In the Estate of FRANCES PONIKVAR (DECEASED)
[2016] SASC 95
•29 June 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Estate of FRANCES PONIKVAR (DECEASED)
[2016] SASC 95
Judgment of The Honourable Justice Stanley
29 June 2016
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - LIMITED, SPECIAL AND CONDITIONAL GRANTS OF PROBATE AND ADMINISTRATION - PROBATE OF LOST WILL
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 - REBUTTAL OF PRESUMPTION
This is an application for a grant of probate of a copy of a will made by Frances Ponikvar (the deceased) dated 16 February 2007.
The deceased) was born in Slovenia on 9 March 1924. She died in South Australia on 27 June 2010 aged 86 years. She died a spinster without issue.
The deceased had seven siblings, all of whom predeceased her, and 12 nieces and nephews who survived her. Of those 12 nieces and nephews, four of them were Australian residents.
At trial, there was evidence of the deceased having made two wills. The first on 4 May 1993 and the second on 16 February 2007.
Thorough searches of the deceased’s home have not discovered the original 2007 will.
The sole issue for determination is whether the presumption of revocation has been rebutted. If the Court finds it has been rebutted, then there is no opposition to the court dispensing with the requirement for consent to the grant by all persons who may be prejudiced by the grant.
Held:
1. The presumption of revocation has arisen. The original of the 2007 is presumed to have been destroyed by the deceased unless that presumption is rebutted. (at [50]).
2. The evidence of events that occurred subsequent to the deceased executing the original of the 2007 will does not reveal anything which shows that the deceased 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. The presumption of revocation has been rebutted (at [59]).
3. Probate of a will of Frances Ponikvar late of 17 Murphy Street, Fulham Gardens in the said State, Home Duties, deceased contained in a copy dated the 16th day of February 2007 and referred to at Annexure “A” to the affidavit of Ivan Ponikvar affirmed 22nd May 2015 be granted to the said Ivan Ponikvar of 6 Olympiad Court Golden Grove in the said State, limited until the original will is brought into and left in the Probate Registry of this Court (at 61]).
Probate Rules 2004 (SA) r 68; Probate Rules 2015 (SA) r 69, referred to.
Re Estate of Hall (deceased) (2011) 120 SASR 1; Elton v Public Trustee [2014] SASC 149; McCauley v McCauley (1910) 10 CLR 434; Estate of Yiossis [2011] SASC 99; Cahill v Rhodes [2002] NSWSC 561; In the Estate of Roediger (deceased) [1967] SASR 118; Wesley v Wesley (1998) 71 SASR 1, considered.
In the Estate of FRANCES PONIKVAR (DECEASED)
[2016] SASC 95Testamentary causes jurisdiction
STANLEY J:
Introduction
This is an application for a grant of probate of a copy of a will made by Frances Ponikvar dated 16 February 2007.
The application is made pursuant to r 68 of the Probate Rules 2004 (SA) which was in force at the time the application was filed. Rule 69 of the Probate Rules 2015 (SA) now provides for admission to proof of a copy will where the original is not available. It requires applications for such orders to be supported by an affidavit together with the consent in writing of all persons who may be prejudiced by the grant. Rule 69 further provides for consent to be dispensed with in relation to persons who cannot be found or where it is just and expedient.
The 2015 Probate Rules apply pursuant to r 4 which repeals the 2004 Probate Rules and provides that the 2015 Probate Rules apply to steps taken or required to be taken or matters occurring on or after the commencement date in proceedings that commenced before the commencement date of 1 July 2015.
Frances Ponikvar (the deceased) was born in Slovenia on 9 March 1924. She died in South Australia on 27 June 2010 aged 86 years. She died a spinster without issue.
The deceased had seven siblings, all of whom predeceased her, and 12 nieces and nephews who survived her. Of those 12 nieces and nephews, four of them were Australian residents.
At trial, there was evidence of the deceased having made two wills. The first on 4 May 1993 (“the 1993 will”) and the second on 16 February 2007 (“the 2007 will”).
The 1993 will was in the custody of the Public Trustee. The original of the 2007 will could not be found. A copy of the 2007 will was produced by the deceased’s solicitor, Ms Tanya Ryan, who drafted the 2007 will and witnessed its execution by the deceased.
