of a deceased person; and
(b)the deceased person intended the document to constitute his or her will,
the document will be admitted to probate as a will of the deceased person even though it has not been executed with the formalities required by this Act.
(3) If the Court is satisfied that a document that has not been executed with the formalities required by this Act expresses an intention by a deceased person to revoke a document that might otherwise have been admitted to probate as a will of the deceased person, that document is not to be admitted to probate as a will of the deceased person.
…
In Re Estate of Hall (Deceased)[3] Gray J summarised the principles applicable to the admission of a copy of a missing will to probate as follows:[4]
[3] [2011] SASC 117.
[4] [2011] SASC 117 at [15].
·that the original will existed;[5]
·that the original will was duly executed;[6] or, if the original will does not fulfil the formalities required by legislation, that it satisfies the legislative requirements allowing it, as an informal will, to be admitted to probate;[7]
·that there is evidence of the terms of the original will;[8]
·that the copy will is an accurate and complete copy of the original will;[9]
·that thorough searches have been conducted to find the original will,[10] including publishing advertisements regarding the missing original will;[11]
·that the original will revoked all pre-existing wills;[12]
·the circumstances surrounding the absence of the original will;[13]
·that all persons prejudiced by the application, if it is granted, have consented to the application and are sui juris;[14] and
·that the presumption of revocation does not arise or has been rebutted.[15]
[5] In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; In the Estate of Roediger Deceased [1967] SASR 118, 120; Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 718; In the Will of Molloy [1969] 1 NSWR 400.
[6] Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 719; In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; In the Estate of Roediger Deceased [1967] SASR 118, 120; Gair v Bowers (1909) 9 CLR 510.
[7] See for example, section 12(2) of the Wills Act 1936 (SA); see also, Cahill v Rhodes [2002] NSWSC 561, [53]-[55].
[8] Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 719.
[9] In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; In the Estate of Roediger Deceased [1967] SASR 118, 120.
[10] In the Estate of Engelhardt Deceased [2010] SASC 196, [20].
[11] In the Estate of Roediger Deceased [1967] SASR 118, 120.
[12] Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 718-719.
[13] In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; In the Estate of Roediger Deceased [1967] SASR 118, 120.
[14] In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; In the Estate of Roediger Deceased [1967] SASR 118, 120.
[15] Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 719; Allan v Morrison [1900] AC 604.
The plaintiff’s case
Mr Ower, counsel for the plaintiff, submits that the Court should find that in about June 1996 the deceased created the irrevocable order for the purpose of expressing his testamentary intention. He did so with the advice and assistance of the plaintiff’s father, Mr Bacic, while recuperating at Mr Bacic’s home following a heart attack. It was handwritten. Sometime thereafter, the deceased created a further handwritten copy of the irrevocable order. In December 1996 the deceased had a discussion with the plaintiff and Mostyn. This occurred in the lounge room of the deceased’s house at Prospect. He explained that he was leaving his estate to them and gave each of them a version of the irrevocable order. He explained that he was doing it this way because of the nature of his relationship with his brother Bruce. The plaintiff read the document. At the deceased’s direction the plaintiff put his version of the irrevocable order in an orange coloured envelope which was placed in a cardboard box in a store room in the deceased’s house. He does not know what Mostyn did with his version of the document. In about 2002 the deceased had a discussion with Ms Dabrowski in the lounge room of his house. He told her he had put something in writing to say that the plaintiff and Mostyn would have his property, that he trusted the plaintiff to pay Mostyn out, and that Mr Bacic helped him with the document. In August 2008 the plaintiff again saw the document. It was in the same envelope in the same box in the deceased’s house. After the death of the deceased, in February 2011, the plaintiff visited the Victoria Street property. The irrevocable order was no longer in the cardboard box and could not be found.
The plaintiff submits the Court should revoke the grant of probate of the 1991 will on the grounds that the irrevocable order is a subsequent testamentary instrument.
Even if the Court cannot be satisfied as to the exact words used in the irrevocable order or satisfied as to the entire contents of the irrevocable order, probate may be granted to so much of the contents as the Court finds proved. The plaintiff submits that the Court can be satisfied that the irrevocable order revoked all prior wills, made the plaintiff the executor of the estate, bequeathed the Victoria Street property to the plaintiff on the condition that he pay Mostyn 50 per cent of the market value of the property and left his personal effects to be shared between the plaintiff and Mostyn. The plaintiff submits the deceased intended the irrevocable order to have effect as a testamentary instrument. He submits that the presumption of revocation does not arise in this case because the irrevocable order cannot be traced to the deceased. Alternatively, the existence of the presumption should be reconsidered. In the further alternative, he submits that the presumption is rebutted and that the circumstantial evidence supports the finding that the reason the document cannot be located was not because the deceased destroyed it.
The defendant’s case
Mr Doyle SC, counsel for the defendant, submits that the evidence adduced by the plaintiff is an insufficient basis for the Court to conclude that the irrevocable order existed. In the alternative, its submits that even if the Court was prepared to find that the irrevocable order existed, there is an insufficient basis on the evidence to conclude that the document expressed the deceased’s testamentary intentions; an insufficient basis to conclude it was intended by the deceased to constitute his will; and an insufficient basis to determine the terms of the document or to overcome the presumption of revocation.
Findings of fact
The deceased was born on 17 August 1921. He had a younger brother, Bruce Walker, who died on 9 June 2010. I am satisfied on the evidence that Bruce Walker had a domineering personality and exercised a strong influence over his older brother’s conduct, at least in respect of the later years of their lives.
