Ex Parte Michael John Roberts
[2020] WASC 26
•4 FEBRUARY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: IN THE ESTATE OF MURRAY STUART ROBERTS (DECEASED); EX PARTE MICHAEL JOHN ROBERTS [2020] WASC 26
CORAM: REGISTRAR C BOYLE
HEARD: ON THE PAPERS
DELIVERED : 4 FEBRUARY 2020
FILE NO/S: PRO 1753 of 2019
MATTER: IN THE ESTATE OF MURRAY STUART ROBERTS (DECEASED); EX PARTE MICHAEL JOHN ROBERTS
EX PARTE
MICHAEL JOHN ROBERTS
Applicant
Catchwords:
Probate – Application to prove copy will – Whether original last known to be in possession of will maker – Presumption of revocation by destruction
Legislation:
Wills Act 1970 (WA), s 8
Result:
Application refused
Category: B
Representation:
Counsel:
| Applicant | : | No appearance |
Solicitors:
| Applicant | : | Mossensons |
Case(s) referred to in decision(s):
McCauley v McCauley [1910] HCA 16; 10 CLR 434
Powell v Dinwoodie [2012] WASC 139
Proud v Proud [2012] WASC 134
Sawyer v McKenzie [2011] WASC 215
Welch v Phillips 1 Moo PCPC 299
West Australian Trustee Executor & Agency Co Ltd v Homes (1961) WAR 144
Worth v Clasholm (1952) 86 CLR 439
REGISTRAR C BOYLE:
Murray Stuart Roberts made a will on 3 October 2008. After he died on 21 December 2018 the original could not be found. A copy has been found. The institute executor seeks to prove that copy. The question is whether probate should be granted of that copy. There is no suggestion that the deceased made a later will, or that he executed a testamentary instrument revoking that of October 2008.
Because it became apparent that the application would take some time to deal with (and required more evidence) and there was some urgency in the administration, a limited grant has been made to the applicant ad colligenda bona defunctii to empower him to preserve assets and complete the sale of real property.
The law on proof of copy wills
The principles are settled and uncontroversial. The ultimate source to which many more recent authorities refer is the rule expressed by Lord Wensleydale in Welch v Phillips[1]:
The rule of the law of evidence on this subject, as established by a course of decisions in the Ecclesiastical Court, is this: that 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. It is a presumption founded on good sense; for it is highly reasonable to suppose that an instrument of so much importance would be carefully preserved, by a person of ordinary caution, in some place of safety, and would not be either lost or stolen; and if, on the death of the maker, it is not found in his usual repositories, or else where he resides, it is in a high degree probable, that the deceased himself has purposely destroyed it. But this presumption, like all others of fact, may be rebutted by others which raise a higher degree of probability to the contrary. The onus of proof of such circumstances is undoubtedly on the party propounding the will.
[1] Welch v Phillips 1 Moo PCPC 299 [302].
That statement was cited with approval by the High Court in McCauley v McCauley[2].
[2] McCauley v McCauley [1910] HCA 16; 10 CLR 434.
There is a line of decisions of this Court in recent years illustrating the application of those principles. They include those of EM Heenan J in Proud v Proud[3] and Powell v Dinwoodie[4]. And in Sawyer v McKenzie[5] his Honour observed [36] ‑ [37]:
It has been said that where the will makes a careful and complete disposition of the testator's property and there are no other circumstances to point to a probable destruction animo revocandi by the testator, the presumption is so slight that it may be said not to exist: Sugden v Lord St Leonards (1876) LR 1 PD 154 and Finch v Finch (1867) LR 1 P & D 371 cited by Powell J in Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, SCNSW, 13 May 1993) [26] ‑ [27]. Nevertheless, the presumption exists and if there are circumstances implying that it is improbable that the will would have been destroyed by the testator animo revocandi, then it will be rebutted but, if not, it will be given such weight as the particular facts and circumstances suggest.
The presumption may be rebutted by evidence that the will simply went missing or was lost, as opposed to having been destroyed with the necessary intention: Re Hampshire [1951] WN 174. The presumption may also be rebutted by evidence that the testator lacked the necessary capacity to revoke the will by destroying it.
[3] Proud v Proud [2012] WASC 134.
[4] Powell v Dinwoodie [2012] WASC 139.
[5] Sawyer v McKenzie [2011] WASC 215.
