In the Estate of Ethel Horne (Deceased)
[2023] TASSC 40
•2 November 2023
[2023] TASSC 40
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | In the Estate of Ethel Horne (Deceased) [2023] TASSC 40 |
| PARTIES: | HORNE, Ian Francis and HORNE, Rodney James |
| FILE NO: | 1775/2023 |
| DELIVERED ON: | 2 November 2023 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 1 November 2023 |
| JUDGMENT OF: | Pearce J |
| CATCHWORDS: |
Succession – Making of a will – Testamentary instruments – When lost, mislaid, destroyed or not available – Generally – Permitting the admission to proof of a copy of a lost will.
Probate Rules 2017, r 54
Aust Dig Succession [1043]
REPRESENTATION:
Counsel:
Applicants: M Flanagan
Solicitors:
Applicants: Murdoch Clarke
| Judgment Number: | [2023] TASSC 40 |
| Number of paragraphs: | 17 |
Serial No 40/2023 File No 1775/2023
IN THE ESTATE OF ETHEL HORNE (DECEASED)
| REASONS FOR JUDGMENT | Pearce J 2 November 2023 |
1 Ethel May Horne, to whom I will refer as the testatrix, died on 25 July 1989 aged 67 or 68. She had made a will dated 22 June 1989 appointing two of her sons, Ian Horne and Rodney Horne, as executors and trustees. For reasons which will be explained, they did not look for the will until many years later, by which time it could not be found. They apply for an order pursuant to the Probate Rules 2017, r 54, permitting the admission to proof of a photocopy of the will. For the following reasons that order should be made.
2 In support of the application I read affidavits from both applicants, from Luke Golding, the applicants' current legal practitioner, and from another legal practitioner, Noel Ware. During her life the testatrix had 13 children. At the time of her death she owned the house at 137 Bligh Street, Warrane. Her will dated 22 June 1989, which I will refer to as the 1989 will, was drafted by Mr Ware. His current firm is Ware and Partners, but in 1989 he was a partner of the firm Brown Ware and Hay. In the 1989 will the testatrix revoked all former wills. She devised the Bligh Street property to her trustees to:
"permit such of my children as shall remain unmarried to have the use and occupation and enjoyment thereof during the life of the longest surviving unmarried child … and I DIRECT that on the death or marriage of the last person entitled to occupy my house under the preceding provisions of this clause of my will the said residence or the proceeds of sale thereof shall be held UPON TRUST for such of my children as shall then be living and if more than one as tenants in common in equal shares."
3 The 1989 will provided that the residue of the testatrix's estate be sold and held upon trust "for such of my children as shall survive me and if more than one as tenants in common in equal shares." I have no evidence of what residuary estate there might have been but it is to be inferred that there was little, if anything, in the estate other than the house.
4 Both applicants had a copy of the 1989 will. According to Rodney Horne, his mother spoke to him about its terms. Both applicants knew that the terms of the will permitted them or their siblings to occupy the house for their lives provided they did not marry. After the testatrix died, some of her children did in fact continue to live in the house. As a result, the applicants perceived "no urgent need to sell the estate property." In the period following their mother's death neither of them looked for the original will or applied for probate. Thirty three years passed before in 2022, Geoffrey Horne, the last of the testatrix's children to live at Bligh Street, died. Only then did the applicants began to think about selling the house. Mr Golding's firm, Murdoch Clarke, was engaged to provide advice. The applicants were quickly made aware of the need to find the original of the will, so they began to look for it. Both said that their mother was an organised person, and would not have destroyed the original will had she held it before her death. However the will was not, when it was looked for, amongst her personal items or with other important documents.
5 Rodney Horne made enquiries at Mr Ware's firm. In evidence is a letter from Brown Ware and Hay, signed by Mr Ware, dated 7 August 1989. The letter was addressed to Rodney Horne and three of his siblings. It referred to the death of the testatrix and stated, in part:
"We enclose a copy of the will made by your mother wherein you will see she appoints
her sons, Ian and Rodney, as Trustees of her Will."2 No 40/2023
6 The terms of that letter strongly support the inference that the original of the 1989 will was then held at Brown Ware and Hay. Rodney Horne also had a copy of an earlier will made on 16 March 1984, but that will appointed him and his step-brother Byron Horne as executors and trustees. Mr Ware sent another letter to the applicants dated 22 September 1989 enclosing a copy of a funeral account, from which it is to be inferred that his firm had some other role in the preliminary administration of the estate, but there is no evidence that Mr Ware's firm was involved after then.
7 When Mr Ware was contacted in 2022, the certificate of title to the Bligh Street property was located at his firm, but no will was found. He looked at his firm's data base but it did not extend back beyond 2006. None of the other records at his firm referred to a will of the testatrix. A physical search was conducted without success. According to Mr Ware, in 1989, the offices of Brown Ware and Hay were at 148 Collins Street, and wills were stored in a compactus in alphabetised sleeves in ring binders. Each day a clerk at the firm read the death notices in the newspaper. If a will was held for a deceased person the firm would write to members of the family or the executors, sending a copy of the will. That is also evidence which supports the inference that the original of the testatrix's will was held in the compactus at Brown Ware and Hay at the date of her death, and that a copy of the 1989 will was sent.
8 Almost ten years later, the firm moved offices. The compactus was moved to the new premises, but the contents had to be packed and re-packed. On various occasions between 1989 and 2022 members of the firm left the partnership and took with them some of the original wills, but the testatrix's will is not recorded as one of those which was taken. According to Mr Ware, it would have been unlikely that the 1989 will would have been removed when he had drawn the will. One of the former partners searched but could not find the will in the documents held by him. Mr Ware had no other information which might shed light on the current whereabouts of the original will.