I am satisfied that the plaintiff and the deceased enjoyed a close relationship. The plaintiff was born in 1970. He came to know the deceased in his late teens. They lived in the same street. In his early twenties he lived with the deceased in the Victoria Street property during the years 1990 and 1991. After that the plaintiff stayed with the deceased on various occasions until the plaintiff moved interstate. The deceased took an active interest in the plaintiff’s life and career. He was encouraging and supportive. In 1994 the plaintiff moved to Canberra. He left some of his belongings at the deceased’s house in Victoria Street. He continued to live in Canberra until the deceased’s death. He would travel to Adelaide on a regular basis and visit the deceased. The deceased would visit Canberra from time to time to see the plaintiff. The deceased would stay at the plaintiff’s home in Canberra for weeks at a time. The deceased referred to himself as the plaintiff’s grandfather, although they did not share any familial relationship. The deceased provided the plaintiff with keys to the Victoria Street property. In 2006 the plaintiff purchased a house in Canberra with a downstairs flat. It was the plaintiff’s intention that ultimately the deceased would move to Canberra and live with him and his fiancée, Ms Dabrowski. This did not occur. Sometime around a decade ago, the deceased spoke to Ms Dabrowski and told her that Bruce had made him exclude the plaintiff from his wishes. He said he put something in writing that the plaintiff and Mostyn would have his property and that he trusted the plaintiff to pay Mostyn his share of the value of the house. He did not speak in terms of his “estate” or “will”. He added that Mr Bacic had assisted in preparing this “agreement or document”.
By 2007 the deceased was suffering from bowel cancer. He was no longer capable of caring for himself independently. Understandably, he became depressed. Since early 2007 he had required the assistance of domiciliary care nurses and Meals on Wheels. This had been organised by Henry Pattenden, the husband of the deceased’s cousin Merlene. At some time during this period Mr Pattenden telephoned the plaintiff to discuss the deceased. Given the effluxion of time it is unsurprising there is a discrepancy in their recollection of the contents of the conversation. I cannot be satisfied of anything more than that this conversation concerned the deceased. I cannot find when the phone call occurred other than that it was in 2007 or 2008. In about August 2008 the deceased entered a nursing home. It appears this occurred at the instigation of Bruce Walker. I am satisfied it occurred with, at the very least, the acquiescence of Mostyn. In 2007 and 2008, before the deceased entered the nursing home, I am satisfied that responsibility for his care and supervision was assumed by Henry Pattenden and Mostyn. It is likely that Mostyn did so following some prompting from Mr Pattenden.
Sometime after the deceased entered the nursing home, his brother Bruce had the locks changed on the Victoria Street property denying the plaintiff access. The plaintiff continued to visit the deceased periodically once he entered the nursing home. The deceased would ask him to take him home. The plaintiff spoke to Bruce in late 2009 insisting that the deceased move to Canberra to live with him but Bruce would not agree.
Mostyn was Bruce Walker’s son. I am satisfied that the deceased was very fond of him. Henry Pattenden said the deceased loved Mostyn “beyond belief”. In 2008 the deceased granted Mostyn his power of attorney. It is possible, however, that the deceased did this under the influence of his brother. Nonetheless, I infer that the deceased did so because of his affection for Mostyn and his expectation that Mostyn would act in his best interests.
The events of 1996
In about June 1996 the deceased suffered a heart attack. When the plaintiff learned of this, he returned from Canberra to see the deceased. During that visit the plaintiff went to the Victoria Street property. The deceased was not present. The plaintiff gave evidence that while he was there he saw the 1991 will next to another document sitting on a table. The other document was typewritten. He remembers reading the words in the document “My Last Will and Testament leaves everything to Michael Elton”. He says he did not see this document again.
After his discharge from hospital the deceased recuperated at the home of Mr Bacic. Mr Bacic gave evidence that one day in about June 1996 he found the deceased sitting on the lounge crying. The deceased said to him that he was upset. He spoke about his will. He said he wanted to leave his house to the plaintiff and Mostyn. Mr Bacic gave evidence that he suggested to the deceased that he could prepare a document entitled “Irrevocable Order”. He explained that he had experience of preparing such a document from his years as a car dealer. Mr Bacic described how the deceased then took a pad and wrote a document at his direction leaving the house to the plaintiff and Mostyn. Mr Bacic did not read the document. He saw the deceased place it in a white envelope. He told the deceased that he needed to attend at the Port Adelaide Police Station or before a justice of the peace to have the document witnessed. About a week later, Mr Bacic saw the deceased who gestured with two thumbs up. He interpreted this to mean that the deceased had acted in accordance with his suggestion and had organised for the document to be witnessed.
In about December 1996 the plaintiff attended at the Victoria Street property to see the deceased. Mostyn was there. There was a conversation between the three of them. It occurred in the living room. The plaintiff gave evidence that he and Mostyn were sitting on the lounge. The deceased said he wanted to discuss with them the arrangements he had made about his will. The plaintiff gave evidence that the deceased produced two handwritten documents. He gave one to the plaintiff and the other to Mostyn. The deceased explained that the documents had been prepared with the assistance of the plaintiff’s father. The deceased said he had done this because of disagreements he had with Bruce. He said that what he was doing must not be disclosed to Bruce. The plaintiff gave evidence that the deceased explained to Mostyn and him that the deceased’s house was to be left to him and he was to pay Mostyn half the market value of the house. In addition, the deceased was leaving his car to the plaintiff. The deceased said to them that if they did not want any of his scrapbooks or Port Adelaide Football Club photographs they were to donate them to the Club. Further, he said to them that if they did not want any of his train memorabilia they were to donate it to the Railway Society. The plaintiff gave evidence that he read the document given to him by the deceased. It was a single, lined page. It was handwritten by the deceased. It was written in blue ink. It was signed D K Walker 44 Victoria Street, Prospect SA 5082. The deceased had written that the document was to extinguish his previous will. The plaintiff gave evidence that he reproduced the terms of the document as best he could recall them in Exhibit ME 4 to his affidavit. The plaintiff said that Mostyn appeared to read the document given to him by the deceased. At the end of the discussion the document given to the plaintiff was put in an orange coloured envelope and placed in a cardboard box in which the deceased kept his coin collection and other important documents, which was kept in the storeroom. He did so at the deceased’s direction.
