In the Estate of LEON KOLECKI (DECEASED) - [2011] SASC 158

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of LEON KOLECKI (DECEASED)
[2011] SASC 158
Judgment of The Honourable Justice Gray
29 September 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 the deceased's daughter - the deceased and his wife executed wills on 3 June 2003 - the original wills were retained in satchel which was usually kept at the home property of the deceased and his wife - where the deceased's original will was last seen in the satchel on 16 October 2005 and at that time it was in possession of a son of the deceased - where the deceased was admitted to a nursing home on 17 October 2005 and did not reside at the home property after that time - where the deceased's original will has not been found, but a copy has been located - whether the presumption of revocation arises - whether the other requirements for admission of a copy will to probate have been met.
Held: application granted - the presumption of revocation does not arise - in any event, if the presumption did arise, it has been rebutted - the deceased did not revoke his will - probate of the deceased's will, as contained in a copy, granted to the deceased's daughter 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 4.04, r 68, r 77; Administration and Probate Act 1919 (SA) s 72G(1)(c), s 721; Wills Act 1936 (SA) s 12(2), s 22; Inheritance (Family Provision) Act 1972 (SA) s 4; Family Relationships Act 1975 (SA) s 6, s 7, referred to.
In the Estate of Hall [2011] SASC 117; Cahill v Rhodes [2002] NSWSC 561; Curley v Duff (1985) 2 NSWLR 716; In the Estate of Engelhardt Deceased [2010] SASC 196; In the Estate of Roediger Deceased [1967] SASR 118; Re 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; Feehan v State Trustees Ltd (Unreported, Supreme Court of Victoria, Smith J, 22 May 1998); 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; Gordon v Beere [1962] NZLR 257; In the Estate of Yiossis [2011] SASC 99 [2011] SASC 99, considered.

In the Estate of LEON KOLECKI (DECEASED)
[2011] SASC 158
Testamentary Causes Jurisdiction
GRAY J:
Introduction

This is an application by summons for an order that probate of the last will and testament of Leon Kolecki as contained in a copy dated 3 June 2003, be granted to the daughter of the deceased, Danuta Miller, 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.
The application was supported by affidavits from a number of deponents. Several affidavits did not comply with the formal requirements prescribed in the Probate Rules 2004 (SA). The application was not opposed. There was no objection to any of the affidavit evidence. Pursuant to rule 4.04 of the Probate Rules, I dispense with the requirement to comply with those rules.
The Facts
The deceased died on 11 June 2008 in Oakden Aged Mental Health Care Services in Oakden, South Australia. The deceased’s wife, Katarzyna Kolecki, predeceased him. She died on 2 August 2007.
The deceased was survived by his daughter Danuta and two sons: Marian Kolecki and Henry Kolecki. The deceased also had a step-son, Feliks Kolecki, who was a child of Mrs Kolecki from a previous relationship. Feliks was raised by the deceased as a child of the family. However, Danuta deposed that she is unaware of any formal adoption papers ever having been processed for Feliks. Feliks died on 13 January 1987. He is survived by two adult children, Sharon Kolecki and Paul Kolecki.
On 3 June 2003, the deceased and Mrs Kolecki executed wills which had been prepared by solicitors at Gladys & Lewis. The deceased’s will was executed in the presence of two witnesses, one of whom was Witold Gladys. Mr Gladys deposed to the due execution of the deceased’s will. Mr Glady’s deposed that, prior to execution, he read the will to the deceased in the Polish language and that the deceased understood the will and had full knowledge of its contents. Danuta deposed that both the deceased’s original will and Mrs Kolecki’s original will were kept in a satchel which contained other papers including the title deed to their home property in Athol Park. Apparently the satchel was kept at that property. A copy of the deceased’s will was retained by Gladys & Lewis.