Consistently with the authorities but also with reference to the particular circumstances of this case, the following questions have to be addressed:
(1)Did the deceased make a valid will in 2008? There must be proof of testamentary capacity, of the deceased's knowledge and approval, and of due execution.
(2)Is the copy that the applicant seeks to prove a true copy of the 2008 will?
(3)Has there been proper search for the original?
(4)Was the original will last known to be in the possession of the deceased?
(5)If the will was last known to be in the possession of the deceased, has the presumption of revocation by destruction been rebutted?
The 2008 will
The document propounded is a photocopy of what appears to be a will of the deceased prepared in the firm of Anthony Torre & Monaco, then solicitors practising in Fremantle. It has a cover sheet bearing the year, a statement that it is the last will and testament of this deceased, and a logo and particulars of the firm. There are four substantive pages. There is provision on each of the first three pages for signature by each of the will maker and two witnesses. There are signatures in those spaces. On the fourth page there is an execution and attestation clause in usual form. There is a signature in the space provided for the will maker, and signatures and stamps showing particulars of each of the two witnesses Gino Monaco and Shelley Acham. There is a date of 3 October inserted in the appropriate place.
In short, the document appears to be a copy of a will drawn by and under the supervision of lawyers as part of their daily practice, and executed by the will maker in their presence.
There is evidence that the signature appearing as that of the will maker on the document is that of the deceased. Each of the witnesses has deposed to being a signatory as witness. Unsurprisingly, neither has a specific recollection of execution, but they rely on their acknowledged signatures and their practices to depose to the fact that they witnessed the deceased execute the original of this document as his will in their presence on that date.
Ms Kerry Johnstone was the long‑term de facto wife of the deceased until July 2012. By her affidavit sworn 22 March 2019 she deposes to conversations with the deceased 'in or about the middle of September 2008' about his making a will. That corroborates that at the relevant time the deceased expressed an intent to have a will prepared.
Ms Shelley Acham was the solicitor who took instructions from the deceased and drew the will and also witnessed it. Mr Gino Monaco was the principal of the firm and was the other witness. There is no reason not to conclude that the deceased gave instructions for a will that was prepared and in due course executed on 3 October 2008.
Given that the will was a professionally drawn document, rational on its terms, and appearing to have been executed in conformity with the requirements of the Wills Act the applicant is entitled to rely on the presumptions that the deceased had testamentary capacity, that he knew and approved of the contents of the will, and that it was duly executed in accordance with the formal requirements of s 8 of the Wills Act: Worth v Clasholm[6].
[6] Worth v Clasholm (1952) 86 CLR 439 [452] ‑ [453]; and see West Australian Trustee Executor & Agency Co Ltd v Homes (1961) WAR 144 [146].
I find that the deceased made a valid will on 3 October 2008.
Is the copy authentic?
To express it more fully, a copy will to be admitted to probate must be the most authentic copy available. The evidence here is clear.
First, each of Mr Monaco and Ms Acham deposes to his or her respective involvement in the process of instructions for, preparation and execution of the will. They depose to recognising the copy signatures on the document as copies of their signatures.
Ms Johnstone, in addition to her discussions with the deceased about making a will, deposes to seeing the document that is now sought to be admitted shortly after the will was executed. She gives evidence that this copy was shown to her by the deceased and remained for some time on a coffee table in the deceased's house. In the time it was there, it came to be stained with coffee. Those stains remain.
One point that none of the deponents has mentioned but which I find supports the authenticity of the document is this. The document is a black and white photocopy. However, it has on its front page the stamped word 'COPY'. That is in blue ink, suggesting to me that it was placed on the copy immediately after photocopying of the original, almost certainly in the offices of the solicitors who had prepared the will. Ms Johnstone refers to this copy stamp, without mentioning its colour.
There is no reason not to accept any of that evidence. I find that the copy the subject of this application is the copy of the deceased's will that he first showed to Ms Johnstone shortly after it was executed, and that it is an authentic photocopy of the executed document. There is no evidence that there might be a better copy anywhere.
Has there been proper search?
The applicant is the deceased's brother. In his affidavits of 26 March 2019 and 27 June 2019 he gives evidence of both the state of the farm house where the deceased lived and his searches for the original will after the death of the deceased. The original of the will could not be found in his house after the deceased died. The applicant made appropriate enquiries with the deceased's bank and accountant and neither could provide any information as to the whereabouts of the original will. The bank responded that it did not hold the original will and did not have a safe custody box or package for the deceased, nor was it holding any documents other than the duplicate certificate of title for the deceased's farm. The deceased's accountant advised the executor that his firm was not holding the original will or any other documents for the deceased. An enquiry of the Public Trustee produced no will of the deceased.
