Hoare, Norris Geoffrey v Johnson, Peggy Dawn & Hoare, Ronald Rex & Harper, Doreen May

[1998] TASSC 28

28/1998

PARTIES:  HOARE, Norris Geoffrey
  v
  JOHNSON, Peggy Dawn

HOARE, Ronald Rex
HARPER, Doreen May

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  1672/1994
DELIVERED:  3 April 1998
HEARING DATE/S:  9 - 11 December 1997, 18 March 1998
JUDGMENT OF:  Underwood J
CATCHWORDS:

Succession - Wills, probate and administration - Probate and letters of administration - Evidence - Onus of proof - Standard of proof required - Lost will.

Gair and Others v Bowers and Others (1909) 9 CLR 510, applied.
In re Plunkett, deceased [1965] VLR 118; Cutto v Gilbert [1854] 9 Moore 130 (14 ER 247); Re Wyatt (deceased) [1952] 1 All ER 1030, followed.
Aust Dig Succession [133]

Succession - Wills, probate and administration - The making of a will - Revocation - Methods of revocation - Other wills, codicils or writings - Revocation - By subsequent will not produced - Necessity for proof of express revocation or inconsistent disposition.

Gair and Others v Bowers and Others (1909) 9 CLR 510, applied.

Cutto v Gilbert [1854] 9 Moore 130 (14 ER 247); Re Wyatt (deceased) [1952] 1 All ER 1030, followed.

Aust Dig Succession [55]

REPRESENTATION:

Counsel:
             Plaintiff:  A M Blow QC
             First and Second Defendants:      W T McMillan and G N McLean
             Third Defendant:  P McManus (given leave to withdraw)
Solicitors:
             Plaintiff:  McGrath & Co
             First and Second Defendants:      McLean Phillips & Bartlett
             Third Defendant:  McManus Palmer & Zeeman

Court Computer Code:  
Judgment ID Number:  28/1998
Number of pages:  8

Serial No 28/1998
File No 1672/1994

NORRIS GEOFFREY HOARE v PEGGY DAWN JOHNSON,
RONALD REX HOARE and DOREEN MAY HARPER

REASONS FOR JUDGMENT  UNDERWOOD J

3 April 1998

Introduction

Tasman William Hoare ("the deceased") died on 9 January 1994.  He was the plaintiff's brother.  In a will dated 12 December 1964, the plaintiff is named as one of two executors and the sole beneficiary of the estate of the deceased.  The plaintiff propounds this will as the last will of the deceased and seeks an order that it be admitted to probate in solemn form.  The first two defendants are siblings of the plaintiff and all three are administrators ad colligenda bona of the deceased's estate.  (At the commencement of the proceedings Mr McManus appeared for the third defendant and advised the Court that her interests in this litigation were identical to the interests of the first and second defendants and, accordingly, sought, and was given, leave to withdraw.) 

By their defence the defendants put the plaintiff to proof that the will dated 12 December 1964 was duly executed.  Mr McGrath, the solicitor who drew the will, gave evidence that he and his wife, in the presence of the deceased and each other, witnessed the deceased append his signature to the will.  I accept that evidence and find that the will dated 12 December 1964 was duly executed. The substantive issue in this litigation arises out of a counterclaim.  By the counterclaim, the defendants allege that the will of 12 December 1964 was revoked by a later will dated 14 April 1967.  That document was not produced, it having been either lost or destroyed.  For reasons which will appear shortly, I am satisfied that there was a document dated 14 April 1967 which purported to be a will ("the 1967 document") but before it operates to revoke the 1964 will, the defendants have to satisfy the Court that the missing document:

_    was properly executed (Wills Act 1840, s9);

_    it expressly revoked the prior will, or its terms were such that it impliedly revoked the prior will.

All the evidence on these two critical issues was circumstantial.  The defendants contend that I should be satisfied that they have discharged the burden of proof they carry and find that the 1967 document was properly executed and expressly revoked all prior wills.  The plaintiff contends to the contrary.  If the defendants succeed, there will be an intestacy.  If they do not, the 1964 will, will be admitted to probate.

The Circumstantial Evidence that there was a Will Dated 14 April 1967

It appears that the deceased was somewhat of a "character" and those who met him remember him for he almost always was seen wearing a "cowboy" style hat.  Exhibit D1 is a photograph of the deceased wearing this hat. 