Upon execution Ms Ryan gave the original 2007 will, together with a letter, to the deceased. This was Ms Ryan’s usual practice. The letter advised the deceased that her will is an important document and should be kept in a safe and secure place such as a safety deposit envelope with a bank, or if it is kept at home, it suggested advising a trusted person of its whereabouts.
Thorough searches of the deceased’s home have not discovered the original 2007 will. The original 2007 will has not been forthcoming in response to notices published in The Advertiser and the Law Society of South Australia’s “In Brief” publication.
The copy of the 2007 will revokes the 1993 will.
The 1993 will appointed the deceased’s “dear friend” Joseph Sever to be her executor and bequeathed one-third of the residual estate to him. The remainder of the residue was bequeathed to Rafko Ponikvar of Para 8, P. Nova Var pri, Rakeku, Republic of Slovenia, Ivan Ponikvar of Wynn Vale in South Australia, Joze Ponikvar of Parafield Gardens in South Australia, Paul Hribar, Janet Hull, Nancy Matz, John Hribar and Joyce Hribar, all of South Lake Shore Boulevard, Euclid, Ohio in the United States, Rafko Ponikvar and Tanja Vrhovec both of Ljubljana, Republic of Slovenia, and Janet Novak and Sandra Novak both of Lockleys in South Australia.
The 2007 will was made following the death of Mr Sever. The copy will appoints Ivan Ponikvar as the deceased’s executor and bequeaths the residue of her estate to be shared equally between Joze Ponikvar, Ivan Ponikvar and Janet Novak.
Since the death of the deceased, Paul Hribar has died. Of the remaining beneficiaries pursuant to the 1993 will, all have consented to a grant of probate in respect of the 2007 copy will except Sandra Novak, Dr Rafko Ponikvar and Paul Hribar. Joyce Hribar Fiebig is the fiduciary of the estate of Paul Hribar. She has given her consent to the application in that capacity.
The evidence establishes that Dr Ravko Ponikvar has been notified of the application. He does not appear to have taken any steps to be represented on the hearing of the application or to be heard.
The deceased’s estate consists of real estate in Fulham Gardens and a bank savings account. The estate has a net value in the vicinity of $436,870.
Sandra Novak opposes the application.
The sole issue for determination is whether the presumption of revocation has been rebutted. If the court finds it has been rebutted, then there is no opposition to the court dispensing with the requirement for consent to the grant by all persons who may be prejudiced by the grant.
Legal principles
Rule 69(2) of the Probate Rules 2015 (SA) requires that an applicant for admission to probate of a copy will adduce evidence as to the due execution of the will, its existence after the death of the testator (or if the will cannot be found at the testator’s death, such evidence as rebuts a presumption of its revocation by the testator) and the accuracy of the copy or other evidence of the contents of the will.
In Re Estate of Hall (deceased),[1] Gray J summarised the principles applicable to the admission of a copy of a missing will to probate as follows:[2]
[1] [2011] SASC 117, (2011) 120 SASR 1.
[2] [2011] SASC 117 at [15], (2011) 120 SASR 1 at 4 – 5.
Missing wills has been the subject of much judicial commentary. The following considerations for admission of a copy of a missing will to probate have been conveniently extracted from that commentary:
· that the original will existed;
· that the original will was duly executed; 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;
· 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;
· the circumstances surrounding the absence of the original will;
· 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.
[citations omitted].
In Elton v Public Trustee,[3] I discussed the legal principles relevant to the court granting probate in respect of a lost will. I said:[4]
[3] [2014] SASC 149.
[4] [2014] SASC 149 at [37] - [45].
It is clear that in certain circumstances a Court will recognise a lost will and admit it to probate… The relevant principles concerning granting probate of a lost will, modified to reflect the changes to the law effected by the equivalent of s 12 of the Wills Act 1936 (SA), were enunciated in Cahill v Rhodes by Campbell J as follows:
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.
While the burden of proof remains the usual civil standard of balance of probabilities, the authorities emphasise the need for clear and convincing evidence of the existence of a lost will.
In The Estate of Ralston Hodgson J said:
... there should be clear and convincing proof similar to that appropriate to other classes of case where the Court is asked to give effect to parol arrangements in circumstances where the law requires, or the parties have chosen, that a particular matter be recorded in some formal way, or where the Court is asked to make a finding concerning a legal transaction by a deceased person.