There is evidence from each of Mr Monaco and Ms Acham, and from a solicitor employed in the practice that now holds the files and safe custody documents held by the former practice of Anthony Torre & Monaco, of searches in the records of those firms. None of those searches turned up the original will.
There is no evidence that there has been any advertising for the will in either the public notices section of a newspaper or in the Law Society's publication Brief. My experience in a total of nearly 40 years' experience successively as a practitioner and probate registrar is that such advertisements very rarely produce a positive result. I find that in all the circumstances appropriate search has been made.
Was the original will last known to be in the possession of the deceased?
This is the crucial question. If the will was not in the possession of the deceased, he cannot have revoked it by destroying it. If the deceased did not have the will, then its loss must be attributable to chance or to the actions of others.
On the other hand, if the deceased did have the will, then the failure to find it after his death gives rise to a presumption of law that he revoked it by destruction during his lifetime.
It is best to begin when the will was executed on 3 October 2008 in the presence of Mr Monaco and Ms Acham.
It is not surprising that neither of the witnesses has a positive recollection of an event which happened more than a decade ago and would have been an unexceptional part of their daily professional routine at the time. The most that both can do is give evidence of what the practice of the firm of Anthony Torre & Monaco was when clients made wills.
That practice was that the firm generally did not keep the originals of wills. When a client gave instructions for the firm to keep a will, and those instructions were accepted, there was a procedure for preparing a safe custody packet or envelope and creating both physical and electronic records. Safe custody documents were held in a fire-proof safe or cabinet. After the firm of Anthony Torre & Monaco ceased trading, both the safe custody cabinet with its contents, and the records relating to safe custody documents, were passed on to Frichot & Frichot, which continues to hold both cabinet and records.
The evidence of Mr Monaco[7] and Ms Acham,[8] and of Mr Natale Ricciardi of Frichot & Frichot,[9] is of a safe custody system maintained carefully in accordance with proper professional standards. I find with a very high degree of confidence that the original of the will did not remain with the deceased's solicitors after he made it and was never subsequently held by Anthony Torre & Monaco or by Frichot & Frichot.
[7] Affidavit of Gino Monaco sworn 19 June 2019.
[8] Affidavit of Shelley Joy Mary Acham sworn 29 May 2019.
[9] Affidavit of Natale Ricciardi sworn 11 June 2019.
There being no suggestion that some other party was given the will, the unavoidable conclusion is that the deceased took the original of the will with him when he left the solicitors' office on 3 October 2008. If find that he did.
That is contrary to what the deceased told Ms Johnstone about the whereabouts of the original will in their discussions not long afterwards.
There is no reason not to accept the evidence of Ms Johnstone that the deceased told her that his solicitors had the original of the will. That is of course only evidence of what he said to her and not evidence of the truth of that statement. It may be that the deceased mistakenly but genuinely believed that the original was with his solicitors. It might also be that the deceased thought there he had some reason not to disclose to Ms Johnstone where the original of his will was.
There does not seem to be any reason to prefer one of those hypotheses over the other. But that does not matter: what the deceased said to Ms Johnstone is not evidence of where the will actually was.
I find that the original will was last known to be in the possession of the deceased immediately after its execution. There is no evidence from anyone else who saw the original on any later date. Nor is there any evidence that the original was ever in the possession of anyone other than the deceased.
Has the presumption of revocation by destruction been displaced?
The presumption is one of fact, and the authorities make it clear that its strength depends on the circumstances: see the passage from Sawyer v McKenzie quoted earlier in these reasons, and also see Orifici as Executor of the Estate of Rosario Giuseppe Orifici v Orifici & Ors [2007] WASC 74, [58] ‑ [63] and [71] (Hasluck J).
In his affidavit of 27 June 2019 the applicant deposes that 'the terms of the Will are in accordance with the provisions that the Deceased had informed me that he had set out in his current Will not long prior to his death'.[10]
[10] Affidavit of Michael John Roberts sworn 26 March 2019 at [37(c)].
That may be seen as an effort to bring this case into conformity with those cases in which the presumption has been rebutted by evidence that the deceased continued to express testamentary intentions consistent with the missing will. It is, however, somewhat conclusionary and certainly lacking in precision (when?) and particularity (in accordance in what way?).
