In the Estate of AILEEN MARGARET GIBBS (DECEASED)
[2012] SASC 230
•17 December 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of AILEEN MARGARET GIBBS (DECEASED)
[2012] SASC 230
Judgment of The Honourable Justice Gray
17 December 2012
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION
SUCCESSION - MAKING OF A WILL - REVOCATION - METHODS OF REVOCATION - DESTRUCTION OR MUTILATION, OR STRIKING OUT PORTIONS - PRESUMPTION OF DESTRUCTION OF LOST WILL INTENDED TO BE REVOKED
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - GENERALLY
SUCCESSION - MAKING OF A WILL - EXECUTION - GENERALLY - OTHER CASES
Application for a grant of probate of a will as contained in what was said to be an unsigned, undated copy of the will - where a will was prepared by Tower Trust Limited for the deceased and was posted to her - where subsequent correspondence between Tower Trust and the deceased suggested that the deceased had executed the will and was in possession of it - where the original will could not be found - the Court was principally concerned with four issues - whether the will was duly executed - whether the propounded copy will was an accurate and complete copy of the original will - whether the presumption of revocation arose and had been rebutted - whether the deceased had testamentary capacity at the time of execution of the will.
Held: Application refused - the original will existed and was duly executed - the terms of the propounded copy will were an accurate and complete copy of the original will - however, the presumption of revocation arose and had not been rebutted - the deceased had testamentary capacity when she executed the will - the deceased died intestate.
Administration and Probate Act 1919 (SA) s 72G and s 72I; Wills Act 1936 (SA) s 8, referred to.
In the Estate of Hall (deceased) [2011] SASC 117; In the Estate of Engelhardt Deceased [2010] SASC 196; In the Estate of Roediger Deceased [1967] SASR 118; Cahill v Rhodes [2002] NSWSC 561; Curley v Duff (1985) 2 NSWLR 716; In the Will of Molloy [1969] 1 NSWR 400; Gair v Bowers (1909) 9 CLR 510; Allan v Morrison [1900] AC 604; Welch v Phillips (1836) 1 Moo PC 299; McCauley v McCauley (1910) 10 CLR 434; Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993); Colvin v Fraser (1829) 2 Hag Ecc 266; In the Estate of Gerard Deceased (2007) 251 LSJS 176; Gordon v Beere [1962] NZLR 257; Sugden v Lord St Leonards (1876) LR 1 PD 154; Finch v Finch (1867) LR 1 P & D 371; Sprigge v Sprigge (1868) LR 1 P&D 608, considered.
In the Estate of AILEEN MARGARET GIBBS (DECEASED)
[2012] SASC 230Testamentary Causes Jurisdiction
GRAY J.
This is an application for a grant of probate of a will as contained in what is said to be an unsigned, undated[1] copy of the will.
[1] The will is undated except for the year “2000” which has been typed.
Background Facts
Aileen Margaret Gibbs, the deceased, died on 20 November 2009, aged 82 years. She was survived by five children – Raymond John Ferguson, Frances Margaret Collins, Michele Annette Carlson, James Peter Gibbs and Ingrid Robyn Headon. All of the deceased’s children are sui juris.
On 10 December 1999, the deceased executed a will appointing two executors and trustees – her son, James, and Tower Trust Limited, now known as Australian Executor Trustees Limited.
In 2000, Tower Trust prepared another will for the deceased. In this will, the deceased’s daughter, Frances, and her son, James, were appointed as the executors and trustees. Frances is the applicant in the within proceeding.