However, this does not mean that what is required is other than proof on a balance of probabilities. In a case such as this, I believe that what is required is that the party bearing the onus of proof must be sufficiently diligent in calling available evidence, because the Court will not be prepared to act on material which it considers inadequate...
Hodgson J cited as authority for this proposition the High Court’s judgment in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd which is an application of the Briginshaw test. In applying the balance of probabilities standard in considering applications to admit a lost will to probate the Court must be vigilant, being fully cognisant of the dangers of error and fraud and the gravity of the consequences flowing from any finding made. In my view, these considerations apply with particular force where the evidence the Court is asked to act upon is purely oral.
I do not regard anything said subsequently in Gruzdeff v Lough by Hodgson J as detracting from this proposition. While parol evidence may be adduced to prove the contents of a lost will the Court must take particular care in considering whether such evidence leaves it reasonably satisfied “not just as to the existence of the will but as to its contents”.
If the Court is satisfied that the document sought to be propounded as the lost will of the deceased existed, the next issue the Court must consider is whether the document itself, or so much of the document as may be proved, was intended by the deceased to constitute his will. The Court must be satisfied that the document sought to be admitted to probate, or at least so much of the contents of the document as the Court is satisfied has been proved, purports to embody the deceased’s testamentary intentions. That means the deceased intended the document, without more on his part, to take effect as a testamentary disposition of his property upon his death. This is to be decided by reference to the document itself, the circumstances regarding its contents (including such marks or handwriting as may appear on it) and any other relevant circumstances. While each case must depend upon its own facts, the greater the departure from compliance with the formal requirements for the making of a will, the more difficult will it be for the Court to be satisfied that the deceased intended the reconstructed document to be his will.
Next the Court must be satisfied of two related matters: the terms of the testamentary instrument and whether the terms included a provision revoking all previous wills.
If the Court is satisfied of these matters it must then turn to consider the presumption of revocation. This involves two issues: does the presumption arise and, if so, is it rebutted. The presumption was described in Welch v Phillips in the following terms:
... 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. ...
In The Estate of Gibbs Gray J made the following observations regarding the rebuttal of the presumption.
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”.
[Citations omitted].
The High Court has analysed the question in terms which suggests that the presumption is evidential only.[5] The strength of the presumption depends on the character of the testator’s custody over the will. This was explained in In the Estate of Yiossis[6] where Gray J said:[7]
The strength of the presumption of revocation is said to depend on the character of the testator’s custody over the lost instrument.[8] 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.[9]
[5] McCauley v McCauley (1910) 10 CLR 434.
[6] [2011] SASC 99.
[7] [2011] SASC 99 at [20].
[8] 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.
[9] See, Cahill v Rhodes [2002] NSWSC 561 at [59].
Further, where the will makes a careful and complete disposition of a testator’s property and there are no other circumstances that point to probable destruction, the presumption of revocation is so slight that it may be said not to exist. In Cahill v Rhodes[10] Campbell J said:[11]
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.
[Citations omitted].
[10] [2002] NSWSC 561.
[11] [2002] NSWSC 561 at [68].
Evidence
On the hearing of the application I admitted affidavit evidence from Ivan Ponikvar, Joze Ponikvar, Tanya Ryan, Ljudmila Intihar, Rodney Jones and Christina Flourentzou, for the applicant, de bene esse, and an affidavit of Sandra Novak. Mr Ivan Ponikvar and Mr Joze Ponikvar were cross-examined on their affidavits. I admitted those affidavits upon which the applicant sought to rely de bene esse due to the submission of Mr Edmonds-Wilson, counsel for Sandra Novak, that there may be some objection to the basis upon which the affidavit evidence might be put by Mr Ross-Smith, counsel for the applicant. As it transpired, no objection was taken.
Ivan Ponikvar
Ivan Ponikvar gave evidence that he migrated to Australia from Slovenia in 1980. His migration was sponsored by the deceased with whom he resided until about 1988. Thereafter he maintained a close relationship with her and assisted her with various tasks around the house. He said the deceased maintained a close friendship with Joseph Sever who shared the deceased’s residence until his death on 15 January 2007. After Mr Sever’s death the deceased told Mr Ponikvar that she had gone to see a solicitor, Tanya Ryan, to make a new will. She told him that Ms Ryan had prepared a will which she had executed and Ms Ryan had left the original of the will with the deceased at her home.