Although Mr Gladys does not mention explicitly that he gave the original wills to the deceased and Mrs Kolecki, a strong inference arises that Mr Gladys did so. There is no other reasonable explanation open on the evidence given that Mr Gladys deposed to having kept a copy, and given that there is evidence that the original will was later with the deceased.
The terms of the deceased’s will provide that in the event that Mrs Kolecki survived the deceased by 30 days, she was to be appointed as the sole executor of the will and was to receive the whole of the deceased’s estate. However, as mentioned, Mrs Kolecki predeceased the deceased and, in that event, the deceased left his interest, if any, in Kolecki Holdings Pty Ltd – the business – to Marian and Henry in equal shares as joint tenants. The deceased left the residue of his estate to Danuta.[1] Prior to the death of the deceased, the Court was informed that the deceased’s interest in the business was transferred to Marian and Henry. The deceased’s estate was therefore left entirely to Danuta. Danuta was appointed in the will as the sole substituted executor.
[1] In the event that Danuta predeceased the deceased, the deceased’s great granddaughter, Caroline Miller, would have been entitled to the residue of the deceased’s estate.
The terms of the will executed by Mrs Kolecki in 2003 were similar to those of the deceased’s will; that is, the whole of the estate was left to the deceased if he survived her by 30 days and, if not, the business was left to Marian and Henry and the residue of the estate was left to Danuta.
It is evident from the copy wills of the deceased and Mrs Kolecki executed on 3 June 2003 that, following the death of both of them, the succession plan for the family was for Marian and Henry to receive the business and for Danuta to receive the residue of the estate.
The deceased’s estate comprises the home property in Athol Park which has been valued by the Valuer-General at $285,000.00; household and personal effects valued at $5,000.00; and, cash assets of approximately $89,000.00. The only liability in the deceased’s estate is $13,081.00 for funeral expenses.
On 17 October 2005, the deceased was admitted to the Amity Nursing Home in Woodville. The deceased resided there until 31 October 2005 when he transferred to Flora McDonald Lodge in Cowandilla. On 18 March 2006, the deceased transferred to St Teresa Aged Care Facility in Croydon. He resided there for approximately 4 months, after which time he was admitted to the Queen Elizabeth Psychiatric Ward. He subsequently transferred to Oakden Aged Mental Health Care Services where he resided until his death.
The deceased’s original will cannot be found, but a copy has been located. Mr Gladys deposed that the copy will is a true copy of the original will. Thorough searches have been conducted of the deceased’s personal papers and the places where he kept his important papers. Enquiries about the existence of the original will have been made at the four nursing homes in which the deceased resided. Those enquiries have yielded no positive results. Further, an advertisement in the Advertiser newspaper seeking information regarding the lost will has received no response.
Danuta deposed that the deceased did not have possession of his original will at any time after he moved to the Amity Nursing Home on 17 October 2005. There is no evidence to the contrary.
Danuta deposed that in late September 2005 she located the satchel containing the deceased’s original will of 3 June 2003 while she was thoroughly cleaning the house in which the deceased resided. She deposed that the satchel also contained the deceased’s enduring power of attorney document which appointed her as the attorney.
Danuta deposed that she removed the deceased’s enduring power of attorney document from the satchel for the purpose of admitting the deceased to Bartonvale Nursing Home. She subsequently returned the enduring power of attorney document to the satchel. The deceased only resided at Bartonvale Nursing Home for about one day, before returning to his home property in Athol Park.
On 13 October 2005, Danuta and Mrs Kolecki had an argument. Danuta deposed that Mrs Kolecki remained angry for some months. Mrs Kolecki executed a will on 6 December 2005 in which she revoked her will of 3 June 2003 and left her entire estate to Marian and Henry.[2]
[2] In the event that Marian and/or Henry predeceased Mrs Kolecki, Marian or Henry’s children, if any, would have been entitled to take equally their parent’s share of the residue of Mrs Kolecki’s estate.
