In the Estate of ATHENA YIOSSIS - [2011] SASC 99

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of ATHENA YIOSSIS
[2011] SASC 99
Judgment of The Honourable Justice Gray
21 June 2011
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - REVOCATION - METHODS OF REVOCATION - DESTRUCTION OR MUTILATION, OR STRIKING OUT PORTIONS - PRESUMPTION OF DESTRUCTION OF LOST WILL ANIMO REVOCANDI
Application for an order that probate of the deceased's will, as contained in a copy, be granted to two of the deceased's children - the deceased's will was executed in her home in August 1995 - the deceased retained the original will - the deceased died in February 1997 - the deceased's original will has not been found, but a copy has been located - where the deceased's third husband is believed to be dead, but proof of his death has not been obtained - whether consent of the deceased's third husband to the application is required - whether the presumption of revocation arises and, if so, whether it has been rebutted.
Held: Application granted - in the circumstances, it was not necessary to obtain consent to the application from the deceased's third husband - the presumption of revocation arises, but it has been rebutted - probate of the deceased's will, as contained in a copy, is granted to two of the deceased's children limited until the original will or a more authentic copy is brought into and left in the Probate Registry of this Court.
Probate Rules 2004 (SA) r 68 and r 77; Administration and Probate Act 1919 (SA) Pt 3A, referred to.
In the Estate of Engelhardt Deceased [2010] SASC 196; In the Estate of Roediger Deceased [1967] SASR 118; In the Estate of Vauk (1986) 41 SASR 242; In the Estate of Gerard Deceased (2007) 251 LSJS 176; Cahill v Rhodes [2002] NSWSC 561; Re Molloy [1969] 1 NSWR 400; Allan v Morrison [1900] AC 604; Gair v Bowers (1909) 9 CLR 510; Curley v Duff (1985) 2 NSWLR 716; 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 (1929) 2 Hag Ecc 266; Sugden v Lord St Leonards (1876) LR 1 PD 154; Finch v Finch (1867) LR 1 P & D 371; Gordon v Beere [1962] NZLR 257, considered.

In the Estate of ATHENA YIOSSIS
[2011] SASC 99
Testamentary Causes Jurisdiction
GRAY J:
Introduction

This is an application by summons for an order that probate of the last will and testament of Athena Yiossis,[1] the deceased, as contained in a copy, be granted to the applicant, Christine Verrier, and her brother, Vinay Mohan Sikand, that grant being limited until the original will or a more authentic copy of it is brought into and left in the Probate Registry of this Court.
[1] Otherwise known as Athena Lily Yiossis.
The application was supported by affidavits from multiple deponents. In making the findings recorded in these reasons, I have acted on the affidavit evidence.
The Facts
The deceased died in North Adelaide on 20 February 1997. She was survived by her three children: the applicant, Vinay and Rakesh Kumar Sikand.
On 10 August 1995, the deceased executed a will in her home at 27 Wilpena Terrace, Kilkenny, that will being witnessed by Richard Gregory Eckermann and John Leslie Verrier. The will was prepared by a legal practitioner, Mr Eckermann. He deposed to the due execution of the will. Mr Eckermann further deposed that the deceased retained the original will and that Mr Eckermann himself retained a marked up copy of the will. The applicant gave evidence that the deceased was orderly with her paperwork and documents and that the applicant believed that the deceased had filed the will at her residence. Vinay too deposed that he believed that the deceased kept the original will at her residence.
A thorough search of the deceased’s property and personal items has been conducted and the original will has not been located. Advertisements placed in The Advertiser newspaper and the Law Society of South Australia Bulletin, seeking anyone with knowledge as to the whereabouts of the deceased’s will, have received no response. However, a copy of the will has been located. Mr Eckermann, the applicant and Vinay deposed that that copy will accurately reflects the contents of the original will executed by the deceased.
In the will, the deceased appointed Mr Eckermann, the applicant and Vinay as the executors and trustees of the will. However, Mr Eckermann has renounced all his right and title to probate and execution of the will. The deceased’s three children are the beneficiaries under the will.[2] The deceased left her furniture and household effects to Rakesh and provided him with the right to use, occupy and enjoy her home property until his death. She also provided the trustees with the power, to be exercised at their absolute discretion, to sell the deceased’s home property upon request by Rakesh and to use the money to purchase an alternative residence for him. Upon Rakesh’s death, the home property is to form part of the residue of the estate. The residue of the estate is to be divided equally between Rakesh, the applicant and Vinay.