The deceased was a client of a former Launceston firm of solicitors, Tyson & Tyson.  Dr Tyson was the sole proprietor of this firm until 1952 when he and Mr G R Lyon entered into partnership.  In about 1968, Mr Robert Tilt joined this partnership and in about 1971, Mr Philip Page became the fourth partner.  In the 1960s the firm maintained a system of "law ledger cards".  Mr Lyon said that these cards were a record of clients' visits to the firm and contained a brief note of instructions given and/or action taken.  Mr Lyon said that the deceased never consulted him, but he was well able to recall seeing him in the offices of Tyson & Tyson from time to time. 

Tendered into evidence were three law ledger cards for the deceased.  The first entry on the first card records a visit on 3 April 1964.  This consultation concerned a property sale.  There were two more consultations in 1964, the last on 30 November that year; both related to property matters.  The deceased's law ledger card does not record another visit until 18 November 1966, so it appears that in the twelve days between the deceased's visit to Tyson & Tyson on 30 November 1964 and 12 December that year, he had consulted another solicitor, Mr McGrath, and made the will which the plaintiff propounds.  The entry for 18 November 1966 also relates to a property transaction.  The last entry on the first law ledger card is dated 9 March 1967.  It reads, "Attng you recg instrons for yr Will".  The law ledger card does not disclose which member of the firm of Tyson & Tyson the deceased consulted on 9 March 1967 but, in view of the evidence of Mr Lyon, it must have been either Dr Tyson or Mr Tilt, who was at that time an employed practitioner at the firm.  As Mr Tilt was not an employee in 1964, the deceased must have consulted Dr Tyson on the earlier occasions, and it is tempting to conclude that it was he to whom the instructions for a will were given in 1967 but, on reflection, the state of the evidence is such that I am unable to make that finding.

The firm of Tyson & Tyson maintained a card register of wills, deeds and other documents kept in the strongroom.  The card kept for the deceased was tendered into evidence.  The first entry is typed:

"14th April, 1967:          Your Will.        260/1"

That document remained in Tyson & Tyson's strongroom until 28 August 1981, a period of fourteen years.  During that time there were a number of changes in the constitution of the firm. 

_    as mentioned, Mr Philip Page became a partner in about 1971;

_    Dr Tyson died in about December 1971, but Messrs Lyon, Tilt and Page continued to practice in partnership under the old firm name;

_    a Mr Bruce Levet entered into articles of clerkship at the firm in 1980;

_    Mr Tilt died on 18 June 1981;

_    in August 1981, the surviving partners, Messrs Lyon and Page, discontinued working together.  Mr Lyon commenced practice on his own account under the firm name of G R Lyon & Co but remained in the premises formerly occupied by Tyson & Tyson.  Mr Levet stayed with him.  Mr Page went to practice elsewhere in Launceston.

There is a hand-written entry on the deceased's strongroom card:

"YOUR WILL — TAKEN BY YOU

28/8/81"

Next to that entry appears a signature purporting to be the signature of the deceased.

Mr Levet, now a barrister in Sydney, gave evidence (by video link) with respect to that entry.  He said that he made it and is able to recall the occasion.  He explained that when Messrs Lyon and Page went their separate ways, a number of the former clients of the firm of Tyson & Tyson came to the premises then occupied by G R Lyon & Co and asked for their deeds and other documents that were kept in the strongroom.  Mr Levet recalled the deceased and his hat.  His evidence was:

"I recall Mr Hoare coming in and asking me for some documents.  I can't specifically recall if it was the 1967 will or not, but there was only one occasion that he asked for documents.  I can recall that he came into the office, I spoke to him near the front counter of the office, and he asked for some documents.  I asked somebody, I cannot recall who it was, I think it would probably have been Mrs Bayes, to get the documents out of the strongroom.  Mrs Bayes was the deeds clerk and didn’t particularly like anybody else going into the strongroom, she certainly didn’t like apprentices going into the strongroom.  I would have asked her — I asked somebody, I think her, to get the documents and I then signed them out to him."

The document which was kept in the strongroom of Tyson & Tyson until 28 August 1981 has not been located.  Some evidence was proffered to suggest that the deceased burnt this document one afternoon when accompanying the plaintiff on a fishing expedition, but I have little faith in the veracity of that evidence.  There was evidence that extensive searches have been made in an attempt to find either the original or a copy of the document.  They were all unsuccessful.