The plaintiff gave evidence that the discussion and reading of the document took about five to 10 minutes, no more.
The plaintiff’s visit to Victoria Street in August 2008
The plaintiff gave evidence of attending at Victoria Street in 2008, a few days before the deceased’s birthday, which was 17 August. He said the deceased was extremely upset. The deceased apologised for his use of a colostomy bag. He claimed that Bruce wanted him to move into a nursing home. The plaintiff gave evidence that the deceased handed him his war medals. He said he wanted to go to the bank so that he could give him his money. The plaintiff was very concerned at how depressed the deceased appeared. He was concerned that the deceased did not give up. He attempted to reassure him. The deceased kept insisting that the plaintiff take his war medals but the plaintiff succeeded in distracting him by questioning him about articles in the deceased’s scrapbook. The plaintiff gave evidence that when the deceased went to look for an article he returned the war medals to the cardboard box in the storeroom. The contents of the cardboard box appeared unchanged from when the plaintiff had placed in the box the envelope containing the irrevocable order. The envelope was unsealed. He took the document out of the envelope to check it was still there. The document appeared just as he remembered it from 1996. He placed it back in the envelope and returned the envelope to the box and went back to see after the deceased.
Events subsequent to the death of the deceased
In February 2011 the plaintiff obtained entry to the deceased’s former house at 44 Victoria Street, Prospect. Apparently it had been unoccupied since the deceased entered the nursing home in 2008. Upon entry the plaintiff observed the cupboards in the house were open and their contents had been pulled out. A number of scrapbooks were spread over the lounge room floor. The plaintiff went to the storeroom looking for the cardboard box. His purpose was to obtain documentation evidencing the deceased’s purchase of a cemetery plot. He expected them to be in the cardboard box. He found the box. The burial papers were not to be found. He said in evidence:
Not only was that not there but my grandfather’s bank books weren’t there, my letter wasn’t there – it was in a like yellow/orangey folder bank books, my coin collection, my grandfather’s coin collection [were missing].[16]
[16] T74.30-34.
He explained that his “letter” was a reference to the irrevocable order.[17] All that was left in the box was butcher’s paper and old newspaper clippings.[18] A search of the house failed to locate any of the items kept in the box including, in particular, the irrevocable order.
[17] T76.3-4.
[18] T75.2-5.
The following day the plaintiff instructed solicitors to act for him in relation to the deceased’s estate. He gave evidence that he told his solicitors of the existence of the irrevocable order.
The plaintiff’s solicitors wrote to the Public Trustee on 21 February 2011. Relevantly, the letter stated:
Kindly note that we act for Michael Elton in relation to the above estate. Our client is presently obtaining advice with a view to establishing an entitlement in the estate.
We expect to be in a position to set out our client’s position more clearly in the near future. In the meantime, we should be grateful if you would take no steps to dispose of any estate property.
On 14 April 2011 the plaintiff’s solicitors again wrote to the Public Trustee. Relevantly, the letter stated:
Although our client is not a blood relation of the deceased, we are instructed that our client may have a claim in relation to the estate on the basis that he qualifies as a domestic partner of the deceased.
We appreciate that the facts are somewhat unusual in that our client would ordinarily be classified as a friend of the deceased – although they referred to each other in public and private as grandfather and grandson. The case of Taddeo v Taddeo [2010] SADC 61 is an example of where a finding of domestic partner was found in relation to a mother and daughter.
When the writer spoke with someone from your office recently, it was indicated that you were in the process of ascertaining the next of kin of the deceased as the estate will be administered on the basis of an intestacy. Our client was very close to the deceased and is unaware of any family who might be entitled on intestacy. In any event, if you are able to locate such a person, we should be grateful if you would advise us of same, as it may be appropriate for our client to address his claim to that person or persons.
If there is in fact a will of the deceased, we should be grateful if you would provide us with a copy of the same.
The plaintiff’s solicitors again wrote to the Public Trustee on 19 August 2011. Relevantly, that letter stated:
Our client shared a close relationship with the deceased and intends on pursuing a claim against the estate under the Inheritance (Family Provisions) Act 1972 (SA). We will include with the claim an application for a declaration that under the Family Relationships Act 1975 (SA), our client was a domestic partner of the deceased.
...
We are instructed that our client and the deceased lived together at the property for approximately 3 years and that the deceased has always referred to our client as his grandson. The deceased and our client shared a unique companionship of mutual support and dependence. Based on the nature of the relationship shared between our client and the deceased, we are of the opinion the Court would grant a declaration that our client and the deceased were domestic partners.
Please note that our client has some of his possessions at the deceased’s property. Please do not dispose of items at the property without reference to us.