On the day the deceased died, Mr Ponikvar attended at her house at Fulham Gardens. It was he who discovered her body. Once the deceased’s body had been removed from the house, Mr Ponikvar conducted a search for papers such as the Certificate of Title to the house, insurance papers, Centrelink papers and her will. He conducted the search with his brother Joze Ponikvar and their wives. The Certificate of Title for the property, passports, bank statements, council rates, bills and the like were located. He said those papers were found throughout the house and there was no particular filing system kept by the deceased or any logical collection of those papers. They were unable to locate the original 2007 will or any other will.
He described how the deceased retained in her home many personal papers for years after their usefulness, such as household bills, certificates concerning insurance, Centrelink letters, Australian Electoral Commission letters, rates notices, car registration and other such papers. He said the deceased’s house was cluttered with such papers.
Mr Ponikvar said that the deceased had informed him that her home had once been burgled after which she became very concerned about where she kept cash and papers that were important to her. She would hide them in various locations around her home, including under the tablecloth, behind the refrigerator, within clothes and behind cushions.
Mr Ponikvar said that the deceased had informed him that she had made regular gifts of money to her relatives in both Slovenia and the United States. She did not provide similar financial assistance to him and he was not aware of her providing any similar financial assistance to her other relatives living in Australia. He said that on more than one occasion the deceased had told him that she wanted to provide equally in her will for him, Joze and her niece, Janet Novak. He said that after she had informed him that she had made a will in 2007 she did not express a desire to change her will or make a new will. After that the deceased did not say she had spoken to a lawyer about making a new will. He said that the deceased had not told him that she had destroyed the original 2007 will nor did she ever express an intention to do so. Mr Ponikvar said he had no reason to think that she had destroyed the will or intended to do so.
Under cross-examination Mr Ponikvar acknowledged that he could not say how often the deceased saw Sandra Novak. He accepted that when Mr Sever died the deceased was very upset. The deceased did not inform Mr Ponikvar when she made her will in 1993.
Joze Ponikvar
Mr Joze Ponikvar gave evidence that he migrated to Australia from Slovenia in 1988. He said he had a close relationship with the deceased. He would visit most Sundays and frequently more than once a week, particular when she needed something done around the house. He said the deceased told him that she would frequently send money to relatives both in Slovenia and in the United States. Sometimes they were sums up to $5,000. Importantly, he said that the deceased told him on various occasions throughout her life that she had a will. She said to him that she knew of friends who had problems because they did not have wills. She expressed a belief that if she did not have a will then the government would take her property. As she did not want this to occur she said it was important to have a will. He said that after the death of the deceased’s close friend Mr Sever she told Mr Ponikvar she had made a will with a solicitor named Tanya Ryan. She did not speak of the contents of the will nor where she kept it.
Mr Ponikvar said that on the day of the deceased’s death he and his brother and their wives searched the deceased’s house for important papers including her will. He said they found approximately $1,000 in a wallet which the police took after issuing a receipt.
Mr Ponikvar said that the deceased regularly hid important documents. She kept a lot of papers under the tablecloth in the kitchen and she also would hide money and documents in her clothes. He said she had previously hidden money in the chicken coop out the back of the house. He said the deceased did not tell him that she had given her will to someone else for safekeeping. Neither did she say that she had destroyed it.
The deceased kept newspapers, letters, bills and advertising material well after they served any useful purpose. He said papers were spread throughout the house in no obvious order.
Under cross-examination Mr Ponikvar confirmed that the deceased was very upset after Mr Sever’s death.
Mr Ponikvar said that after the deceased’s death during the search of the house they found a cardboard box with a lot of the deceased’s important papers. He said they conducted a thorough search of the house. He thinks they found the box in the lounge room. He believes that the Certificate of Title was found in the box.
Mr Ponikvar said that the deceased enjoyed good health up until shortly before her death. He said he considered the deceased to be an honest woman who would not lie.