The practice of Tower Trust in 2000 in respect of wills in which it was not appointed as an executor has been described in the following terms. Instructions from the testator were taken by an officer of Tower Trust either at the testator’s home or at the Tower Trust offices. If the testator did not want to execute the will at the Tower Trust offices, a duly engrossed will, prepared in accordance with the instructions given by the testator, was sent by mail to the testator together with a covering letter, an enclosed “How to Sign” form, a draft letter addressed to Tower Trust for the testator to complete and return to Tower Trust and a prepaid envelope. The covering letter requested the testator to return the executed will to Tower Trust for checking. Once the will was returned to Tower Trust by the testator, it was checked by a trained administrative officer to ensure that it was properly executed. If it was found to be in order, the will was returned to the testator along with a letter advising that the will should be stored in a safe location with other important documents.
In the within proceeding, there is evidence that the above practice was followed. There is a letter dated 4 May 2000 which was sent by Tower Trust to the deceased indicating that it enclosed a “How to Sign” form, a draft letter addressed to Tower Trust for the deceased to complete, the unexecuted 2000 will and a pre-paid envelope. The deceased returned the draft letter addressed to Tower Trust. This letter has been dated 5 May by hand and is signed by the deceased. The letter relevantly provides:
Dear Sir,
Re Will for:
Name: AILEEN MARGARET GIBBS
Address: UNIT 2 … LARGS BAY 5016
I advise that I have signed my new Will on 5TH/5TH/2000 appointing private executor(s).
Accordingly, please note your records of the revocation of my Will held by your company.
[Emboldening indicates that the words were handwritten.]
By letter dated 16 May 2000, Jill Hargrave, an administrative officer of Tower Trust, wrote to the deceased. That letter relevantly provides:
Thank you for the return of your signed Will.
We enclose the original Will for you and recommend that you file it in a safe place with your other important papers.
We also enclose a copy of the Will for your records.
We have noted our records that you have now completed a new Will not appointing our company as an executor.
The original version of the 2000 will cannot be found and the identity of any witnesses of that will is unknown. The propounded document is a copy of the 2000 will which was printed from the computer system of Australian Executor Trustees. It is unsigned and undated. The propounded document is in the following terms:
THIS IS THE LAST WILL of me AILEEN MARGARET GIBBS of Unit 2 … Largs Bay in the State of South Australia Home Duties.
1I REVOKE all prior Wills and testamentary acts.
2I APPOINT my children FRANCES MARGARET KERR[2] and JAMES PETER GIBBS to be my EXECUTORS and TRUSTEES (“my Trustees”).
[2] Now known as Frances Margaret Collins.
3I GIVE my estate to my Trustees UPON TRUST AS to my property at Unit 2 … Largs Bay (“my property”) TO PERMIT my daughter INGRID ROBYN HEADON to have the use and enjoyment thereof during her life for a period of twelve calendar months from the date of my death or for such shorter period as she shall elect subject to her paying all rates taxes insurance premiums and other outgoings payable in respect thereof and keeping the improvements erected thereon insured against any risk which my Trustees may think fit AND I DECLARE that my daughter shall hold my property in the same order and condition as at the date of my death (fair wear and tear excepted) AND SUBJECT thereto I DIRECT that my property shall fall into my residuary estate.
4AS to the remainder of my estate I DIRECT my Trustees TO PAY my debts funeral and testamentary expenses and any duties payable in respect of my estate without any adjustment or apportionment of such duties AND TO DIVIDE the balance then remaining (“my residuary estate”) equally between my children RAYMOND JOHN FERGUSON FRANCES MARGARET KERR MICHELE ANNETTE CARLSON JAMES PETER GIBBS and INGRID ROBYN HEADON as shall survive me.
5I GIVE to my Trustees the following powers:-
(a) TO SELL such parts of my residuary estate as my Trustees shall think fit -
(b) TO RETAIN the whole or any part of my estate in the same state of investment as at the date of my death but without my Trustees being in any way responsible for any loss occasioned thereby -
(c) TO APPROPRIATE any parts of my residuary estate towards the share of any beneficiary of mine and for such purpose to fix the value of such share as my Trustees shall think fit AND TO CHARGE any such share with such sum by way of equality or adjustment as my Trustees shall think fit AND I DECLARE that it shall be lawful for my Trustees to exercise this power in favour of my children FRANCES MARGARET KERR and JAMES PETER GIBBS notwithstanding that they may act in the trusts of this my Will.