In order to admit the deceased to the Amity Nursing Home, Danuta was required to produce the deceased’s enduring power of attorney document. Danuta deposed that at about 4:00 pm on Sunday 16 October 2005, Marian brought the satchel to her home and she removed the deceased’s enduring power of attorney document from it. She saw the deceased’s will in the satchel. Danuta deposed that Marian then took the satchel containing the deceased’s will and left her house to walk to the home property of the deceased and Mrs Kolecki.
Marian deposed that in about October or November 2005 at sometime after the deceased moved to the Flora McDonald Lodge, Mrs Kolecki gave a satchel to him which contained important documents of Mrs Kolecki and the deceased. He deposed, however, that when he first opened the satchel to examine its contents shortly after receiving it, the satchel did not contain the deceased’s original will executed in 2003 or any of the deceased’s earlier wills.
Mrs Kolecki executed a further will on 19 May 2006. In this will, she left the whole of her estate to Danuta.[3] Danuta deposed that she believes that the satchel was returned by Marian to Mrs Kolecki on 25 May 2006, after Mrs Kolecki executed her will of 19 May 2006. Marian deposed that he returned the satchel to Mrs Kolecki in May 2006 and that, at that time, the satchel contained the same documents that it contained when Marian received it in 2005. However, as mentioned, Marian gave evidence that the deceased’s will was not in the satchel when he received it. Further, Marian deposed that he did not destroy the deceased’s original will of 2003 and that he is unaware of what happened to it.
[3] In the event that Danuta predeceased Mrs Kolecki, the residue of the estate of Mrs Kolecki would have been divided between Mrs Kolecki’s granddaughter, Lydia Bais, and Mrs Kolecki’s great granddaughter, Caroline Miller.
The Registrar of Probates, pursuant to rule 77 of the Probate Rules, has referred the summons to me for consideration.
The Application
The summons was brought pursuant to rule 68 of the Probate Rules. Rule 68 relevantly provides:
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.
…
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.
In In the Estate of Hall (deceased), I recently summarised the relevant considerations for the admission of a copy will to probate as follows:[4]
[4]    In the Estate of Hall (deceased) [2011] SASC 117, [15].
-that the original will existed;[5]
-that the original will was duly executed;[6] 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;[7]
-that there is evidence of the terms of the original will;[8]
-that the copy will is an accurate and complete copy of the original will;[9]
-that thorough searches have been conducted to find the original will,[10] including publishing advertisements regarding the missing original will;[11]
-that the original will revoked all pre-existing wills;[12]
-the circumstances surrounding the absence of the original will;[13]
-that all persons prejudiced by the application, if it is granted, have consented to the application and are sui juris;[14] and
-that the presumption of revocation does not arise or has been rebutted.[15]
[5]    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.
[6]    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.
[7] See for example, section 12(2) of the Wills Act 1936 (SA); see also, Cahill v Rhodes [2002] NSWSC 561, [53]-[55].
[8]    Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 719.
[9]    In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; In the Estate of Roediger Deceased [1967] SASR 118, 120.
[10] In the Estate of Engelhardt Deceased [2010] SASC 196, [20].
[11] In the Estate of Roediger Deceased [1967] SASR 118, 120.
[12] Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 718-719.
[13] In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; In the Estate of Roediger Deceased [1967] SASR 118, 120.
[14] In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; In the Estate of Roediger Deceased [1967] SASR 118, 120.
[15] Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 719; Allan v Morrison [1900] AC 604.
In the present proceeding, I am satisfied that the deceased’s will of 3 June 2003 existed and was duly executed, that sufficient searches have been conducted to find the will and that the original will is missing. I am also satisfied that the copy will is an accurate and complete copy of the original will and, accordingly, there is evidence of the terms of the will. Further, the original will contained a revocation clause revoking all previous wills.
