In the Estate of KUNNEN (DECEASED) - [2019] SASC 53

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of KUNNEN (DECEASED)
[2019] SASC 53
Judgment of The Honourable Justice Bampton
17 April 2019
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
SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS
Testamentary causes – application for unexecuted document to be admitted to probate – where applicant sole named executor – where evidence that deceased executed the document, but executed document lost – where no evidence of revocation or destruction – where application not opposed – whether unexecuted document be admitted to probate.
Held, allowing the application – the document expresses the testamentary intentions of the deceased and she intended the document to constitute her will – the document be admitted to probate and probate be granted to the applicant.
Wills Act 1936 (SA) s 12; Probate Rules 2015 (SA) r 64, referred to.

In the Estate of KUNNEN (DECEASED)
[2019] SASC 53
Testamentary Causes Jurisdiction

BAMPTON J: Anna Maria Kunnen (“Anna”) died on 20 January 2017 at the Lyell McEwin Health Service. She is survived by her two children, Laury Hendrik Bais (“Laury”) and Bianca Dorothea Bais (“Bianca”). At the time of her death Anna was a divorced woman in a de facto relationship with Helmut Fliether (“Helmut”).
By summons dated 22 October 2018, Linda Janine Byrne (“Linda”), seeks an order that an unexecuted copy of a document titled “This is the Last Will and Testament of me Anna Maria Kunnen” dated 2015 (“the 2015 document”), annexed to the affidavit of Linda’s solicitor, Antonio Tropeano, sworn on 21 September 2018, be admitted to probate pursuant to s 12(2) of the Wills Act 1936 (SA).
In her executor’s oath affirmed on 17 March 2018, Linda deposes that she believes the 2015 document to be the last will and testament of Anna and that she is the sole executor named in the 2015 document. Linda further deposes that she has seen a copy of an account addressed to Anna from Nicholls Gervasi Lawyers dated 30 October 2015 recording that a will was executed in October 2015, and a copy of a file note recording that Anna made an appointment by telephone for 27 October 2015 with Nicholls Gervasi Lawyers to execute a new will. Copies of the account and the file note are annexed to Linda’s affidavit.
Mr Tropeano deposes in his affidavit sworn on 21 September 2018 that Nicholls Gervasi Lawyers, who acted for Anna in 2015, have provided his office with their complete file (“the file”).
Mr Tropeano deposes that the file included the 2015 document, the file note of the telephone attendance, and the account referred to above. Annexed to Mr Tropeano’s affidavit is the 2015 document, a copy of the file note, and a copy of the account.
The 2015 document
The 2015 document appoints Linda as executor and Rutlinde Hildeburg Grillitsch a substitute executor. It is described as the last will of Anna which revokes all former wills. It provides for Helmut to have the use and occupation of Anna’s place of residence for life or until he vacates, subject to obligations such as paying rates, taxes, and mortgages. It gifts jewellery, certain crockery, chattels, and pot plants to Bianca, and an aviary, certain other chattels to Laury. It provides that the residual estate is to be shared equally between Laury and Bianca and bears the typed date “2015” in the execution clause.
Having regard to the file received by Mr Tropeano’s firm, it appears that a will was prepared for Anna in 2009 and that an account was rendered for the execution of a will in April 2009. A note on the file records that Nicholls Gervasi Lawyers reopened their file on 27 October 2015. The file note of the telephone attendance referred to above is dated 26 October 2015 and records a telephone message to CN (presumably Chris Nicholls) from Maria Kunnen (presumably Anna, given her middle name is Maria). The note states “Will update to change one name” and that an appointment had been made for Tuesday 27 October 2015 at 2.00 pm.
The Nicholls Gervasi Lawyers account addressed to Anna records:
MATTER  PERSON RESPONSIBLE
Matter No. 63988  Chris WG Nicholls
Ms A M Kunnen
Will
Professional Fees
Date             Details
30/10/2015To amount of our professional fees and charges including personal attendance on yourself to obtain instructions; draft and engross Last Will and Testament; draft and engross Enduring Powers of Attorney and Advanced Care Directive; personal attendance on yourself to execute Last Will and Testament …
I infer that the reference to “personal attendance on yourself to execute Last Will and Testament” together with the note regarding the appointment made for 27 October 2015 indicates that there must have been a personal attendance on Anna to execute her last will and testament on 27 October 2015.
The file also includes a letter dated 3 March 2017 from a firm of solicitors, White Berman, wherein White Berman stated that they act for Helmut, Anna’s de facto spouse for 20 years, and that Helmut instructed them that “the named executors Linda Janene Byrne and Rutlinde Hildeberg Grillitsch (sic) will renounce Probate of the deceased’s Will apparently dated 27^th October 2015”. It is to be noted that Linda has not renounced probate and makes this application. White Berman stated that upon renunciation Helmut will be entitled to administer the estate and apply for letters of administration with the will annexed. White Berman requested copies of any original testamentary documents that Nicholls Gervasi Lawyers had in their possession, together with any powers of attorney, powers of guardianship, advanced care directives, and a copy of any instructions taken in respect of such documents.
There is no evidence on the file that the original will, or any copy, was sent to White Berman.
Laury deposes in his affidavit affirmed on 9 April 2017 that extensive searches have been made of Anna’s residence for the executed original of the 2015 document and an advertisement was placed in The Advertiser on 6 February 2017. The searches were to no avail and no response to the advertisement has been received.
In accordance with my orders, these proceedings have been served on Bianca, Laury, Nicholls Gervasi Lawyers, and White Berman.
Conclusion
I am satisfied that the original of the 2015 document cannot be found. A copy has been produced. At a hearing before me on 1 April 2019, Helmut stated that he has a specific memory of having attended at the offices of Nicholls Gervasi Lawyers with Anna in October 2015 when Anna received the original of the 2015 document and four copies.
Nicholls Gervasi Lawyers’ account is evidence of due execution. Linda has established that there is a will as evidenced by the 2015 document coupled with the account rendered by Nicholls Gervasi Lawyers for executing it.
The 2015 document revokes all previous wills. As it makes careful and complete disposition of Anna’s property and there is no evidence as to any circumstance to suggest “probable destruction with an intention to revoke” by Anna, the presumption of destruction “is so slight that it may be said not to exist”.[1]
[1] David M Haines, Succession Law in South Australia (LexisNexis Butterworths, 2003) at 194, [12.18].
Having regard to the whole of the evidence, the inference to be drawn is that the executed original of the 2015 document has not been destroyed.
At the directions hearing before me on 1 April 2019, Bianca, Laury, and Helmut all consented to the 2015 document being admitted to probate.
Pursuant to s 12(2) of the Wills Act 1936 and r 64 of the Probate Rules 2015 (SA), I am satisfied that the 2015 document expresses the testamentary intentions of Anna and that she intended the 2015 document to constitute her will. Accordingly, I order:
1.The 2015 document, exhibit AT1 to the affidavit of Antonio Tropeano sworn on 21 September 2018, be admitted to probate as the last will of Anna Maria Kunnen late of Lynore Avenue, Para Hills and that probate of the will be granted to Linda Janine Byrne limited until the original will is brought into and left in the Probate Registry of this Court.
2.The costs of and incidental to the proceedings are to be paid out of the estate of Anna Maria Kunnen.