9 Mr Golding placed an advertisement in the newsletter of the Law Society of Tasmania asking other firms to check for the testatrix's will. He made enquiries of the trustee company TPT Wealth and of the Public Trustee but all to no avail.
10 The principles to be applied to applications such as this were summarised in this State by Tennent J in Garland v Dillon [2005] TASSC 111 at [3]. They have been very recently re-stated in other jurisdictions: see for example In the Estate of Elizabeth Seabrooke (Deceased) [2023] SASC 122 per Stanley J at [11]-[20], In the Estate of Muscat [2023] NTSC 3 per Burns J and Re Hay (dec'd) [2023] QSC 146 at [26]. In Garland v Dillon Tennent J applied the summary derived from the judgment of Campbell J in Cahill v Rhodes [2002] NSWSC 561 at [55]. A similar summary was made by Gray J in In Re Estate of Hall (Deceased) [2011] SASC 117; 120 SASR 1 as follows. It must be established that:
"● that the original will existed; •
that the original will was duly executed; or, if the original will did not fulfil the formalities required by legislation, that it satisfies the legislative requirements allowing it, as an informal will, to be admitted to probate;
• that there is evidence of the terms of the original will; • that the copy will is an accurate and complete copy of the original will; •
that thorough searches have been conducted to find the original will, including publishing advertisements regarding the missing original will;
• that the original will revoked all pre-existing wills; •
that the circumstances surrounding the absence of the original will are adequately explained;
3 No 40/2023
• that all persons prejudiced by the application, if it is granted, have consented to the application and are sui juris; and • that the presumption of revocation does not arise or has been rebutted." [Footnoted citations omitted]
11 The Probate Rules, r 54(2)(c) requires that there must be evidence, in the case of a copy of a will, "of the will's existence after the death of the testator or, if there is no such evidence, the facts on which the applicant replies to rebut the presumption that the will has been revoked by destruction."
12 I am satisfied that there is clear and convincing evidence of the existence of the 1989 will and that it was duly executed. The copy in evidence is, on its face, duly executed. The evidence supports the inference that it was executed in Mr Ware's office thus making due execution very likely. I have referred to the evidence of the original will. The evidence establishes that what is now produced to the Court is an accurate and complete copy. It is confined to a single page and the attestation of the testatrix and the witnesses appears at the foot of that single page. I would add that there is nothing to give rise to any doubt about the testamentary capacity of the testatrix or to suggest that she did not know of or approve the contents. I am satisfied that the original will has been thoroughly searched for. According to its terms, the 1989 will expressly revokes all previous wills. The circumstances surrounding the absence of the original will have been explained and are referred to in these reasons.
13 I next address the presumption of revocation. In my view the presumption does not arise. That is so because the evidence persuades me of the existence of the original will after the testatrix's death. The presumption was described in Welch v Phillips [1836] 12 ER 828 at 829:
"... 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. ..."
14 In In the Estate of Gibbs [2012] SASC 230; 115 SASR 182 Gray J said at 190:
"The presumption of revocation is a presumption of fact which may be rebutted by appropriate evidence. It is the applicant who carries the onus of rebutting the presumption. 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'." [Footnoted citations omitted]
15 The will was made on 22 June 1989. The testatrix died on 25 July 1989. I am satisfied that, during the short period between the making of the will and the death of the testatrix, the original will was not in the possession of the testatrix, but, rather, held at the offices of Brown Ware and Hay. I find that a copy of the 1989 will would not have been sent with Mr Ware's letter of 7 August 1989 unless the original had been found in the strong room at his firm. A copy of a copy would not have been sent. Even if the presumption did arise, I am satisfied it has been rebutted by the evidence. I would readily infer that there was no revocation by destruction. The will was made only a short time before the testatrix's death. Apart from a change to one of the executors it was in precisely the same terms as the earlier will she made in 1984, which I am satisfied, from its form and appearance, was also drafted by Mr Ware or someone else at his firm (although there is no evidence that the original of that will has been found either). The testatrix had informed the applicants of the contents of the 1989 will and of her intentions about how it was to be administered. There is no evidence from which it could be inferred that she might have changed her mind and I find that to be inherently unlikely in the circumstances. I find that the will was not destroyed but, rather, lost by human error after the testatrix's death.
16 Finally, there is no "consent" from any other beneficiary or potential beneficiary of the estate, other than the applicants, to the making of the order applied for. There is no contradicting party. On 16 August 2023 Holt AsJ set down the application for hearing without the need for any "beneficiary" to be served. With respect to his Honour, the order was an appropriate one. Proof of the copy will should be
4 No 40/2023
permitted despite the absence of a contradictor because no person will be prejudiced by such an order. The testatrix's spouse predeceased her. There is no suggestion of any testamentary instrument other than the 1989 will and the 1984 will. Both provided that the estate of the testatrix was to be divided equally between such of her children as survive her. Both wills also provided that the share of any child who died during the life of the testatrix shall be divided equally between any issue of that deceased child. The result would have been the same not only under both wills but also if the testatrix had died intestate: Administration and Probate Act 1935, ss 44(5) and 46(1)(a), which apply by operation of s 46 of the Intestacy Act 2010 because the testatrix died before the commencement of that Act.
17 For those reasons:
1 I permit the admission to proof of the copy of the will dated 22 June 1989 of Ethel May Horne, late of Warrane in Tasmania, who died on 25 July 1989 and which is Annexure "B" to the affidavit of Rodney James Horne affirmed 27 June 2023, until the original can be brought into court; 2 I direct that the copy will, being Annexure "B" to the affidavit of Rodney James Horne, affirmed 27 June 2023, be uplifted from the affidavit and lodged in the Probate Registry; 3 I order that the applicants' costs of the originating application filed 8 September 2023 be taxed as between solicitor and client and paid from the estate of the late Ethel May Horne.
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