In the light of the evidence that I have just outlined, the following findings are the only ones open on the evidence and I make them:

_    a document dated 14 April 1967 purporting to be a duly executed will of the deceased was kept in the strongroom of the legal firm of Tyson & Tyson and remained there until it was taken away by the deceased on 28 August 1981;

_    that document has been destroyed or is lost.

Counsel for the plaintiff, Mr Blow QC, did not contend that any other findings were reasonably open but submitted that such findings did not mean that the defendants had discharged the burden of proof they carried to establish that the 1967 document:

_    had been properly executed; and/or

_    expressly revoked the prior will.

For the defendants, Mr McMillan relied upon other circumstantial evidence which he claimed was sufficient to discharge the evidentiary burden that fell upon the defendants.

The Circumstantial Evidence of Due Execution and Revocation of the Prior Will

There was an abundance of evidence from a number of witnesses who knew Dr Tyson and Mr Tilt.  All of that evidence was to the effect that both were competent, skilled, careful and meticulous solicitors.  There is no reason to doubt any of that evidence.

Mrs Champ started work at Tyson & Tyson as a junior secretary to Mr Tilt in 1973.  She described Mr Tilt as "very fussy" and said that whenever she typed a will for him, she typed in a revocation clause.  I accept Mrs Champ's evidence in its entirety, but its probative value is greatly diminished because she could speak only of events commencing six years after the 1967 document came into existence and because the deceased may not have consulted Mr Tilt with respect to it. 

Mrs Bayes started work at Tyson & Tyson in 1975.  She was the deeds clerk.  I am in no doubt that she kept the deeds and related records in immaculate order.  Before she indexed a will and placed it in the strongroom, she checked it to see if it contained a revocation clause and if it appeared to have been properly executed.  I accept the entirety of Mrs Bayes' evidence but its probative value is also diminished because the 1967 document had already been sitting on a shelf in the strongroom for eight years when she started work at Tyson & Tyson.  There was no evidence that the kind of practice Mrs Bayes followed was followed in 1967.

Mr Zeuschner, who gave evidence, is now a farmer, but he began his working life a year after the 1967 document came into existence as a law clerk at Shields Heritage Stackhouse & Martin, a legal firm in Launceston.  In July 1981, he went to work with Mr Lyon.  He was there when Mr Levet was there.  Mr Zeuschner said that the contents of Tyson & Tyson's strongroom remained with Mr Lyon until his practice was taken over by Mr Jones.  Mr Jones practised under the firm name of Donald J Jones & Associates and kept the old Tyson & Tyson strongroom.  Mr Jones became a magistrate and the strongroom passed into the hands of Bishops.  There, Mr Zeuschner spent many hours searching for a copy of the 1967 document and any other relevant material.  He was able to locate the deceased's law ledger cards and the deceased's deeds register card but he was unable to find a copy of the 1967 document or any file relating to it.  Mr Zeuschner said that he found a bundle of copy wills that were made in 1967.  He carefully inspected all those made for testators whose surname began with the letter "H" and quickly inspected the remainder.  Nothing relevant was found.

In cross-examination, Mr Zeuschner said that in his "experience as a law clerk" it did happen occasionally that the solicitors with whom he was "acquainted" prepared wills and sent them out to clients by mail for signature. 

Mr Peter McManus, legal practitioner of Launceston, also gave evidence.  Like Mr Zeuschner, he, too, searched the files and records of Tyson & Tyson, on one occasion in the company of Mr Zeuschner and a number of other people.  He was unable to find any other relevant material but he did make a careful inspection of the copy wills made in the firm of Tyson & Tyson during the year 1967.  He said that there were one hundred and seventeen such wills.  He said that all of them had a revocation clause, in eighty-one cases the clause was at the beginning of the will, and in the remainder, the clause was at the end of the will.  Mr McManus said (without objection) that his secretary inspected the bundles of copy wills made in 1966 and 1968 and all of them contained a revocation clause, either at the beginning or at the end.  The closest Mr McManus got to the 1967 document was a note in a file kept in the name of the deceased relating to a property purchase from R McDonald.  Mr McManus thought this note bore Dr Tyson's initials.  It recorded an attendance on Mr Hoare on 9 March 1967 to receive a cheque.  There is no mention of a will even though the date on the note is the same as the date recorded on the law ledger card for the receipt of instructions for a will.  Mr McManus' evidence-in-chief concluded with the observation that he had seen many wills and all of them had a revocation clause.