6I DECLARE that my children FRANCES MARGARET KERR and JAMES PETER GIBBS may purchase either privately or at auction any part of my estate notwithstanding that they may act in the trust of this my Will.
7I DIRECT that no income received shall be apportioned or treated as capital and that no apportionment of the income of any part of my estate shall take place and that no rules of apportionment whether legal or equitable between capital and income shall be applicable in my estate.
DATED the ………………………...day of ………………………2000
………………………………………….
TESTATRIX (sign)
SIGNED by AILEEN MARGARET GIBBS in the presence of us both present at the same time who in his presence and in the presence of each other have signed our names as witnesses.
1st Witness 2nd Witness
Signature …………………………… Signature …………………………………
Print Name ………………………… Print Name ……………………………….
Occupation …………………………… Occupation ………………………………
Address ………………………………. Address …………………………………..
………………………………………… ……………………………………………
prs/5
Legal Principles
A convenient starting point for applications for admission of a copy will to probate is rule 68 of the Probate Rules 2004 (SA). That rule is in the following terms:
68.01 An application for an order admitting to proof a nuncupative will made in accordance with section 11 of the Wills Act, 1936, or a will contained in a copy, a completed draft, a reconstruction or other evidence of its contents where the original will is not available, may be made without notice to any other party to the Registrar by summons in the Form No. 33.
Provided that where a will is not available owing to its being retained in the custody of a foreign Court or official or a Court or official of any of the Australian States or Territories a duly authenticated copy of the will may be admitted to proof without such order as aforesaid.
68.02 The application shall be supported by an affidavit setting out the grounds of the application and by such evidence on affidavit as the applicant can adduce as to -
(a) the due execution of the will;
(b)its existence after the death of the testator (or if the will cannot be found at the testator's death such evidence as shall rebut a presumption of its revocation by the testator); and
(c) the accuracy of the copy or other evidence of the contents of the will;
together with the consents in writing to the application given by all persons who may be prejudiced by the grant:
Provided that if a person who is prejudiced by the application is not sui juris or cannot be ascertained or found, or if the Registrar is satisfied that in the circumstances it is just and expedient to do so, the Registrar may dispense with such consent.
Missing wills have been the subject of much judicial commentary. In In the Estate of Hall (deceased), I extracted the following considerations for admission of a copy of a missing will to probate from that commentary:[3]
[3] In the Estate of Hall (deceased) [2011] SASC 117, [15].
·that the original will existed;[4]
[4] 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.
·that the original will was duly executed[5] 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;[6]
[5] 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.
[6] See for example, section 12(2) of the Wills Act 1936 (SA); see also, Cahill v Rhodes [2002] NSWSC 561, [53]-[55].
·that there is evidence of the terms of the original will;[7]
·that the copy will is an accurate and complete copy of the original will;[8]
·that thorough searches have been conducted to find the original will,[9] including publishing advertisements regarding the missing original will;[10]
·that the original will revoked all pre-existing wills;[11]
·the circumstances surrounding the absence of the original will;[12]
·that all persons prejudiced by the application, if it is granted, have consented to the application and are sui juris;[13] and
·that the presumption of revocation does not arise or has been rebutted.[14]
I propose to address these matters in turn.
Consideration
[7] Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 719.
[8] In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; In the Estate of Roediger Deceased [1967] SASR 118, 120.
[9] In the Estate of Engelhardt Deceased [2010] SASC 196, [20].
[10] In the Estate of Roediger Deceased [1967] SASR 118, 120.
[11] Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 718-719.
[12] In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; In the Estate of Roediger Deceased [1967] SASR 118, 120.
[13] In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; In the Estate of Roediger Deceased [1967] SASR 118, 120.