On 10 October 2011 the plaintiff’s solicitors again wrote to the Public Trustee setting out the basis upon which the plaintiff asserted he was entitled to a declaration as a domestic partner of the deceased under the Family Relationships Act 1975 (SA). In that letter the plaintiff’s solicitors stated:
We are instructed that the deceased was under significant influence by his brother, Bruce, and in February 1991 the deceased signed a will stating his nephew, Mostyn (Bruce’s son), as the main beneficiary of his estate. However, after his heart attack in 1996 the deceased wrote a document, potentially a codicil, to include our client as a beneficiary. We have not been able to locate this document. We are instructed that the document was hidden under a box of newspaper cuttings along with the deceased’s bank books and other like documents in the property.
This letter was written after a conference between the plaintiff and his solicitors, Melissa Yule and Christina Flourentzou, and the late Mr Haines QC. Notes of that conference were admitted at trial. The plaintiff gave evidence concerning the conference. Neither Ms Yule nor Ms Flourentzou gave evidence. Relevantly, the notes record:
Letter signed by Don [the deceased], me and Mostyn – an agreement about the estate.
The notes record that this document was gone along with coins, a stamp collection and war medals. The notes continued:[19]
Don kept saying you will bequested.
Agreement – that when Bruce dies – Michael and Mostyn share estate equally. Don spoke to my dad about it.
IRREVOCABLE UNDERTAKING
When Donald had heart attack he wanted to make sure I was looked after. Make sure Georgio gets train set. Teresa to get china in cabinet. In Don’s handwriting – blue ball point pen. Dad probably would have read it.
“At this time I can’t make a new will (because of Bruce).
My fiancé knew about the irrevocable authority – not sure if she ever saw it.
[19] Exhibit D8. I have interpreted certain abbreviations in the notes such as “agmt abt” as “agreement about”.
The plaintiff was cross-examined extensively about this conference. His evidence was:
AI can only recall meeting Mr Haines at that small premise that looked like a house on one occasion.
QAnd you can't recall meeting him anywhere else.
ANo.
QDo you recall saying in the course of that meeting that Don kept saying to you that you would be bequested.
AI don't recall that word at all.
QIs that something Don did keep saying to you, that you would be bequested.
AI don't even know that word, to be honest.
QNow, do you remember saying in the course of that meeting in October 2011 that there was an agreement that when Bruce dies, Michael and Mostyn will share the estate equally.
ANo.
QRemember saying anything in the October 2011 conference about you and Mostyn sharing the estate equally.
ANo.
QDo you recall saying anything about an agreement about what would happen when Bruce dies.
ANo.[20]
[20] T109.3-23.
...
QDo you recall saying anything in the course of that October 2011 meeting about Don speaking with your dad about the agreement.
AYes.
QWhat did you say at the meeting about Don speaking to your father, to your dad, about an agreement.
AMr Haines - can I explain it in my words?
QYes.
AIs that okay? Mr Haines was asking me a whole series of questions about my background and relationship and how everything came about and it was in the course of me explaining these - my relationship with my grandfather that - and I am explaining to him about how my grandfather had prepared this document, and he started asking me to describe it in detail, and when he started asking me these questions, I was just answering his questions, and I said that after my grandfather had his heart attack in 1996, he was staying with my dad and my grandma at my dad's home, like, our family home so he could recover, and at some point, and this is my recollection of what I was saying to Mr Haines, is that at the end of '96, my grandfather asked Mostyn and I together with my grandfather in the front bedroom - front living room and to discuss this document that he had prepared with the assistance of my dad, and I just explained that to Mr Haines, so he started asking me for more detail and I just answered his questions.
QWhat did you tell him was the name of the document.
AWell, when Mr Haines was asking me the questions, I actually couldn't remember what the heading of the document was exactly. I said that I knew that it was something to do with how my dad wrote up legal agreements with his car business and it sounded like 'irrevocable' - like 'irrevocable undertaking' or 'irrevocable order', that's how - it just came up in conversation as I was remembering it to Mr Haines, and he was asking me questions, like, he was saying 'How was it written? What was it written on?' etc., etc., and that's - I just explained the best I could.
QAt that stage, your best recollection was that it said 'irrevocable undertaking', wasn't it.
AI think so, yes.
QIt’s only subsequently that you have suggested that it was entirely [sic] irrevocable order, isn't it.
AIt was in that conversation that I was trying to remember very precisely for Mr Haines how it was written and, you know, if I got the word wrong at the time, I don't know. So the word 'irrevocable', I could have said 'irrevocable undertaking' or 'irrevocable order'. I was trying to remember how it was referred to at that time, so -
QHow did you settle on a recollection of irrevocable order rather than irrevocable undertaking.
AI was asked to try and reconstruct the document to the best of my ability and then email it to Melissa.
QYou used the words 'irrevocable order' in that reconstruction.
AYes, I did.
QWas that after discussing the matter with your dad.
ANo, I didn't discuss it with my dad.
QWhat led to the change between irrevocable undertaking and irrevocable order.
AI put a lot of effort into trying to make sure that what I was explaining to Mr Haines and Melissa was to the best of my abilities correct, and I think I said before, I can't say 100%, I don't think anyone could say that you can reproduce something from memory word for word. Who can do that? I can't and I'm sorry if that offends you, but I can't be 100% accurate on every single word. I just - I can't do that, I'm sorry.
QAs to the content of the document, not the heading of it, when you were discussing it with Mr Haines, was the best that you could recall that it set out that you and Mostyn were to share the estate equally.
ANo, no, that's not the case.
QDo you recall saying to Mr Haines that Donald said that he wanted to make sure George got the train set.
AThat was never in the agreement or irrevocable order; I never said to Mr Haines that that was specifically in the irrevocable order.
QMy question was, do you recall saying to Mr Haines that Donald had said he wanted to make sure that George gets the train set.