[2] Provision was made for grandchildren in the event any of the deceased’s children predeceased her. However, as mentioned, the deceased was survived by all three of her children.
At the time of execution of the will, the deceased owned two house properties - one at Wilpena Terrace, Kilkenny and the other at Tarcowie Street, Kilkenny. Shortly after executing the will, the deceased sold and moved from the Wilpena Terrace property to the Tarcowie Street property. At the time of her death, the deceased’s only asset of significance was the Tarcowie Street property which has been valued at $370,000.00 by the Valuer-General.The estate has no liabilities as the deceased arranged a pre-paid funeral.
The present application was brought by the applicant after she learned in 2006 that the Tarcowie Street property was still in the name of the deceased. It is apparent that no steps had been taken to administer the estate of the deceased before this time.
Rakesh has suffered from autism since birth and is not sui juris. However, the applicant contends that the terms of the will significantly benefit Rakesh as they provide for a life interest in the deceased’s home property. Vinay and the applicant herself are adversely affected by the application because, if the deceased died intestate, their interest would not be subject to the rights conferred by the will on Rakesh. Vinay has consented to the application.
The other person who is potentially adversely affected by the application is the deceased’s third husband, Charalambos Yiossis. The deceased married Mr Yiossis on 6 June 1976 and they separated in about 1984, approximately 13 years prior to the death of the deceased. If Mr Yiossis survived the deceased, in the event of intestacy, he would have been entitled to a significant portion of the deceased’s estate.[3] However, the applicant and Vinay deposed that Mr Yiossis returned to reside in Greece after separation from the deceased and they believe that he has since died. The applicant has been unable to obtain proof of his death. A solicitor was appointed to represent Mr Yiossis in the present proceeding.
[3] See Part 3A of the Administration and Probate Act 1919 (SA).
On 2 February 2011, the Registrar of Probates, pursuant to rule 77 of the Probate Rules 2004 (SA), referred the summons to me for consideration.
The Application
The summons was brought pursuant to rule 68 of the Probate Rules, which relevantly provides:
68.01An 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.
…
68.02The 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.
The approach to be taken to applications for admission of a copy will into probate where the original will cannot be found was recently addressed by Sulan J in In the Estate of Engelhardt Deceased.[4] There, his Honour observed:[5]
Before the court will grant an application of this nature, the court must be satisfied that an original Will existed and was duly executed, that the original Will has been lost, that sufficient efforts have been made to find the original Will, that the copy Will is an accurate copy, that all persons prejudiced, if the application is granted, have consented and are sui juris, and that the copy document sought to be admitted to probate is a complete copy of the original document.
[4] In the Estate of Engelhardt Deceased [2010] SASC 196, [20] citing In the Estate of Roediger Deceased [1967] SASR 118.
[5] In the Estate of Engelhardt Deceased [2010] SASC 196, [20] citing In the Estate of Roediger Deceased [1967] SASR 118.
In the present proceeding, I am satisfied that all of these requirements have been met, save for the requirement that “all persons prejudiced, if the application is granted, have consented and are sui juris”.[6] It is evident from the terms of rule 68 that that requirement can be dispensed with if “it is just and expedient to do so”. Rakesh is not sui juris and accordingly, cannot consent to the application. However, he is not prejudiced by the application. Mr Yiossis has not consented and proof of his death has not been obtained. However, I am satisfied that it is just and expedient to dispense with the requirement for Mr Yiossis’s consent due to the combination of the following factors upon which reliance was placed by the applicant:
-The deceased’s will was executed in 1995, approximately 11 years after her separation from Mr Yiossis;
-Mr Yiossis would now be aged 83 years;
-No record of Mr Yiossis has been located through searches of the electoral roll in each State and Territory in Australia;
-Since the date of the death of the deceased in 1997, Mr Yiossis has not made contact or enquires regarding the estate of the deceased; and
-Rakesh, as an autistic son, has a significant moral claim to the estate of the deceased in advance of Mr Yiossis.