[14] Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 719; Allan v Morrison [1900] AC 604.
Existence of the Original Will and Due Execution
There is no direct evidence of due execution of the 2000 will as there is no evidence that a signature was made or acknowledged by the testator in the presence of two or more witnesses present at the same time and that the signatures of the witnesses were made or acknowledged in the presence of the testator, but not necessarily in the presence of each other.[15] The deceased had previous experience executing wills as she executed one in 1999. It can be inferred that the deceased also had been provided with instructions from Tower Trust regarding the requirements for due execution, even though the terms of the “How to Sign” form have not been disclosed. Further, it can be inferred from the letter dated 16 May 2000 of Ms Hargraves to the deceased that the 2000 will which had been sent to her by Tower Trust for execution appeared to have been properly executed. The evidence as to the usual practice of Tower Trust at the relevant time indicates that the will would have been checked by a trained administrative officer to ensure that it had been properly executed. It was only after this check had occurred that the will would have been returned to the testator along with a letter advising that the will should be stored in a safe location with other important documents. According to secondary evidence, Ms Hargraves does not have any specific recollection of the deceased’s 2000 will or of the circumstances surrounding its preparation and execution.
[15] See section 8 of the Wills Act 1936 (SA).
Assuming that the usual practice was followed, the letter of 16 May 2000 is evidence that an original version of the 2000 will existed. There is nothing to suggest that the usual practice was not followed. Further, the combination of the following factors satisfies me that the deceased’s 2000 will was duly executed: the deceased’s prior experience in executing a will; the provision of instructions for due execution; the existence of an attestation clause on the copy will which provides that it was “signed by [the deceased] in the presence of us both present at the same time who in his presence and in the presence of each other have signed our names as witnesses”; and the checking process by Tower Trusts. I am therefore of the view that the original 2000 will existed and that it was duly executed.
Accurate and Complete Copy of the Original Will
As earlier mentioned, the propounded will is unsigned and undated. If the usual practice set out above was followed, it is likely that the will which was signed by the deceased was that which was posted to her by Tower Trust. However, there is no direct evidence on point. There is also no evidence as to whether the deceased made any alterations to the will before she signed it. I must therefore consider whether the applicant has sufficiently proved the contents of the missing will.
As noted above, the usual practice of Tower Trust involves sending an unsigned will to the testator, receiving an executed will from the testator, checking that the will was properly executed and then returning it to the testator. It can be inferred that if the deceased had returned an executed will which differed either completely or in part from the unsigned and undated version which had been sent to her by Tower Trusts, then this would have been mentioned by Ms Hargraves in the letter of 16 May 2000 or would have been noted by Tower Trusts in some other way. There is no evidence that there was anything unusual about the will which was returned to Tower Trusts by the deceased for checking.
The terms of the propounded document would appear to be unexceptional. A daughter of the deceased, Ingrid, is entitled to the use and enjoyment of real property being a unit owned by the deceased at Largs Bay for a period of up to 12 months after the death of the deceased. The residue of the estate is to be divided equally between the children of the deceased. As events transpired, the deceased’s home property at Largs Bay was sold prior to her death and as a consequence, any remaining proceeds of that sale fell into the residue of the estate. There is no evidence before the Court to suggest that, at the time the will was signed by the deceased, any other person had a claim on her bounty or that any child of the deceased was dealt with inappropriately through the terms of the will.
I therefore find that the terms of the propounded will are an accurate and complete copy of the original version of the 2000 will. Accordingly, the Court has evidence of the terms of the deceased’s 2000 will.
Revocation of Pre-Existing Wills
The 2000 will contains a clause which revokes all prior wills and testamentary acts. As I have found that the 2000 will was duly executed, it has the effect of revoking the deceased’s 1999 will and any other pre-existing wills regardless of whether or not the present application is granted. Therefore, if the present application is refused, the deceased’s estate will be distributed in accordance with the intestacy provisions in the Administration and Probate Act 1919 (SA).