AGeorge ... yes, that was my grandfather's wishes.[21]
[21] T109.29-112.19.
...
QWas that a matter that the deceased had said to you at the same time you had the conversation you have relayed this morning in 1996 when Mostyn was present, when he spoke to you about the irrevocable order, or was that some other conversation in which the deceased told you that George was to get the train set.
AWe didn't discuss George in 1996.
QWhen was that discussed.
AMuch later.
QWhen later.
ASome time later after 2004 onwards, somewhere after that. Please don't hold me to it, but I remember discussing it with my grandfather at my grandmother's 80th birthday party because we had this big special event at my home where my dad and my grandmother lived. We had this big 80th birthday party and my grandfather was there. I specifically remember talking about that at that point because my grandfather brought it up.
QSome of what you told Mr Haines related to the document you'd seen back in 1996; some of it related to things you'd been told later.
ANo, I told Mr Haines what the best I could, how I recalled the document and the content of it.
QDo you accept that you may have told him that George was to get the train set.
AI accept that I would have told Mr Haines that Georgio was to get the train set; I didn't say that it was in the document.
QSo you accept that you told Mr Haines not only things that you knew because of what you saw in 1996, but also things that you knew because of what you had later been told by Donald.
AI couldn't follow that, I am sorry? I don't mean to be rude, I couldn't follow.
QDo you accept that what you told Mr Haines was a combination of things that you were told and read back in 1996, and also things that the deceased had said to you subsequently about who was to get what.
AThere was no detailed conversation with my grandfather about who was to get every single item in the house. When I was talking to Mr Haines, the things that were very important to my grandfather I related to him in terms of if - I didn't want to the train set, I needed to give it to Georgio. Any belongings that Mostyn and I didn't want, if they were of some significance like the - excuse me if I am waffling. Things like the stuff that my grandfather collected about the Port Adelaide Football Club, so if I could use that as an example. If Mostyn or I didn't want that, then I would be supposed to be able to give it to the Port Adelaide Football Club because it was very extensive and it went back to the very early 1900s. He put so much time and effort and pride into all of this stuff that it wasn't to be destroyed. It was quite significant and the Port Adelaide Football Club probably would never have even had some of this stuff, and my grandfather was very well known to John Cahill who used to be the coach of Port Adelaide. He even asked my grandfather to go and spy on some games for coaching; that is like one example. Another example is all of the stuff in terms of the railway stuff, so if I didn't want it, there were so many things about railway books and the history of the Islington Railway Station and my grandfather just absolutely was besotted by steam engines and steam trains. He wanted me to pass all that on to the Railway Society because it was quite historic and quite significant, a lot of that stuff. I would have explained that to Mr Haines.
QDid you tell Mr Haines that Teresa was to get the china in the cabinet.
AI don't recall saying that.
QWas that your understanding in October 2011.
AI always knew that my grandfather said that he wanted Teresa to have his dinner set. I can't recall bringing that up with Mr Haines.
QHow did you know that.
ABecause I heard them both talk about it on visits, and it was just something that had been brought up at some point in time.
QWas that something that Donald had said in your presence about wanting to give her the china set.
AYeah, also he had this quite unique sewing basket which actually belonged to his mum. It was a wooden sewing basket and it was about this high (INDICATES). You opened it up like that and it had this wooden handle; it was all made out of - I can't say exactly pine – but it was similar to that surface of that counter. That was something that he wanted to give Teresa as well.
QIs that something that was referred to in the conversation or document you saw in 1996.
ASorry?
QWas the china mentioned in the irrevocable order or -
ANo.
Q- an undertaking.
ANo.
QAnd so far as you're aware that wasn't documented anywhere, the intention that she would get the china.
AIt wasn't in the document.
QDo you remember telling Mr Haines that your dad had probably read the document that you were then describing as an irrevocable undertaking.
AI don't recall discussing my dad's input in this at all, because I was told I wasn't allowed to speak to my dad. I was explaining this whole history to Mr Haines and then I was told to stay put, I did.
QBut do you remember telling Mr Haines that your dad probably would have read it.
AI can't recall.
QDo you recall telling Mr Haines that Donald had said to you or had said words to the effect that 'At this time I can't make a new will'.
ASorry, can you repeat that one.
QDo you recall saying to Mr Haines something to the effect that Donald had said or written 'At this time I can't make a new will'.
AThose specific words 'At this time'?
QYes, presumably a reference back to 1996 or some earlier point in time. Do you remember telling Mr Haines that.
AI know that I told Mr Haines why my grandfather wrote what he wrote.
QWhy he wrote that he wasn't able to make a new will.
AI didn't say that.
QDid you say to Mr Haines that that was because of Bruce.
AYes.[22]
...
QDid you tell Mr Haines that your fiancée knew about the irrevocable authority.
AFrom the best of my recollection he may have asked me that, but I said I don't know if Teresa and my grandfather had discussed it.
QDid you tell Mr Haines that your fiancée did know about the irrevocable authority.
AI don't recall ever saying anything about that because I could see why - I don't know, I just don't know, I don't remember saying that, I don't even - because I wasn't sure and I don't know.[23]
[22] T112.26-115.38.
[23] T116.19-29.
After the conference with Mr Haines, the plaintiff reconstructed the irrevocable order from his memory. The first version was produced in late 2011. It was in the following terms.[24]
[24] Exhibit D6.
IRREVOCABLE ORDER
I, Donald Kerry Walker of 44 Victoria Street, Prospect S.A. 5082 am writing this Irrevocable Order to extinguish all previous Will and Testament’s regarding my Estate and Affairs.