[6] In the Estate of Engelhardt Deceased [2010] SASC 196, [20].
In the Estate of Roediger Deceased,[7] Mitchell J was similarly faced with an application where not all persons prejudiced were sui juris and had consented. On this topic, her Honour observed:[8]
The only requirement which has not been met, and cannot be met in this case, is that all persons who could possibly be prejudiced have consented and that they are sui juris. However, it has, in this Court, been the practice to grant the motion in a case of this nature where there is no doubt that the document sought to be proved is a copy of the original will. I refer particularly to In re Guthrie[9] and In re Elliott.[10]
It appears to me that it would be a needless expense to put the executor to proof in solemn form of this will when I have before me all the evidence that would be required to be tendered for proof in solemn form, and no counsel has suggested that it is desirable to cross-examine any of the deponents upon his or her affidavit.
[7]    In the Estate of Roediger Deceased [1967] SASR 118.
[8]    In the Estate of Roediger Deceased [1967] SASR 118, 120.
[9]    In re Guthrie (Unreported, Supreme Court of South Australia, No. 726 of 1946).
[10] In re Elliott (Unreported, Supreme Court of South Australia, No. 566 of 1959).
These conclusions have since been cited with approval in this Court[11] and I agree with them.
[11] See eg, In the Estate of Vauk (1986) 41 SASR 242, 249; see also, In the Estate of Gerard Deceased (2007) 251 LSJS 176, [30] where I previously considered these observations.
Before concluding whether or not to make the order sought, it is also necessary for me to consider the principles for obtaining probate of a lost will which were described in the following terms by Campbell J in Cahill v Rhodes:[12]
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.
[12] Cahill v Rhodes [2002] NSWSC 561, [55], there his Honour was articulating the relevant requirements in light of the introduction of section 18A of the Wills, Probate and Administration Act 1898 (NSW), the New South Wales equivalent to section 12(2) of the Wills Act 1936 (SA) which deals with informal wills, adding to the often quoted earlier authorities with respect to lost wills, including Re Molloy [1969] 1 NSWR 400, Allan v Morrison [1900] AC 604, Gair v Bowers (1909) 9 CLR 510 and Curley v Duff (1985) 2 NSWLR 716.
In the present proceeding, there is evidence which indicates that a will was made by the deceased on 10 August 1995, that it revoked any prior wills and that it was duly executed. There is also evidence of the terms of the will. Accordingly, the remaining issue for determination relates to the presumption of revocation.
The presumption of revocation was described by Lord Wensleydale in Welch v Phillips in the following terms:[13]
…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. …
That description was approved by the High Court in McCauley v McCauley.[14] The presumption of revocation arises on the facts of the present proceeding. However, the presumption of revocation is a presumption of fact, which may be rebutted by appropriate evidence.[15] The applicant in the present proceeding has the onus of rebutting the presumption.[16]
[13] Welch v Phillips (1836) 1 Moo PC 299, 302.
[14] McCauley v McCauley (1910) 10 CLR 434, 438, 446 (Griffiths CJ and O’Connor J).
[15] 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 (1929) 2 Hag Ecc 266; Welch v Phillips (1836) 1 Moo PC 299; In the Estate of Gerard Deceased (2007) 251 LSJS 176, [32].
[16] 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; In the Will of Molly [1969] 1 NSWR 400.
The strength of the presumption of revocation is said to depend on the character of the testator’s custody over the lost instrument.[17] The meaning of the “character of the testator’s custody” refers to facts concerning the physical arrangements the testator has for security of the instrument; including, whether the instrument is kept in a locked place, the arrangement with respect to keys to access the instrument, whether other people know where the instrument is located and the extent of care and protection over the instrument exhibited by the testator.[18]
[17] Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993); Sugden v Lord St Leonards (1876) LR 1 PD 154; Allan v Morrison [1900] AC 604; McCauley v McCauley (1910) 10 CLR 434, 438.
[18] See, Cahill v Rhodes [2002] NSWSC 561, [59].