Searches for the Will
The deceased’s personal papers and all other places where she may have kept her important documents have been searched. The only will or testamentary paper located through those searches was the 1999 will.
Searches have been conducted at the offices of Australian Executor Trustees. The original 2000 will or a signed copy of it were not located. Further, no other wills or testamentary papers of the deceased were located.
On 5 April 2011, an advertisement was placed in The Advertiser newspaper seeking any person who knew the whereabouts of the 2000 will. This advertisement received no response. Inquiries were made by counsel for the applicant at Bank SA at Semaphore where the deceased had stored a safe custody packet. The packet was withdrawn by the deceased’s son, James, on 29 October 2002. The bank was unable to provide any information as to what was stored in the safe custody packet.
James deposed that he believed that the will was stored in a safe custody packet at the Bank SA branch at Semaphore. Following the deceased’s death, James made inquiries at the bank about the deceased’s safe custody packet. He was informed that the safe custody packet could not be found. Searches were subsequently conducted “through all channels and other branches”, but the safe custody packet was not located. James was later informed that the safe custody packet had been removed by him on 29 October 2002 as he had authority to access the packet. He accepted that his signature appears on the bank’s register sheet. However, James has no recollection of attending at the bank and withdrawing the safe custody packet.
On 4 November 2002, shortly after the withdrawal of the safe custody packet, the deceased moved into a nursing home. A memorandum of transfer in respect of the deceased’s home property at Largs Bay was executed on the same day. The deceased kept papers in a bureau in her home property at Largs Bay. One of the deceased’s daughters and carers, Ingrid, cleaned the house property at Largs Bay before it was sold. She discarded many papers from the bureau. Ingrid informed Frances at the time that there were no important papers in the bureau.
Frances had assumed that the deceased’s will was stored at the safety deposit box at Bank SA at Semaphore. Accordingly, Frances did not engage in any discussions with the deceased as to the location of her will. James also did not discuss the contents of the 2000 will with the deceased and he believes that she did not discuss its contents with any of her other children. However, there is evidence that at some time after the deceased entered the nursing home and when all of her children were present, the deceased “became somewhat melancholy, and said to [her children] that ‘you will all be looked after’”.
Frances deposed that, to the best of her knowledge, the deceased did not have any other safe custody packet or safety deposit box with any bank, nor did she have any dealings with solicitors, the Public Trustee or any other trustee company which would suggest the likelihood of the existence of any other will or testamentary paper.
In my view, thorough searches have been conducted to find the original version of the 2000 will.
Consent to the Application
The deceased’s estate comprises furniture and household effects valued at $800.00, money in bank in South Australia to the value of $14,438.29, a monthly income fund with Perpetual Investment Management Limited in New South Wales valued at $58,768.80 and a refund of an accommodation bond in respect of accommodation at Westminster Village Nursing Home valued at $65,007.66. The liabilities of the estate total $11,921.60. The net value of the deceased’s estate is $127,093.15.
If the application were allowed, under the terms of the 2000 will, the deceased’s estate would be shared equally between her five children. All of them are sui juris. As noted above, in the 2000 will there is a clause which provides Ingrid with an entitlement to use and enjoy the deceased’s home property at Largs Bay. However, that property was sold prior to the deceased’s death and does not form part of her estate.
Given my finding that the will was duly executed and given that the propounded will contains a clause which revokes all prior wills and testamentary acts, if the application were refused, then the deceased’s estate would be distributed in accordance with the intestacy provisions. Therefore, this would involve an equal division of the estate between the deceased’s five children.[16] This is the same outcome as if the estate were to be distributed in accordance with the terms of the propounded will. In any event, Ingrid, Michele, Raymond and Tower Trust, as an executor of the 1999 will, all consent to the 2000 will being admitted to probate.
[16] See sections 72G(1)(c) and 72I(b) of the Administration and Probate Act 1919 (SA).