The purpose of this document is written because I am unable to formally change my last Will of 1991 due to the disagreement I have had with my brother Bruce Walker. It is written with the consent of Mr Boris Bacic of 10 Gertrude Street, Taperoo, S.A. 5017.
In the event of my death, it is my express wishes that all of my Estate and Affairs are left to my grandson, Mr Michael Elton of 1/7 Gabriel Place, Florey, A.C.T. 2615.
My house located at 44 Victoria Street, Prospect S.A. 5082 is left to my grandson Michael Elton.
My nephew Mostyn Walker is entitled to half the value of my house (44 Victoria Street, Prospect, S.A. 5082) at the time of my death.
My grandson Michael Elton must pay my nephew Mostyn Walker half the agreed value of my house within a reasonable time after my death.
My motor vehicle, a 1980 Gemini is to be left to Michael Elton.
My household belongings can be shared between my grandson Michael and my nephew Mostyn.
This Irrevocable Order document is my last Will and Testament and is written by me, the said Donald Kerry Walker of 44 Victoria Street, Prospect S.A. 5082 on this day ? November? 1996.
SIGNED DK Walker ??/??/1996
SIGNED Mostyn Walker ??/??/1996SIGNED Michael Elton ??/??/1996
It is notable that this document differs from Exhibit ME4. The second sentence in the second paragraph, the reference to “November?” in the final paragraph and the signatures of Mostyn and the plaintiff were omitted when the plaintiff subsequently constructed the document which is Exhibit ME4.
On 22 December 2011 the plaintiff swore an affidavit for the purposes of instituting these proceedings. In his affidavit the plaintiff refers to the meeting he had with the deceased and Mostyn at the deceased’s home in December 1996. In his affidavit he deposes to the deceased showing Mostyn and him “a document that was titled Irrevocable Order.” It goes on to refer to “the document” and says “both Mostyn and I read the document and the deceased asked us whether we wanted to keep a copy. I do not know whether Mostyn took a copy. My copy, which was the original, was kept with the deceased’s other important documents along with my other bank books and coin collection etc.”
Legal principles
Against this background I turn to consider the issues that fall for decision in this matter. It is clear that in certain circumstances a Court will recognise a lost will and admit it to probate. It is common ground between the parties that if the Court is satisfied that the Irrevocable Order is admitted to probate the Court should revoke the grant made in favour of the 1991 will. The relevant principles concerning granting probate of a lost will, modified to reflect the changes to the law effected by the equivalent of s 12 of the Wills Act 1936 (SA), were enunciated in Cahill v Rhodes by Campbell J as follows:[25]
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.
[25] [2002] NSWSC 561 at [55].
While the burden of proof remains the usual civil standard of balance of probabilities, the authorities emphasise the need for clear and convincing evidence of the existence of a lost will.
In The Estate of Ralston[26] Hodgson J said:
... 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, or where the Court is asked to make a finding concerning a legal transaction by a deceased person.
However, this does not mean that what is required is other than proof on a balance of probabilities. 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...
(Citations omitted)
[26] Unreported, Supreme Court of New South Wales, 12 September 1996.
Hodgson J cited as authority for this proposition the High Court’s judgment in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd[27] which is an application of the Briginshaw test.[28] In applying the balance of probabilities standard in considering applications to admit a lost will to probate the Court must be vigilant, being fully cognisant of the dangers of error and fraud and the gravity of the consequences flowing from any finding made.[29] In my view, these considerations apply with particular force where the evidence the Court is asked to act upon is purely oral.
[27] (1992) 67 ALJR 170 at 170-171.
[28] Briginshaw v Briginshaw [1938] HCA 34, (1938) 60 CLR 336.
[29] Orifici v Orifici & Ors [2007] WASC 74 per Hasluck J at [59]; Dalton v Dalton unreported, Supreme Court of Western Australia, Parker J, 24 September 1997; see also Dolan v Dolan & Anor [2007] WASC 249 at [15]-[17] applying the Briginshaw test.
I do not regard anything said subsequently in Gruzdeff v Lough[30] by Hodgson J as detracting from this proposition. While parol evidence may be adduced to prove the contents of a lost will[31] the Court must take particular care in considering whether such evidence leaves it reasonably satisfied “not just as to the existence of the will but as to its contents”.
[30] Unreported, Supreme Court of New South Wales, Hodgson J, 22 August 1997.
[31] Whiteley v Clune (No 2) the Estate of Brett Whiteley unreported, Supreme Court of New South Wales, Powell J, 13 May 1993.
If the Court is satisfied that the document sought to be propounded as the lost will of the deceased existed, the next issue the Court must consider is whether the document itself, or so much of the document as may be proved,[32] was intended by the deceased to constitute his will. The Court must be satisfied that the document sought to be admitted to probate, or at least so much of the contents of the document as the Court is satisfied has been proved, purports to embody the deceased’s testamentary intentions. That means the deceased intended the document, without more on his part, to take effect as a testamentary disposition of his property upon his death. This is to be decided by reference to the document itself, the circumstances regarding its contents (including such marks or handwriting as may appear on it) and any other relevant circumstances. While each case must depend upon its own facts, the greater the departure from compliance with the formal requirements for the making of a will, the more difficult will it be for the Court to be satisfied that the deceased intended the reconstructed document to be his will.[33]
[32] Whiteley v Clune (No 2) the Estate of Brett Whiteley unreported, Supreme Court of New South Wales, Powell J, 13 May 1993; Payten v Perpetual Trustee Company [2005] NSWSC 345 at [110] – [111] although see the qualification of this proposition in Gruzdeff v Lough (unreported judgment, Supreme Court of New South Wales, Hodgson J, 22 August 1997).