I now turn to consider the requirement that all persons prejudiced, if the application is granted, have consented and are sui juris. The persons prejudiced are those who would benefit if the deceased died intestate. Part 3A of the Administration and Probate Act 1919 (SA) contains the provisions which govern the distribution of the deceased’s estate in the event of an intestacy. Section 72G(1)(c) of that Act is of relevance to the present proceeding and is in the following terms:
(1)Subject to this Part, an intestate estate shall be distributed according to the following rules:
…
(c)if the intestate is not survived by a spouse or domestic partner, but is survived by issue—the issue is entitled to the whole of the intestate estate;
Section 72I of the Administration and Probate Act contains the rules which would govern the distribution of the deceased’s estate amongst his children if he died intestate. Section 72I is in the following terms:
The following rules govern distribution of an intestate estate, or part of an intestate estate, amongst issue of the intestate:
(a)     if the intestate is survived by a child and by no other issue (apart from issue of that child) that child is entitled to the whole, or that part (as the case may be) of the intestate estate; and
(b)     if the intestate is survived by children and by no other issue (apart from issue of those children) those children are entitled to the whole, or that part (as the case may be) of the intestate estate, in equal shares; and
(c)     if the intestate is survived by a grandchild and by no other issue (apart from issue of that grandchild) that grandchild is entitled to the whole, or that part (as the case may be) of the intestate estate; and
(d)     if the intestate is survived by grandchildren and by no other issue (apart from issue of those grandchildren) those grandchildren are entitled to the whole or that part (as the case may be) of the intestate estate in equal shares; and
(e)     in any other case, the whole or that part of the intestate estate shall be divided into portions equal in number to the number of children of the intestate who either survived the intestate or left issue who survived him and—
(i)a child (if any) of the intestate who survived the intestate is entitled to one of the portions;
(ii)where a child of the intestate died before the intestate leaving issue that survived the intestate, that issue is entitled per stirpem (through all degrees) to one of those portions (and if the issue comprises two or more persons, they share equally).
[Emphasis added.]
It is undisputed that Danuta, Marian and Henry are children of the deceased who would each be entitled to a portion of the estate in the event of an intestacy. Henry and Marian have both consented to the application and are sui juris.
The terms ‘children’ and ‘child’ are not defined in the Administration and Probate Act.[16] The Family Relationships Act 1975 (SA) defines the relationship of parent and child.[17] However, the provisions of that Act do not characterise the relationship between the deceased and Feliks as that of parent and child. Accordingly, the children of Feliks would not benefit in the event that the deceased died intestate and are not prejudiced by the present application. I am therefore satisfied that all persons prejudiced by the application have consented and are sui juris.
[16] It is worth noting that section 4 of the Inheritance (Family Provision) Act 1972 (SA) defines “child” in relation to a deceased person to include a person who is recognised as a child of that person by virtue of the Family Relationships Act 1975 (SA).
[17] See in particular, sections 6 and 7 of the Family Relationships Act 1975 (SA).

The remaining consideration is whether the presumption of revocation arises and, if so, whether it has been rebutted.
The presumption of revocation was described by Lord Wensleydale in Welch v Phillips as follows:[18]
…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. …
[18] Welch v Phillips (1836) 1 Moo PC 299, cited with approval in McCauley v McCauley (1910) 10 CLR 434, 438, 446 (Griffiths CJ and O’Connor J).
That the testator was last seen in possession of the will is evidently a requirement for the presumption of revocation to arise. As determined by Smith J in Feehan v State Trustees Ltd,[19] the presumption of revocation does not arise if the evidence establishes that the testator has handed his or her original will to someone else and there is no evidence which indicates that the will was returned to the testator.
[19] Feehan v State Trustees Ltd (Unreported, Supreme Court of Victoria, Smith J, 22 May 1998).