The evidence of the applicant in his March affidavit, which there is no reason not to accept, is that the deceased was 'a hoarder and didn't throw out papers'; that the house on his farm property was very untidy; that there 'papers and documents stacked in piles at various spots around the house'; while there were filing cabinets documents were not kept in them in any obvious system; and there were some documents in the deceased's car.
Evidence of that kind may lead to the conclusion that the failure to find a will may mean that a chaotically disorganised deceased may have inadvertently thrown out or destroyed an important document such as a will, or that it has been irretrievably lost, as opposed to deliberately destroyed with the intention to revoke it.
This evidence of the deceased's disorganisation is corroborated by what Ms Johnstone deposes to concerning her attempts to persuade him that the copy will should be kept in a safe place.
All that in isolation might tend to the conclusion that the original will was either lost or inadvertently destroyed in the confusion of the deceased's household. But there is other evidence that needs to be taken into account.
The applicant's evidence that the deceased continued to express testamentary intentions consistent with the will is not entirely consistent with his first affidavit sworn 26 March 2019 at [16]:
During the period that the Deceased remained in the Property prior to his death, he did say to me on an occasion, that he was giving some thought as to whether he wanted to change his Will. He mentioned to me that he had made a Will, wherein he had left some of his assets to Kerry and her daughter, and some to his children. He was concerned with the amount that he had left to his children, and was considering reducing the amount that he left to them. He told me that they were not deserving of the amounts that he had originally provided. He said his children had become involved with drugs.
That suggests that the deceased had at least given thought to making a new will.
The deceased's de facto relationship with Kerry Johnstone came to an end, on her evidence, in 2012. There is no evidence as to the subsequent state of matters as between them save that the evidence of the applicant is that the deceased, who had been living elsewhere, returned to Western Australia in around September 2018 after he became ill. He remained at his farm house only for a short time before going to live at Kerry Johnstone's house until he was hospitalised shortly before he died. She cared for him. There was clearly some continuing relationship.
The will provided a number of specific gifts. The first was of $200,000 to Kerry Johnstone (in the will Murdoch), or if she did not survive, then to her daughter Kristy. There was then a separate gift of $200,000 to Kristy or to her children if she in turn did not survive. There were gifts of $200,000 to each of the deceased's sons Terry and Brett, and of $500,000 to the deceased's other son Craig. The residuary estate was given to the deceased's grandchildren and the children of Kristy in equal shares.
The will therefore contains specific gifts totalling $1,300,000, of which $400,000 was to go to Kerry Johnstone or her daughter. The grandchildren of Ms Johnstone shared in the residuary estate with the deceased's own grandchildren.
The statement under r 9B of the Non-contentious Probate Rules filed with the application shows a net estate of some $926,000. That is significantly less than the specific gifts provided in the will. There would have been no residue to divide among grandchildren.
This is a case that hinges on the presumption of revocation by destruction. On all the evidence, I am not satisfied that the presumption has been rebutted. The reasons can be distilled into the following three points.
First, the evidence is that the deceased was a hoarder who did not throw out documents. If that was so, one would have expected that the thorough searches that were made after he died would have turned up the original will, probably somewhere in his house.
Secondly, the deceased's circumstances had changed in ways that would have given him every reason to reconsider his testamentary intentions. His de facto relationship with Kerry Johnstone had ended. And it appears that the value of his estate had declined significantly. There was not enough even to pay the legacies provided for in the will. The shortfall between the legacies totalling $1,300,000 and the net estate (before administration expenses) of $926,000 is substantial. There was certainly no residue to be shared among grandchildren.
Thirdly, the deceased not long before he died expressed dissatisfaction with the terms of the will, saying that he thought he had given his sons too much.
It is of course possible that the original will was somehow lost during the deceased's lifetime other than by his revoking it by destroying it. It is also possible that the original will was still in existence when the deceased died and was not discovered in subsequent searches and may well have been inadvertently thrown out by someone. But those are no more than speculation. The starting point is the presumption of revocation. Possibilities do not rebut that presumption. They cannot substitute for evidence. There is in my view no evidence that rebuts the presumption: indeed, the evidence seems to suggest that the deceased expressed dissatisfaction with the terms of the 2008 will and that he would have had good reason to change his will.
The application for probate of a copy of the will of the deceased dated 3 October 2008 must therefore be refused.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AP
Court Officer4 FEBRUARY 2020
0
6
1