[33] Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 at 539 – 540.
Next the Court must be satisfied of two related matters: the terms of the testamentary instrument and whether the terms included a provision revoking all previous wills.
If the Court is satisfied of these matters it must then turn to consider the presumption of revocation. This involves two issues: does the presumption arise and, if so, is it rebutted. The presumption was described in Welch v Phillips in the following terms:[34]
... If a will, traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and that presumption must have effect, unless there is sufficient evidence to repel it. ...
[34] Welch v Phillips [1836] 12 ER 828 at 829 cited by Griffiths CJ and O’Conner J in the High Court in McCauley v McCauley [1910] HCA 16, (1910) 10 CLR 434 at 438 and 446.
In The Estate of Gibbs Gray J made the following observations regarding the rebuttal of the presumption.[35]
The presumption of revocation is a presumption of fact which may be rebutted by appropriate evidence.[36] It is the applicant who carries the onus of rebutting the presumption.[37] Further, when determining if the presumption has been rebutted, the court is “to consider the whole of the facts together, and draw what inference should be drawn from the totality of the evidence”.[38]
[35] In the Estate of Gibbs [2012] SASC 230 at [31], (2012) 115 SASR 182 at 190.
[36] Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993); see also, Colvin v Fraser (1829) 2 Hag Ecc 266; Welch v Phillips (1836) 1 Moo PC 299; In the Estate of Gerard Deceased (2007) 251 LSJS 176, [32].
[37] Welch v Phillips (1836) 1 Moo PC 299, 302; In the Estate of Gerard Deceased (2007) 251 LSJS 176, [34]; see eg, Allan v Morrison [1900] AC 604.
[38] Gordon v Beere [1962] NZLR 257, 266.
Consideration
In my view, the plaintiff has not discharged the onus he bears.
On the evidence I am satisfied that sometime in 1996 the deceased prepared a document which described in some way his wish that the plaintiff should enjoy some benefit from the disposition of his estate. The existence of the document is established by the evidence of Mr Bacic, Ms Dabrowski and the plaintiff. I am satisfied that there was a conversation between Mr Bacic and the deceased in mid-1996 when the deceased was recuperating at the Mr Bacic’s home following a heart attack. I am not satisfied as to what the deceased said to Mr Bacic other than that he wished that the plaintiff would benefit from his estate. I am satisfied that Mr Bacic advised the deceased that in order to fulfil his wish some formal document was required which had to be witnessed. I am satisfied that the deceased prepared a document or documents which evidenced a wish that the plaintiff should benefit in some way from his estate. I am not satisfied however that he ever prepared a document which was intended by him to have testamentary effect. There is no evidence he ever acted on the advice of Mr Bacic that the document should be witnessed if it was to have legal effect. I am satisfied there was a discussion in late 1996 between the deceased, the plaintiff and Mostyn in which the deceased produced a documents or documents which he showed the plaintiff and Mostyn. I am not satisfied that whatever document or documents were produced by the deceased to the plaintiff and Mostyn in late 1996 were intended to effect the testamentary disposition of the deceased’s estate.
I am satisfied that some years later the deceased had a conversation with Ms Dabrowski in which he referred to his wish that the plaintiff should benefit from his estate. I am further satisfied that in this conversation the deceased made some reference to the property at Victoria Street being shared in some way between the plaintiff and Mostyn. I am further satisfied that the deceased referred to a document embodying this wish during the course of the conversation.
I am not satisfied, however, that the document the deceased drafted in 1996 revoked the 1991 will or was intended by him to replace the 1991 will as an expression of his testamentary intentions or was in the terms of the reconstructed document, Exhibit ME4. Moreover, I am not satisfied as to the contents of the document generally.
The evidence relating to the terms of the document is inconsistent and ultimately unreliable.
First, the plaintiff’s evidence is that in 1996 the deceased prepared two documents which he gave to each of Mostyn and him. He reconstructed the terms of that document from memory 15 years later. He did so on the basis of having seen the document for no more than 10 minutes. In the version of the document the plaintiff says he read, he recalls the deceased leaving the Victoria Street property to him on the condition that he pay Mostyn half the agreed value of the house. The plaintiff prepared two versions of the document in 2011. There are obvious differences between the two versions. Those differences include, inter alia, whether the document was signed by the plaintiff and Mostyn and whether there was any reference in the document to the role of Mr Bacic in its preparation.
Second, the plaintiff’s evidence of the conversation between the deceased, Mostyn and him contradicts the affidavits he swore on 22 December 2011 and 8 August 2014. The affidavits referred to the deceased showing Mostyn and the plaintiff a single document. In the affidavits the plaintiff deposes to the deceased asking Mostyn and him whether we wanted to keep a copy of the document. He deposes that he did not know whether Mostyn took a copy.
Third, there are material differences between the plaintiff’s evidence and the instructions he gave his legal advisers in October 2011. The plaintiff referred to a “letter” signed by the deceased, Mostyn and him which reflected an agreement about the estate. He described the basis of the agreement as being that the estate would be shared equally between Mostyn and him. He referred to the document as an irrevocable undertaking.
I have set out earlier the extensive cross-examination of the plaintiff in relation to this conference. The plaintiff denied giving instructions in the terms that were recorded in the notes made by his solicitor. I do not accept his evidence on this topic. He did not call his solicitors to give evidence. I infer their evidence would not have supported his case.[39]
[39] Jones v Dunkel [1959] HCA 8, (1959) 101 CLR 298.