The Presumption of Revocation
The consideration which I now turn to is the presumption of revocation. The presumption of revocation was described in Welch v Phillips in the following terms:[17]
…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. …
[17] Welch v Phillips (1836) 1 Moo PC 299, 302 cited by Griffiths CJ and O’Connor J in the High Court in McCauley v McCauley (1910) 10 CLR 434, 438, 446.
In the within proceeding, there is little evidence as to the location of the original version of the 2000 will. The deceased did not discuss the location with either of the executors named in the propounded copy of the will. As noted above, James and Frances both deposed that they believed that the will was stored in a safe custody packet at the Bank SA branch at Semaphore. As earlier noted, the packet was withdrawn by James on 29 October 2002. However, the bank register sheet for the deceased’s safe custody packet indicates that prior to the withdrawal on 29 October 2002, the packet was last accessed on 8 September 1999. This was prior to the execution of the 2000 will. Assuming the bank register sheet is a complete record of all withdrawals, lodgements and occasions on which it was accessed, the safe custody packet could not have contained the original version of the deceased’s 2000 will.
In accordance with Tower Trust’s usual practice, the letter of 16 May 2000 enclosing the original 2000 will as signed by the deceased was forwarded to the deceased by Ms Hargraves. It may be accepted in the light of this evidence that it is probable that the deceased received the letter and had possession of the original 2000 will from that time. There is no evidence of the will being in the possession of anyone other than the deceased after it was returned to the deceased enclosed with the letter of 16 May 2000. As noted above, the original will is missing. Accordingly, the presumption of revocation arises.
The presumption of revocation is a presumption of fact which may be rebutted by appropriate evidence.[18] It is the applicant who carries the onus of rebutting the presumption.[19] 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”.[20]
[18] 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].
[19] 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.
[20] Gordon v Beere [1962] NZLR 257, 266.
One factor which is commonly considered when determining whether the presumption of revocation has been rebutted is the character of the testator’s custody over the will.[21] In the present proceeding, consideration of this factor is of little assistance as there is no evidence as to the means by which the deceased stored the 2000 will.
[21] Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993) citing Sugden v Lord St Leonards (1876) LR 1 PD 154; Allan v Morrison [1900] AC 604; McCauley v McCauley (1910) 10 CLR 434.
Another factor which is commonly considered is whether the will makes a careful and complete disposition of the testator’s property. Campbell J in Cahill v Rhodes, drawing on the earlier decisions in Sugden v Lord St Leonards[22] and Finch v Finch,[23] relevantly observed:[24]
What Sugden v Lord St Leonards, and Finch v Finch, show is that if a testator has made a Will which makes a careful and complete disposition of his property, and an examination of the circumstances relevant to the Deceased's testamentary intentions between the time of the making of that Will and the time of his death does not reveal anything which shows that the testator had any reason to revoke the Will by destroying it, the strength of the presumption is weakened to such an extent that it is overcome. This is no more than a particular application of how the factual presumption can be overcome by circumstantial evidence which shows, on the balance of probabilities, that, even though the Will is missing at the testator's death, it is more likely than not that the reason for it being missing is something other than that the testator destroyed it with the intention of revoking it.
[22] Sugden v Lord St Leonards (1876) LR 1 PD 154.
[23] Finch v Finch (1867) LR 1 P & D 371.
[24] Cahill v Rhodes [2002] NSWSC 561, [68]; see also, Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993).
As mentioned earlier, the terms of the propounded will are quite simple. The residuary estate is to be divided equally between the five children. However, the existence of the clause providing Ingrid with the use and enjoyment of the deceased’s property at Largs Bay demonstrates that the deceased took some care in considering the terms of her will. However, after 4 November 2002, this provision was no longer relevant as the property at Largs Bay had been sold.