In his evidence, Mr Lyon spoke of Dr Tyson's meticulous work.  He said that his practice was to record instructions in hand writing, dictate or write a draft, settle the draft and have it engrossed.  Mr Lyon said a revocation clause was a standard inclusion, adding, "I cannot imagine any circumstances in which it would not have been included."  Mr Lyon said he had never seen a will that did not contain a revocation clause.

I accept, in its entirety, the evidence of Messrs Zeuschner, McManus and Lyon.  The substance of their evidence was not challenged.

Mr Levet was the only legal practitioner or para-legal officer who claims to have actually seen the 1967 document.  He said that following the death of Mr Tilt and the establishment of separate practices by Mr Lyon and Mr Page, it was not uncommon for clients to call for their deeds.  He said he had been instructed to follow a procedure.  The procedure included opening the envelope and checking the contents against the entry on the deeds register card to see that the entry was correct.  Mr Levet said that he was instructed to then write, "taken by you" on the card and to get the client to sign it.  He was then asked these questions and gave these answers:

"And if the document were [sic] a will, was there anything you would be looking at in relation to a will being taken? ... I would scan the document to see that it was a will.  I scanned the document to see that it was the same will contained on the deeds card and I would basically be checking to see if it was a valid will.

And at that time what did you understand were the essentials for a valid will? ... I would have been checking that the document had been signed by the testator.  I would have been checking that it had been witnessed by two persons, that it had been dated.  It would have been a fairly brief check."

I accept Mr Levet's evidence that in 1981 he was instructed to follow a procedure when handing over clients' deeds which were kept in the strongroom.  Mr Levet made it clear that although he had a clear recollection of handing a document to the deceased, he does not now recall what the document was, but on seeing the entry on the deeds register card, believes it was a will.  It follows, and I so find, that Mr Levet has no recollection of whether or not he checked the will in accordance with the procedure he was required to follow.  He agreed with Mr Blow QC in cross-examination that it was possible that the deceased spoke first to Mr Lyon about collecting the 1967 document and before the collection was complete, he was called in to complete it for Mr Lyon.  I should interpolate here that the system of checking out documents was not entirely foolproof, for the deceased has apparently signed for the receipt of some deeds and the date he has put next to his signature "2/7/96" is 2½ years after his death!

Mr Levet was cross-examined in an attempt to establish that he was not always a careful and methodical articled clerk and later, legal practitioner.  I think a fair inference to draw from his frank answers is that there were occasions in the 1980s when Mr Levet did not pay the attention he ought to have paid to his work.  In the end, however, I do not think this matters very much, for Mr Levet does not claim that he can recall that the 1967 document he gave the deceased was a will or that he looked at it and it appeared to be duly executed and dated.  Under cross-examination it was put to Mr Levet that he did not give the 1967 document "as much scrutiny as you've said you were used to giving such documents" but Mr Levet responded that that was not correct.  In his next answer, Mr Levet repeated that he did not actually recall the document he handed over, but he did recall the incident and that he "went through certain procedures".  It seemed to me that Mr Levet was there taking his position a step further than it had been in evidence-in-chief, as reflected in the passages I have earlier set out.  If by the cross-examination Mr Levet wished to convey that he actually recalled checking the will when he handed it to the deceased in 1981, and that it was dated and appeared to be correctly signed, I do not accept his evidence in this respect.  However, I doubt if Mr Levet really intended to convey that impression.  If he was unable to recall the nature of the document he handed over, he would not be able to recall looking at it and satisfying himself that it appeared to be dated and correctly executed.

That is the evidence on the twin issues:

_    was the 1967 document executed in accordance with the Wills Act 1840, s9?

_    did it contain a revocation clause?

The question now is whether the defendants have discharged the burden of proof they carry.  Mr McMillan submitted that they had and that I should draw the necessary inferences from the evidence I have recounted.  Mr Blow QC submitted that the defendants had not discharged the burden of proof that fell upon them and the following possibilities were open on the evidence as I have found it:

_    The 1967 document was not prepared at Tyson & Tyson.  The deceased's law ledger card indicates that instructions were given but, contrary to the practice, records no further attendance to sign it and no copy has turned up in the bundle of copy wills made in 1967.