Tanya Ryan
Tanya Ryan gave evidence that she is a solicitor who first met the deceased in 2007 when she instructed Ms Ryan to assist her with obtaining probate of the will of Joseph Sever and the administration of his estate. During the course of seeing the deceased, in the context of expressing a wish to prepare a will, the deceased said to her words to the effect that she needed to get her affairs in order. Ms Ryan said the deceased attended at her office and provided instructions to prepare a will and an enduring power of attorney. Ms Ryan prepared the will in accordance with the deceased’s instructions. She considered the deceased was in good health and she did not observe anything to indicate that she lacked testamentary capacity. She said the deceased executed her will on 16 February 2007 at Ms Ryan’s office at Underdale. She was one of the subscribing witnesses, the other being Ms Ryan’s mother. She said that in accordance with her usual practice, after executing the will, she gave the deceased the original to retain, together with a copy of the will and a covering letter outlining, amongst other things, the necessity for safekeeping of the document.
Ms Ryan said that she retained a copy of the will which is a true copy of the original which she prepared and the deceased executed.
Ms Ryan said that shortly after the deceased’s death she was contacted by Ivan Ponikvar in search of the deceased’s will. She provided him with a copy of the will but advised him that he would need the original to apply for probate. She said that Mr Ponikvar explained that he had looked through the deceased’s home and could not locate the original will. Ms Ryan formed the view that perhaps Mr Ponikvar was uncertain of what he was trying to find so she agreed to visit the deceased’s house to conduct her own search. When she did so she observed that the deceased’s house was very haphazard and untidy. There was a large accumulation of documents and papers throughout the house including old newspapers. Notwithstanding looking through numerous boxes and papers in the deceased’s home, she was unable to locate the original will.
Ljudmila Intahar
Ljudmila Intahar gave evidence that she was related to the deceased who was her daughter’s Godmother. From 1972 until the deceased’s death they had a very close relationship. They were close in age, and over time Ms Intahar came to think of the deceased as a sister. They spoke regularly on the phone and shared personal stories. Shortly after Mr Sever’s funeral the deceased told Ms Intahar during a telephone conversation that she was having a new will prepared. She said that Ivan Ponikvar would be the executor of her estate and she was going to divide her estate equally between her nephews Ivan and Joze Ponikvar, and her niece Janet Novak. The deceased said that she was peaceful with this decision. She told Ms Intahar that she treated each of the proposed beneficiaries as though they were her own children. Ms Intahar said that during her many discussions with the deceased it was apparent to her that the deceased had a very close relationship with Ivan Ponikvar, Joze Ponikvar and Janet Novak.
Ms Intahar said that not long after the deceased had informed her she was having a new will prepared the deceased telephoned her and said that she had executed her new will and she was extremely satisfied with Ms Ryan’s work in preparing it. She recommended that if Ms Intahar needed any legal work done she should use Ms Ryan.
Ms Intahar said that up until her death the deceased was in good health. She did not observe anything that would indicate to her that the deceased suffered any mental incapacity. She observed that she did not consider the deceased was a person who made rash decisions. She was a person who thought maintaining papers and records was important.
Ms Intahar said that subsequent to her making the will with Ms Ryan, the deceased did not inform her that she had destroyed her will, mislaid it or had otherwise lost her will.
Rodney Lawrence Jones
Mr Jones is a solicitor who gave evidence concerning his attempts to contact the surviving relatives of the deceased and to secure their consent to the application.
Christina Flourentzou
Christina Flourentzou is a solicitor who gave evidence of various investigations she had conducted. They disclosed that Mrs Ivanka Novak, the mother of Janet and Sandra Novak, died on 26 April 1996. By her will made on 13 August 1987 Ivanka Novak left the whole of her estate to her husband, Miro Novak. In the event that her husband did not survive her she bequeathed a house property at Gladstone Road, Mile End, to Janet Novak and a house property at Henley Beach Road, Lockleys, to Sandra Novak. In accordance with the terms of her will, the residential property at Henley Beach Road, Lockleys, was transferred to Sandra Novak, Miro Novak having predeceased his wife. As at 1 January 2015 the Valuer-General assessed the capital value of that property as $630,000. Janet Novak is currently the registered proprietor of the residential property at Gladstone Road, Mile End. This property was transferred to her by Miroslav Novak and Ivanka Novak on 6 April 1979 in consideration of a payment of $35,000. Accordingly it is curious that Ivanka Novak should have sought by her will of 13 August 1987 to gift the Mile End property to Janet Novak given Janet had purchased it from her parents eight years earlier. There is nothing in the evidence to explain this curiosity.