The issue in the present proceeding is whether the original will of 3 June 2003 was last seen in the deceased’s possession. The evidence establishes that the deceased’s will was kept in a satchel at the deceased’s home property where he resided with Mrs Kolecki until 17 October 2005. While the will was in the deceased’s home property, it was in the deceased’s possession.However, for reasons that follow, in my view, the evidence does not establish that the will can be traced to the possession of the deceased or that it was last seen there.[20] Accordingly, I am of the opinion that the presumption of revocation does not arise.
[20] Adopting the language of Lord Wendsleydale in Welch v Phillips (1836) 1 Moo PC 299, 302.
In late September 2005, as earlier mentioned, when cleaning the deceased’s home property, Danuta observed the will in the satchel with other important documents. Danuta removed the enduring power of attorney document and subsequently returned it to the satchel at a time which must have been before 4:00 pm on 16 October 2005. Danuta also observed the deceased’s will when she returned the enduring power of attorney document to the satchel. On the evidence, this is the last time that the will was seen located at the home property, although prior to that it was generally kept there.
At about 4:00 pm on 16 October 2005, Danuta again observed the will in the satchel with other important documents when Marian had delivered the satchel to her house, located across the road from the deceased’s home property, for the purpose of preparing an application for the deceased’s move into the Amity Nursing Home. On the same occasion, Danuta returned the satchel to Marian who left to walk back to the deceased’s home property.
The following day, 17 October 2005, the deceased moved into the Amity Nursing Home. There is no evidence which suggests that the deceased was in possession of the will at any time after moving into the nursing home.
It is undisputed that Mrs Kolecki gave the satchel to Marian sometime after 17 October 2005. Marian deposed that the deceased’s will was not contained in the satchel when he received it on that occasion. Marian returned the satchel to Mrs Kolecki in about May 2006. He deposed that at that time, the satchel contained all of the documents which were in it when he received it.
The will can be traced to Marian’s possession on 16 October 2005 and there is no evidence that it has been seen since. The will has not been found. Accordingly, in my view, the presumption of revocation does not arise.
However, insofar as the presumption might arise in the event that Marian did return the satchel containing the will to the deceased’s house property on the afternoon of 16 October 2005, I consider it highly improbable that the deceased destroyed the will with the intention of revoking it. This is so both because there is nothing to suggest that the deceased was in possession of the will after moving to the Amity Nursing Home and because there is no evidence indicating that the deceased had a desire to revoke the will, not to mention a very small window of opportunity in which to do so. In this respect, I would, for reasons including the following, consider the presumption of revocation to be rebutted.
Before turning to those reasons, it is worth extracting the following observations that I made in In the Estate of Yiossis:[21]
[21] In the Estate of Yiossis [2011] SASC 99, [20]-[22].
The strength of the presumption of revocation is said to depend on the character of the testator’s custody over the lost instrument.[22] 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.[23]
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[24] – the presumption of revocation is so slight that it may be said not to exist.[25] On this topic, Campbell J made the following observations in Cahill v Rhodes:[26]
What Sugden v Lord St Leonards,[27] and Finch v Finch,[28] 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.]
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:[29]
…[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. …
[22] 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.
[23] See, Cahill v Rhodes [2002] NSWSC 561, [59].
[24] Cahill v Rhodes [2002] NSWSC 561, [68].
[25] 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.
[26] Cahill v Rhodes [2002] NSWSC 561, [68].
[27] Sugden v Lord St Leonards (1876) LR 1 PD 154.
[28] Finch v Finch (1867) LR 1 P & D 371.
[29] Gordon v Beere [1962] NZLR 257, 266.
In the present proceeding, the deceased had a low level of security over the will. The evidence suggests that it was generally kept in a satchel in his home. There was no evidence as to where the satchel was stored, but it is evident that the deceased’s children had no difficulty accessing the satchel.