_    The will was not executed at the offices of Tyson & Tyson.  There is no record of it having been so executed and Mr Blow QC refers to the cross-examination of Mr Zeuschner about "solicitors" sometimes mailing wills out for signature.

_    Even if Mr Levet did see the will and it did appear to have been properly executed, as a matter of fact, that is not evidence that the deceased signed it in the presence of both of the witnesses who, in the presence of each other, appended their signatures to the document.

_    There was no direct evidence of any revocation clause and even if the Court was prepared to draw the inference that if prepared at Tyson & Tyson, there was only a "slim chance" that it did not have a revocation clause, the different practices for the location in the will of that clause gave rise to the possibility of error.

The Law

The most frequently cited authority on the burden and standard of proof with respect to lost testamentary instruments is Cutto v Gilbert [1854] 9 Moore 130 (14 ER 247). Dr Lushington said at 140 (at 251):

"We agree in the position laid down at the Bar, that the onus probandi lies upon her : she must prove the execution of the subsequent Will, and establish her position of law that it is a revocation, with reference to all the facts connected with such subsequent Will.

The fact first to be proved, is the execution of some subsequent testamentary paper ; and we here think it right to observe, that we are of opinion, that where the revocation of an existing Will is sought to be established by the proof of the execution of a subsequent Will not appearing, and where there is no draft or instructions in writing, when such fact is to be proved by oral evidence only, such evidence ought to be most clear and satisfactory ; for we concur in the opinion which has been expressed by very learned persons, that to revoke an existing Will by parol evidence alone that another Will has been executed, is, though the law may admit of it, a course of proceeding not unattended with danger, and consequently, that such oral evidence ought to be stringent and conclusive."

Approval of Cutto v Gilbert was expressed by the High Court in Gair and Others v Bowers and Others (1909) 9 CLR 510 at 522 and 527. In re Plunkett, deceased [1965] VLR 118, Smith J reviewed the authorities dealing with the onus and standard of proof, in particular, the suggestion that the standard might be the criminal standard, and said, at 123:

"One may take leave to doubt, however, whether Lord Herschell or the learned judges who took over from him and adopted the expression 'reasonable doubt' intended to lay down that the criminal onus must be satisfied.  It seems more probable that they were merely seeking to express in emphatic language the principle laid down by the Privy Council in Cutto v Gilbert, supra, and by other early authorities that the evidence should be closely scrutinized and convincing proofs required.  The onus is no doubt the civil onus.  But as was explained by Dixon J, in Briginshaw v Briginshaw (1938), 60 CLR 336, at pp 361-2; [1938] ALR 334, the Court, when applying that standard, must feel an actual persuasion of a fact before it can be found. The fact must be made out to its reasonable satisfaction having regard to the seriousness of what is alleged, any inherent unlikelihood of its occurrence or existence, and the gravity of the consequences flowing from a finding."

Counsel referred to quite a number of cases.  They all applied the onus and standard set out by Dr Lushington in Cutto v Gilbert (supra).  They are, therefore, all illustrations of the application of the law to particular facts.  For the defendants, Mr McMillan relied, in particular, on In the Estate of Hampshire, deceased [1951] WN 174. In that case, the evidence established that the deceased, who died in 1949, duly executed a will in 1926. It was deposited with a firm of solicitors and produced after death. The short form of report states that there was evidence before the Court, which was accepted, that at some date between 1938 and 1940, the deceased executed another will which could not be found. A solicitor stated in an affidavit that he had personal recollection of preparing a will for the deceased, but he had no papers relating to this will as his office was destroyed by enemy action during the war. The solicitor said that the later will was handed over to the deceased and taken away after its execution. The solicitor's affidavit went on to say that he could not recall the contents or nature of the will, nor who were the witnesses. He said he could not remember whether it contained a revocation clause or not, although he had no doubt it contained a gift of the residue. The report of the judgment is no more than a few lines. In it, Karminski J says, with respect to the execution of the will, "I formed the view that the deceased did execute a will which was prepared for him in or about 1938 ... and that that will was duly executed". It may be observed that in that case there was direct affidavit evidence from the solicitor who prepared the will that it was executed, even though the solicitor could not remember the names of the witnesses. In the present matter there is no direct evidence that the will was ever executed at all.