Sandra Novak
Sandra Novak gave evidence that she was the niece of the deceased. She has known the deceased all her life. The deceased was her sponsor at her Confirmation and taught her to drive. She spent a lot of time with the deceased. When she was younger the deceased would visit her family home. Once Ms Novak was an adult she continued to see the deceased on a weekly basis. She would take the deceased to medical appointments, shopping and the chemist. During the period from 2007 to 2010 she continued to visit the deceased every Sunday, during which there would be discussion about family matters. In this time she only once saw Joze Ponikvar at the deceased’s home. During this period she said she did not see Ljudmila Intahar at the deceased’s house. She said the deceased once commented that Ms Intahar never visited the deceased. Ms Novak said that sometime in the 1990s the deceased told her that she had made a will leaving her estate equally to her, her sister Janet Novak, Ivan Ponikvar and Joze Ponikvar. She said that on 14 March 2007 she visited the deceased at which time the deceased told her that she had made a new will with Tanya Ryan and that she was a named beneficiary. The deceased said to her, “Don’t worry, you are still in it”. This occasion was recorded in Ms Novak’s diary.
Ms Novak gave evidence she is puzzled why she should have been excluded from the deceased’s 2007 will given that they enjoyed a close and loving relationship, unmarred by arguments and remained in close touch until the deceased’s death in 2010.
Consideration
As I have observed earlier in these reasons, the real issue in this application is whether the presumption of revocation is rebutted.
I am satisfied that the original of the copy will dated 16 February 2007 existed. I am further satisfied that the original will was duly executed. I am satisfied the copy will in evidence is an accurate and complete copy of the original will. I am further satisfied that thorough searches have been conducted to find the original will including publishing advertisements regarding the missing original will. I find the 2007 will revoked all pre-existing wills. I am further satisfied that while not all persons prejudiced by the application, if it is granted, have consented to the application I consider it is just and expedient in the circumstances to dispense with such consent if I am satisfied that the presumption of revocation has been rebutted. It has been the practice of this court to dispense with the need for the consent of all parties who may be prejudiced by the grant where there is no doubt that the document sought to be proved is a copy of the original will.[12]
[12] In the Estate of Roediger (deceased) [1967] SASR 118 at 120.
In this case I am satisfied that the presumption has arisen. For the presumption to arise it is necessary that there is evidence that the deceased was last in possession of the original 2007 will. I am satisfied the original of the 2007 will can be traced to the deceased. Ms Ryan’s evidence satisfies me that she provided the original will to the deceased shortly after its execution on 16 February 2007. There is no evidence of it subsequently leaving the deceased’s possession. As the original will was not forthcoming on her death, it is presumed to have been destroyed by the deceased unless that presumption is rebutted.
It is the applicant, Mr Ponikvar, who bears the onus of rebutting the presumption. He must do so on the balance of probabilities bearing in mind the need for clear and convincing evidence, considering the whole of the facts together, and drawing such inferences as should be drawn from the totality of the evidence.
There were two searches of the deceased’s house conducted shortly after her death. The first by Ivan and Joze Ponikvar and their wives, and the second by the solicitor, Ms Ryan. Neither search resulted in the discovery of the original 2007 will. However, the search undertaken by the Ponikvars did discover other important documents of the deceased including the Certificate of Title of her house and passports. Joze Ponikvar remembered that these documents were found in a cardboard box located in the lounge room of the house.
It is unclear whether the deceased made more than two wills. Certainly there is no evidence that she made another will after the will of 16 February 2007. I accept the evidence, however, of Sandra Novak, which is unchallenged, that on 14 March 2007, only one month after the deceased made her will, the deceased volunteered to Sandra that she had made a new will which provided for Sandra Novak as a beneficiary of the deceased’s estate. On the assumption that the deceased had not made a further will in the intervening month, that statement was a misrepresentation of the true position. This raises the question as to whether, when the statement was made, the deceased misunderstood the testamentary effect of the 2007 will or was deliberately misleading Sandra Novak. The latter proposition would appear to be contrary to Joze Ponikvar’s assessment of the deceased’s character and inconsistent with the nature of the relationship she apparently enjoyed with Sandra. On the other hand, Ms Ryan gave unchallenged evidence that she prepared the 2007 will in accordance with the deceased’s instructions. Those instructions would appear to be consistent with the evidence of Ms Intahar of the statement made by the deceased at about that time as to her testamentary intentions and the evidence of Ivan Ponikvar that the deceased had told him of her intention in her will to divide her estate equally between him, his brother and Janet Novak. I accept this evidence. As Debelle J said in Wesley v Wesley:[13]
It is not uncommon in human experience for a testator to give divergent accounts of his will to different persons either to maintain harmony or to curry favour with family or friends. Each case will have to be determined on its own facts and each will suggest the kind of caution which should be exercised.