Further, where the will makes a careful and complete disposition of the testator’s property and there are no other circumstances to point to probable destruction – probable destruction being on the balance of probabilities[19] – the presumption of revocation is so slight that it may be said not to exist.[20] On this topic, Campbell J made the following observations in Cahill v Rhodes:[21]
What Sugden v Lord St Leonards,[22] and Finch v Finch,[23] 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.
[Footnotes added.]
[19] Cahill v Rhodes [2002] NSWSC 561, [68].
[20] Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993); Sugden v Lord St Leonards (1876) LR 1 PD 154; Finch v Finch (1867) LR 1 P & D 371.
[21] Cahill v Rhodes [2002] NSWSC 561, [68].
[22] Sugden v Lord St Leonards (1876) LR 1 PD 154.
[23] Finch v Finch (1867) LR 1 P & D 371.
The following remarks of McGregor J in Gordon v Beere in relation to a court’s consideration of the facts when determining if the presumption has been rebutted are also pertinent:[24]
…[T]he proper approach is not to keep facts raising the presumption and facts rebutting the presumption separate, but to consider the whole of the facts together, and draw what inference should be drawn from the totality of the evidence. …
[24] Gordon v Beere [1962] NZLR 257, 266.
In the present proceeding, from the death of the deceased in 1997 until 2006 when the applicant and her husband returned to reside permanently with Rakesh, Rakesh lived alone in the deceased’s Tarcowie Street property with assistance from Vinay and friends. The applicant and Vinay both deposed that they believe, at some time between 1997 and 2006, Rakesh disposed of the will inadvertently. The applicant deposed that a considerable amount of the deceased’s well ordered documents and files have gone missing, including the duplicate certificate of title of the Tarcowie property. Further, the applicant deposed that Rakesh has a tendency to throw out or destroy documents, papers and boxes without realising their importance.
In relation to the deceased’s will, the applicant and Vinay both deposed that the deceased’s priority was to ensure that Rakesh had a roof over his head and somewhere safe to live, but she did not want to give or allow Rakesh to have any great control over money or property that she might own at her death. The applicant and Vinay also deposed that they had several conversations with the deceased, prior to the deceased becoming ill with cancer and afterwards, in which the deceased indicated that her main concern was for the continued welfare of Rakesh. As a result of these conversations, the applicant deposed that she believes that the deceased did not change her mind about the content of her will between when she executed the will and the date of her death. Mr Eckermann who was a close friend of the deceased has a similar belief. He drafted the deceased’s will in August 1995. Soon after, the deceased was diagnosed with terminal cancer. She died in February 1997. Mr Eckermann deposed that he believes that if the deceased decided to vary, revoke or renew her will, she would have asked him to prepare the variation or new document on her behalf.
Conclusion

I am satisfied that the copy will the subject of this application is a complete and accurate copy of the last will of the deceased and that the original will was duly executed. Further, I am satisfied that following thorough searches, the original will cannot be found. There is evidence of the terms of the will and I am satisfied that it revoked any previous wills. Further, I have dispensed with the requirement that all persons prejudiced are to consent to the application.
I am also of the view that there is sufficiently strong evidence to rebut the presumption of revocation. It is evident from the terms of the will that it is a careful and complete disposition of the deceased’s property. The evidence allows the conclusion that the deceased was content with the terms of her will and that it is improbable that she destroyed the will with the intention of revoking it. It is unlikely, particularly in light of the deceased’s desire to provide for Rakesh, that she wished to die intestate. This is of particular note as the deceased was diagnosed with cancer shortly after executing her will and had knowledge of her imminent death. In these circumstances, it is unlikely that she destroyed her will without making a new one.
Further, the evidence establishes that the deceased took care in filing important documents, that important documents other than the original will have gone missing and that Rakesh has a tendency to discard documents. For nearly a decade, Rakesh lived alone in the deceased’s home property where the will was thought to have been kept.
Upon consideration of the evidence as a whole, I am satisfied that there is a higher degree of probability that the will was lost rather than destroyed by the deceased with the intention of revoking it.
I make an order that probate of the will of Athena Yiossis executed on 10 August 1995, as contained in a copy, be granted to Christine Verrier and Vinay Mohan Sikand, limited until the original will or a more authentic copy of it is brought into and left in the Probate Registry of this Court.