The test propounded in Cutto v Gilbert was applied by Collingwood J in Re Wyatt (deceased) [1952] 1 All ER 1030. In that case the deceased made a will in 1935 and a codicil in 1937 by which she appointed the plaintiff bank to be her executors. In October 1937, she instructed a solicitor to prepare another will which was duly executed and deposited with the plaintiff bank. On 4 May 1939, the deceased withdrew this later will from the bank and it was never seen again, nor was there any information available concerning its contents, except that it was the solicitor's usual practice to include a revocation clause in any draft will and submit each draft to the proposed testator or testatrix for perusal and approval. At 1033, Collingwood J said:

"In this case, on the evidence before me, I think that so to find [that the will contained a revocation clause] involves the assumption that the solicitor's usual procedure was in fact followed in the present instance, and the further assumption that the testatrix accepted the draft as correctly expressing her intentions in the matter.  In my opinion, I ought not to make these assumptions in respect of a will the contents of which are wholly unknown.  To do so would, I think, be to substitute surmise for the 'stringent and conclusive' oral evidence required by Dr Lushington in Cutto v Gilbert and thereby, to use his words, to pursue 'a course of proceeding not unattended with danger'."

In Re Dear (deceased) [1975] 2 NZLR 254, a will and codicil was prepared by a solicitor in 1942 and kept in his office for some years until taken away by the testatrix. One of the issues in the case was whether the missing will contained a revocation clause. Woodhouse J referred, at 267, to Cutto v Gilbert and observed that there was no evidence of the contents of the 1942 document other than the solicitor's belief that it was most likely that it contained a revocation clause, for the solicitor had never drawn a will without such a clause.  However, Woodhouse J pointed out that even if it did contain a revocation clause, there is nothing to suggest that it was of general application or whether it was restricted to a particular document or documents.  In W A Trustee, Executor & Agency Co Ltd (1955) 57 WALR 25, Jackson J observed at 40:

"I feel bound to hold that the mere fact that a will is prepared by a competent and careful solicitor is not of itself sufficient evidence that it revoked an earlier will."

If a will, on the face of it, appears to be duly executed, the presumption is in favour of due execution: omnia præsumuntur rite esse acta.  See, eg, In the Estate of Musgrove deceased, Davis v Mayhew [1927] P 264. Similarly, where there is a proper attestation clause, even though there may be no evidence of the circumstances surrounding the will's execution from the witnesses, the same presumption applies. See, eg, Woodhouse v Balfour (1887) 13 P D 2. 

However, in this case, there is neither the original nor a copy of the purported testamentary instrument.  There is, therefore, no basis for the application of the presumption and no evidence, other than that concerning the high standards of practice adopted by Dr Lyon and Mr Tilt, to establish that it was signed by the deceased in the presence of two witnesses.  Moreover, there is evidence, not to counter those high standards, but which throws doubt on their relevance.

_    There is neither oral nor written evidence tending to prove that the 1967 document was executed by the deceased in the offices of  Tyson & Tyson.

_    There is evidence surrounding the making of the will propounded by the plaintiff that shows the deceased was willing to consult more than one legal practitioner at about the same time.

_    In addition to there being no copy will, there is no evidence of a file for a will and there is no note of any attendance on the deceased to execute his will.  Had there been such evidence, it would have lent force to the circumstantial evidence of the high standards of practice maintained by Dr Tyson and Mr Tilt.  Indeed, the circumstances of this case admit the possibility that even though instructions for a will were given to either Dr Tyson or Mr Tilt, the 1967 document was never prepared by a solicitor at  Tyson & Tyson, but was prepared by someone else and later lodged in the solicitor's strongroom.

In these circumstances, a finding that the 1967 document was executed in the circumstances prescribed by the Wills Act 1840, s9 requires the making of more than one assumption and I have reached the conclusion that the evidence does not satisfy the "stringent and conclusive" criteria established in Cutto v Gilbert.

The same reasoning applies to the issue of whether the 1967 document contained a revocation clause, although I observe that it would have less force if I could be satisfied that the 1967 document kept in the strongroom of  Tyson & Tyson had been prepared by Dr Tyson.  However, I cannot be so satisfied and accordingly cannot find that the 1967 document expressly or impliedly revoked the 1964 will.  In these circumstances, the defendants have not discharged the burden of proof that falls upon them. 

On the claim there will be an order that the will of the deceased dated 12 December 1964 be admitted to probate in solemn form.  Upon the counterclaim, there will be judgment for the plaintiff against the defendants.