Further, there is no evidence which suggests that the deceased spoke to anyone about his will after it was executed on 3 June 2003. There is no suggestion that the deceased was unhappy with the contents of his will. In fact, Danuta deposed that the deceased did not say anything to her about his will or that he wanted to make a new will at any time between executing his will in 2003 and his death in 2008. Danuta also deposed that from about 27 September 2005 to 13 October 2005, she lived with and cared for the deceased at his home property while Mrs Kolecki was in hospital and, during that period, the deceased did not access the satchel, make any comments or enquiries about the satchel or make any statements in relation to his will.
There is nothing to suggest that Danuta maintained anything other than a good relationship with the deceased from the time that he executed the will until his death. During that period, she visited him frequently – at least twice weekly. In these circumstances, it is improbable that the deceased would have wanted to destroy the will in which Danuta was to benefit substantially.
As mentioned, Mrs Kolecki had an argument with Danuta on 13 October 2005 which caused her to be angry with Danuta for some time. Mrs Kolecki knew that Danuta would benefit substantially under the deceased’s will as she had executed a will on the same occasion as the deceased. Her 3 June 2003 will was in similar terms. On 6 December 2005, Mrs Kolecki executed a new will which did not leave any part of her estate to Danuta. It seems that Mrs Kolecki’s anger with Danuta may have motivated her to change her will. However, shortly thereafter she made a further will leaving all of the residue of her estate to Danuta.
I now turn to consider whether the deceased’s will is a complete and careful disposition of his property. The succession plan of the family formulated on 3 June 2003 is given effect ultimately by the deceased’s will of 2003 and Mrs Kolecki’s will of 19 May 2006. The plan, as far as Mrs Kolecki was concerned was abandoned following her argument with Danuta but then, following their reconciliation, the plan was restored. Marian and Henry received the business and Danuta the home. In this respect, the deceased’s will does constitute a complete and careful disposition of the deceased’s estate.
As expressed above, in my view, on consideration of the totality of the evidence, it is highly improbable that the deceased would have destroyed his will with the intention of revoking it. I am of the view that it is likely that the deceased’s original will remained in the satchel until it was removed by someone else. There is evidence that both Mrs Kolecki and Marian subsequently possessed the satchel. It is possible, that whilst angry with Danuta, Mrs Kolecki destroyed the deceased’s will of 3 June 2003.
Insofar as it is necessary for me to do so, quite apart from the presumption of revocation I also consider that having regard to section 22 of the Wills Act 1936 (SA), the deceased did not, on the balance of probabilities, revoke the will.[30]
[30] Section 22 of the Wills Act 1936 (SA) is in the following terms:
Subject to section 12(3), no will or codicil or any part of a will or codicil is revoked otherwise than—
(a)     by marriage or termination of marriage as provided by this Act; or
(b)     by another will or codicil executed in the manner required by this Act; or
(c)     by some writing declaring an intention to revoke the will or codicil or the part of the will or codicil and executed in the manner in which a will is required by this Act to be executed; or
(d)     by the burning, tearing or otherwise destroying the will or codicil or the part of the will or codicil by the testator or by some person in the testator's presence and by the testator's direction with the intention of revoking it
Conclusion
I am satisfied that the copy will of 3 June 2003 the subject of this application is an accurate and complete copy of the last will of the deceased and that the original will was duly executed. I am also satisfied that following thorough searches, the original will cannot be found. Further, I am of the view that all of the persons prejudiced by the application have consented to it and are sui juris. I have evidence of the terms of the will and I am satisfied that it revoked all previous wills. In addition, I have reached the conclusion that the presumption of revocation does not arise and, in the alternative, I consider that if it did arise, there is sufficient evidence to rebut it.
I order that probate of the last will and testament dated the 3^rd day of June 2003 as contained in the copy (being the exhibit marked “DM1” in the affidavit of Danuta Miller sworn on the 10^th day of December 2009) of Leon Kolecki be granted to Danuta Miller the sole substituted executor therein named limited until the original will or a more authentic copy of it be brought into and left in the Probate Registry of this Court.
I direct the applicant to prepare minutes of orders to give effect to the above order.