[13] (1998) 71 SASR 1 at 5.
While Sandra gave evidence that the deceased once remarked that Ms Intahar did not visit the deceased, that is not inconsistent with Ms Intahar’s evidence that the relationship seemed to have been maintained mostly by telephone. Further, that remark does not contraindicate the maintenance of a relationship of trust and confidence between the deceased and Ms Intahar such that the deceased would be prepared to confide her testamentary intentions to her.
In addition, I note that Sandra Novak says that in the 1990s the deceased told her that she had made a will leaving her estate equally to her, Janet Novak, Ivan Ponikvar and Joze Ponikvar. This statement was misleading by omission if it is referable to the 1993 will which left one-third of the deceased’s estate to Joseph Sever and the residue to be shared equally between Sandra Novak, Janet Novak, Ivan Ponikvar, Joze Ponikvar and eight other nieces and nephews.
I am not prepared to find that when the deceased made her 2007 will she intended to benefit Sandra Novak. It follows that I am not prepared to find that she destroyed the will because she realised that its terms did not accord with her testamentary intention to benefit Sandra Novak.
I am reinforced in this view by the conclusion I draw that the deceased did consider it important that she have a valid will. I find that she had a high regard for the professional abilities of her solicitor, Ms Ryan. If she had destroyed her will because it did not accord with her testamentary intentions I am satisfied that she would have taken steps to make a new will. In fact, I consider it unlikely that even if she came to the conclusion that the 2007 will did not accurately reflect her testamentary intentions, she would have destroyed the will before making a new will, given the importance she attached to having a valid will. Furthermore, I consider it unlikely that the deceased had a sufficiently sophisticated understanding of the law in this area as to appreciate that if she died without a will, Sandra Novak would have shared in her estate pursuant to the laws of intestacy. Such an appreciation would be at odds with her apprehension that if she died without a will the government would take her estate.
In my view, the evidence permits of three possibilities: first, that the deceased destroyed her will, second, that the deceased lost her will, and third, that the deceased concealed her will in a place that has not been located.
I am unable to find whether the deceased lost her will or concealed it in a place such that it cannot now be found. Given her nature I consider that she would have said something to one of the witnesses had she been aware that the original will was lost. On the other hand, she may have lost the will without being aware of the fact. In the end, that does not matter. I am satisfied that if the deceased had deliberately destroyed the will she would have told one or more of the witnesses whose evidence was before the court. I find that she did not do so. I find that in the period subsequent to 16 February 2007, the deceased did not tell any of the witnesses either that she had altered the testamentary intentions expressed in the 2007 will or that she had realised the will did not accurately reflect those intentions, and that as a result she had destroyed the will. The evidence of events that occurred subsequent to the deceased executing the original of the 2007 will does not reveal anything which shows that the deceased had any reason to revoke the will by destroying it. Accordingly, the strength of the presumption is weakened to such an extent that it is overcome. This leads me to conclude that the presumption of revocation has been rebutted. Even though the original of the 2007 will cannot be found, it is more likely than not that the reason for it being missing is something other than that the deceased destroyed it with the intention of revoking it.
In these circumstances I consider the application should be allowed and an order made admitting to proof a copy of the will made by the deceased on 16 February 2007.
Conclusion
Probate of a will of Frances Ponikvar late of 17 Murphy Street, Fulham Gardens in the said State, home duties, deceased, contained in a copy dated the 16th day of February 2007 and referred to at Annexure “A” to the affidavit of Ivan Ponikvar affirmed 22 May 2015 be granted to the said Ivan Ponikvar of 6 Olympiad Court, Golden Grove in the said State, limited until the original will is brought into and left in the Probate Registry of this Court.
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