The 1999 will is in similar terms to the propounded will with a few differences. The executors in the 1999 will were Tower Trust and James, rather than Frances and James. The 1999 will contained a clause which provided to Ingrid all of the deceased’s “watches trinkets jewellery and other articles of personal use and all [of the deceased’s] household furniture and effects (excluding any motor car)”. This did not appear in the 2000 will. The 1999 will also provided Ingrid with the use and enjoyment of the deceased’s home property for Ingrid’s life, rather than for a period of up to 12 months. Further, although the residuary of the estate was divided between the deceased’s five children in both wills, in the 1999 will, in the event that a child of the deceased had predeceased, the issue of that child would receive their parent’s share.
The deceased’s history of executing wills in 1999 and 2000 suggests that she was prepared to vary her will as circumstances changed. No explanation has been offered for the changes to her will. The evidence establishes a further material change after the execution of the 2000 will. The deceased moved to a nursing home and her home property at Largs Bay was sold. As a consequence, Ingrid’s entitlement to use the property for up to 12 months after the deceased’s death was extinguished. This might provide a possible explanation for the deceased not wishing to have her estate administered in accordance with the terms of the 2000 will.
The changes between the 1999 will and the 2000 will are perplexing. As noted above, no explanation for these changes has been proffered. The 2000 will is simpler, but it is significant that any reference to a gift over to grandchildren has been removed. In these circumstances, in my view, it is not possible to conclude that there was a careful and complete disposition of the deceased’s property in the propounded will which is sufficient, in itself, to weaken the presumption of revocation to such an extent that it is overcome.
One possible explanation for the missing will is that it was inadvertently thrown out by Ingrid when she discarded many papers from the bureau while cleaning up the deceased’s home property at Largs Bay. However, it is worth noting that Ingrid informed Frances at the time that there were no important papers in the bureau.
Counsel for the applicant sought to rebut the presumption of revocation by demonstrating that the deceased was not of sound mind at the time that the will was lost or destroyed. The relevant legal principle is set out in the head note to Sir Wilde’s decision in Sprigge v Sprigge:[25]
The presumption that a will which was in a testator's custody up to the time of his death, and cannot be found after his death, was destroyed by him animo revocandi, does not apply to a case where the testator became insane after the execution, and continued insane until his death. In such a case the burden of shewing that the will was destroyed whilst the testator was of sound mind lies on the party setting up the revocation, and in the absence of evidence as to the date of the destruction, the contents of the will are entitled to probate.
[25] Sprigge v Sprigge (1868) LR 1 P&D 608, 608.
In particular, Sir Wilde described the principle in the following terms:[26]
… The short proposition is, that the burden of shewing that the revocation was done not after the testator became insane, but when he was of sound mind, is cast on those who set up the revocation. In this case there was no evidence to shew when it was done. …
[26] Sprigge v Sprigge (1868) LR 1 P&D 608, 610.
To establish whether or not the deceased was of sound mind at the time that the will was lost, evidence was provided by the deceased’s general practitioner, John Richard Hayton. These inquiries have raised the issue of whether the deceased had testamentary capacity in May 2000 when she executed the will. I propose to turn to the issue of testamentary capacity now before reaching any conclusions in respect of the presumption of revocation.
Frances gave evidence regarding the deceased’s health in the following terms:
In the year 2002, the deceased was assessed as requiring nursing home care by an Aged Care Assessment Team. She was diabetic and not looking after herself, not eating well, not dressing or cleaning herself and not taking her medication which caused her to have small strokes. She became very forgetful and confused. She also suffered with persistent urinary tract infections. Late in the year 2002, she was admitted firstly to the Regency Green Nursing Home at Regency Park and then the said Westminster Village where she began a course of supervised medication. She then showed considerable improvement. She became more lucid mentally and there was some improvement in her confusion. Her unit at Largs Bay was sold in order to raise the funds for an accommodation bond.
It appears that it was these comments which provided a stimulus for counsel for the applicant to write to the deceased’s general practitioner.