Fourth, I find that the plaintiff did not instruct his solicitors concerning the existence of the irrevocable order document before October 2011. I am satisfied this is the case by reference to the letters from his solicitors to the Public Trustee set out above. Had the plaintiff been clear in his recollection of the terms of Exhibit ME4 when he first instructed solicitors in February 2011, I am satisfied he would have mentioned the document in terms to his solicitor. The fact he failed to do so casts further doubt on the reliability of his recollection as to the contents of the document.
While I am satisfied that the deceased brought a document, and perhaps two documents, into existence in 1996, the only witness who gave evidence of reading the document was the plaintiff. I am not prepared to rely upon his evidence for the purposes of making findings as to the contents of the document.
This finding is not a reflection upon the credibility but rather the reliability of the plaintiff’s evidence. I consider that he was doing his best to honestly recite the various events traversed in his evidence. The fact remains, however, that the content of the document is critical to deciding this application. The contradictions and inconsistencies in the plaintiff’s evidence mean that his evidence is not a reliable foundation for making the findings required for the success of the application. While the evidence of the plaintiff’s father and his former fiancée lend support to the finding that a document was brought into existence at that time, their evidence as to its terms is not consistent either with the plaintiff’s evidence or with each other. Mr Bacic gave evidence that in about June 1996 the deceased told him that he wished to leave his house to the plaintiff and Mostyn. Ms Dabrowski gave evidence that the deceased told her that the plaintiff and Mostyn would have his property and that he trusted Michael to pay Mostyn out. Further, neither of them actually read the document. What evidence they could give as to the contents of the document necessarily is hearsay. I consider I can give it little weight. In addition, there are aspects of the evidence of Mr Bacic which must throw doubt on the reliability of his recollection. He gave evidence that in June 1996 the deceased told him that Bruce was trying to force him to change his will. The deceased told him he did not want to do this. This evidence makes no sense. By 1996 the deceased had made a will making Mostyn his sole beneficiary. It is most unlikely that Bruce wanted the deceased to change this will or that he would have taken steps to try and persuade the deceased to do so.
Fifth, I have real doubts as to whether the document brought into existence by the deceased in 1996 was intended by him to effect a testamentary disposition of his estate. The deceased had made a will five years earlier. I am prepared to find that he had an appreciation that the making of a will was attended by certain formalities. The requirement for certain formalities would have been reinforced by the advice proffered to him in June 1996 by Mr Bacic that the document he was suggesting had to be witnessed by a justice of the peace. Yet on the evidence of the plaintiff the document had not been witnessed. I accept that if the deceased wished to make a new will in terms that differed from the 1991 will, he could have done so. Whatever might have been Bruce’s viewpoint, there is no evidence that the deceased was so under his influence that he was incapable of instructing solicitors or the Public Trustee to make a new will.
I accept the submission of Mr Doyle that the natural inference is the deceased regarded the 1996 document as being something distinct from a will. I consider it was a document he prepared which set out his wishes as to what he might do or hoped would happen to his estate upon his death, rather than something he intended to take effect as a will. This is consistent with the statements the deceased made to Mr Pattenden in about 2007 and 2008 in which he asserted Mostyn was his sole heir.
I am further reinforced in this conclusion by a curious feature in the plaintiff’s evidence concerning his attendance at the Victoria Street property in mid-1996 when the deceased was in hospital. He gave evidence of seeing the 1991 will together with a typewritten document stating “My last will and testament leaves everything to Michael Elton”. The plaintiff did not see this document again. The plaintiff’s description of this typewritten document suggests a draft will. The fact that this document was not produced by the deceased some months later when he spoke with the plaintiff and Mostyn suggests that the handwritten document he produced at that time was not intended by him to be his will or to express his testamentary intentions. On the plaintiff’s evidence, the deceased had a copy of the 1991 will in his possession in 1996. If he was preparing a document to effect a testamentary disposition, he could have adopted the format of his 1991 will. The failure to do so contraindicates the requisite testamentary intention in drafting the handwritten document.
It follows that because I find myself unable to rely upon the plaintiff’s evidence as to the precise terms of the document, I am not satisfied that the document revoked or “extinguished” the 1991 will.
Accordingly, I am relieved of the necessity of having to decide whether the presumption of revocation arises and, if so, whether it has been rebutted.
I should observe, however, that for the presumption to arise, it is necessary that the testator was last seen in possession of the will. Mr Ower submits that the presumption does not arise in this case because the irrevocable order cannot be traced to the deceased. The deceased left the Victoria Street property in about August 2008 and did not return. He submits that the plaintiff’s evidence establishes that the irrevocable order was seen in its keeping place in the box in the storeroom shortly before the deceased was admitted to the nursing home. I accept the plaintiff’s evidence in this regard. However, I do not consider that prevents the presumption from arising. The fact remains that the irrevocable order was last seen in the place the deceased kept it in his home. I am satisfied that it was in his custody at that time. On the other hand, I would find that the presumption has been rebutted. I consider it unlikely that the deceased would have destroyed the document in the short period between it last being seen by the plaintiff and the deceased’s admission to the nursing home. I am satisfied that thereafter the deceased did not have the opportunity to destroy the document. Had it been necessary to do so, I would have found the presumption rebutted.
For these reasons I am further relieved from the necessity to consider the plaintiff’s submission that the existence of the presumption of revocation should be reconsidered. In case this matter goes further I would indicate that this is a submission I would not have accepted. If the presumption is to be discarded as no longer relevant or appropriate, that is a development in the law which should not be undertaken by the decision of a single judge.
Conclusion
For these reasons I dismiss the plaintiff’s claim. I will hear the parties as to costs.
3
18
1