Initially, Dr Hayton provided an opinion from his memory of the deceased as he did not have access to his medical notes. He recalled that the deceased suffered from hypertension, Type 2 diabetes and chronic obstructive airways disease with asthma and was not always fully compliant with medical advice. Dr Hayton made the following remarks in respect of the deceased’s capacity:
At least, whilst she was in Westminster Village, and until shortly before her death, she seemed to be alert and interacted appropriately with medical and nursing staff. I suspect, without ever feeling the need to test it, that she at this stage she had Testamentary Capacity, although in the years prior to her admission to care, she may not have, and may not have had the capacity to understand that if she destroyed a will, she was revoking same. It is possible that the ACAT might have performed a mental state evaluation at this time and reported on their findings. I leave it to you to ponder why, if she made a will and if she destroyed it, both whilst lacking Testamentary Capacity, and subsequently recovered this Capacity, she did not then make another will.
Dr Hayton was subsequently provided with a copy of the deceased’s medical notes from the Lakes Clinic. His subsequent letter to counsel for the applicant relevantly provides:
… It would appear that Mrs Gibbs came under my care in late August 2001 from Dr RKSharma. I note that she had a Psychiatry admission to The Repatriation General Hospital from 18/4/01-17/5/01, where she had a CT head scan showing age related cerebral atrophy plus chronic small vessel ischaemic change with superimposed lacunar infarcts in the deep white matter. I quote the then Psychiatry Registrar, Dr Iris Minkiewicz: “despite her CT head abnormalilty she seemed cognitively intact with a Mini Mental score of 28/30 on discharge”. My notes first record a diagnosis of depression on 29/4/02. Mrs Gibbs had 3 Psychiatry Outpatient visits between March and May 2002, and on discharge from that clinic, Psychiatry Registrar Dr Georgina Chen wrote “[Mrs Gibbs] feels that she is mentally well and that her mental state is stable ….. [and] feels that [the antidepressant started 6 weeks prior] is helping her”. I further note that she suffered recurrent episodes of urinary tract infections during one of which she had a brief episode of delirium.
My conclusions from the above are that she was probably not suffering dementia or major mental impairment during the time she was under my care and at least subsequent to May 2001.
The above evidence does not address the deceased’s testamentary capacity in May 2000 when she executed the will. Frances’ evidence raises some doubt over the deceased’s capacity in 2002 prior to her admission to nursing care. However, there is no suggestion that the deceased’s confusion and other unusual behaviour extended back to May 2000. In any event, Dr Hayton’s evidence is supportive of the deceased having testamentary capacity from May 2001. This suggests that any concern over the deceased’s testamentary capacity in the period prior to her admission to nursing care in late 2002 was not behaviour which had been ongoing and which may have been occurring in May 2000. I am therefore of the view that the deceased had testamentary capacity at the time that she executed the will in May 2000.
It is appropriate to now address counsel for the applicant’s contention that the deceased was of unsound mind at the time that the 2000 will was lost or destroyed. Counsel drew the Court’s attention to the earlier referred to evidence of Frances. No medical evidence supported this contention. The evidence of Dr Hayton, not only his own views but also his reference to the views of other medical advisors, establishes on balance that the deceased had testamentary capacity at all relevant times. In particular, Dr Hayton referred to the records of the Psychiatric Registrar at the Repatriation General Hospital in 2001 and 2002, informing his conclusion that, at all relevant times, the deceased was probably not suffering dementia or any major mental impairment. I therefore reject counsel’s contention.
I conclude that the presumption of revocation has not been rebutted. Accordingly, I find that the 2000 will is presumed to have been destroyed by the deceased.
Conclusion
The application for admission of the propounded will to probate is refused. As I have found that the 2000 will was duly executed and contained a revocation clause, the deceased’s 1999 will has been revoked. Therefore, the deceased’s estate is to be distributed in accordance with the intestacy provisions in the Administration and Probate Act.
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