In the Estate of NIGEL JAMES BRIGHTY (DECEASED)
[2013] SASC 125
•5 August 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of NIGEL JAMES BRIGHTY (DECEASED)
[2013] SASC 125
Judgment of The Honourable Justice Gray
5 August 2013
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
Application for an order that probate of the deceased's will, as contained in a copy, be granted to the executor of the deceased's will - the deceased's will was executed at his solicitor's office on 28 February 2013 - the deceased retained the original will - the deceased died on 10 March 2013 - the deceased's original will has not been found but a copy has been located - whether the presumption of revocation arises on the facts - whether the presumption of revocation has been rebutted.
Held: Application granted - the presumption of revocation has been rebutted - probate of the deceased's will, as contained in a copy, is granted limited until the original will or a more authentic copy is brought into and left in the Probate Registry of this Court.
Probate Rules 2004 (SA) r 68 and r 77; Wills Act 1936 (SA) s 8; Administration and Probate Act 1919 (SA) s 72G and s 72J, referred to.
In the Estate of Hall [2011] SASC 117; Welch v Phillips (1836) 12 ER 828; In the Estate of Gibbs [2012] SASC 230; Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993); Allan v Morrison [1900] AC 604; McCauley v McCauley (1910) 10 CLR 434; Sugden v Lord St Leonards (1876) LR 1 PD 154; Finch v Finch (1867) LR 1 P & D 371; Cahill v Rhodes [2002] NSWSC 561, considered.
In the Estate of NIGEL JAMES BRIGHTY (DECEASED)
[2013] SASC 125Testamentary Causes Jurisdiction
GRAY J.
This is an application by summons under rule 68 of the Probate Rules 2004 (SA) for a grant of probate of a will as contained in what is said to be a copy of the will.
The application was supported by affidavits of the deceased’s solicitor, Graham John Warburton, sworn 22 May and 3 July 2013, and affidavits of the deceased’s sister, Bronwyn Louise Jones, the applicant in these proceedings, sworn 8 May and 3 July 2013. In making the findings recorded in these reasons, I have acted on the affidavit evidence.
Introduction
Nigel James Brighty, the deceased, died on 10 March 2013, aged 43 years. He died a bachelor without issue.
About one month prior to his death, the deceased informed his sister, Ms Jones, that he had been diagnosed with lung cancer and that he was going to make a will. He asked her if she would agree to be the executor. She told him that she did agree. Ms Jones spoke to the deceased again two weeks prior to his death. The deceased told her that his will was on a wooden console next to his armchair. He said that he was waiting for his solicitor to send him another document and that when he received the document, he would put it with his will in a concertina file in his wardrobe where he kept all his important papers. The deceased’s solicitor, Mr Warburton, deposed that he believed that this additional document to which the deceased referred may have been the duplicate Certificate of Title to the deceased’s home, which Mr Warburton had kept in his office. Ms Jones did not speak to the deceased again about his will.
On 28 February 2013, the deceased attended the office of Mr Warburton for the purpose of executing a will. At that time, the deceased was aware that he was suffering from terminal lung cancer. The deceased executed the will, signing his name at the foot of each page and at the end of the document. The will was then attested and subscribed by Mr Warburton and Debra Tracey Young, a legal secretary. Mr Warburton then handed the deceased the original will and some copies. Mr Warburton suggested that the original will be kept in a secure place. The deceased told Mr Warburton that he would keep the original will in a small safe in his home. Mr Warburton retained one copy of the will.
The original will has not been located since the death of the deceased. Ms Jones has searched the deceased’s home but has been unable to locate the original will. The deceased had a folder in which he kept his important papers. The deceased also had a folder marked “Important Papers from My Lawyer”. It was in this latter folder that Ms Jones located three copies of the deceased’s will. Ms Jones deposed of her belief that the deceased would not have left the original will with anyone. Ms Jones has made enquiries with the one close friend of the deceased, who informed Ms Jones that he had not been given the original will by the deceased. Ms Jones has also been informed by the deceased’s bank that the deceased did not have a security box.
The terms of the copy will provide that the deceased bequeaths his Ford Futura station wagon, aluminium boat and outboard motor to his nephew, Matthew Jones, who is the son of Ms Jones. The balance of the deceased’s estate is to be shared equally between Ms Jones and Matthew Jones.
By summons dated 28 May 2013, Ms Jones sought a grant of probate of the deceased’s will as contained in a document said to be a copy of that will. The Registrar of Probates, pursuant to rule 77 of the Probate Rules 2004 (SA), has referred the summons to me for consideration.
The summons was brought pursuant to rule 68 of the Probate Rules, which relevantly provides:
68.01An application for an order admitting to proof a nuncupative will made in accordance with section 11 of the Wills Act, 1936, or a will contained in a copy, a completed draft, a reconstruction or other evidence of its contents where the original will is not available, may be made without notice to any other party to the Registrar by summons in the Form No. 33.
...
68.02The application shall be supported by an affidavit setting out the grounds of the application and by such evidence on affidavit as the applicant can adduce as to -
(a) the due execution of the will;
(b) its existence after the death of the testator (or if the will cannot be found at the testator's death such evidence as shall rebut a presumption of its revocation by the testator); and
(c) the accuracy of the copy or other evidence of the contents of the will;
together with the consents in writing to the application given by all persons who may be prejudiced by the grant:
Provided that if a person who is prejudiced by the application is not sui juris or cannot be ascertained or found, or if the Registrar is satisfied that in the circumstances it is just and expedient to do so, the Registrar may dispense with such consent.
In In the Estate of Hall, I summarised the considerations relevant to the admission to probate of a copy of a missing will as follows:[1]
[1] In the Estate of Hall [2011] SASC 117, [15].
· that the original will existed;[2]
· that the original will was duly executed;[3] 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;[4]
· that there is evidence of the terms of the original will;[5]
· that the copy will is an accurate and complete copy of the original will;[6]
· that thorough searches have been conducted to find the original will,[7] including publishing advertisements regarding the missing original will;[8]
· that the original will revoked all pre-existing wills;[9]
· the circumstances surrounding the absence of the original will;[10]
· that all persons prejudiced by the application, if it is granted, have consented to the application and are sui juris;[11] and
· that the presumption of revocation does not arise or has been rebutted.[12]
[2] 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.
[3] 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.
[4] See for example, section 12(2) of the Wills Act 1936 (SA); see also, Cahill v Rhodes [2002] NSWSC 561, [53]-[55].
[5] Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 719.
[6] In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; In the Estate of Roediger Deceased [1967] SASR 118, 120.
[7] In the Estate of Engelhardt Deceased [2010] SASC 196, [20].
[8] In the Estate of Roediger Deceased [1967] SASR 118, 120.
[9] Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 718-719.
[10] In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; In the Estate of Roediger Deceased [1967] SASR 118, 120.
[11] In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; 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, 719; Allan v Morrison [1900] AC 604. ...
Consideration
In the present proceeding, I am satisfied that the deceased’s will of 28 February 2013 existed. There is also evidence from Mr Warburton that the will was duly executed in accordance with the requirements of section 8 of the Wills Act 1936 (SA).
The propounded copy will is signed on each page by the deceased as testator, as well as Mr Warburton and Ms Young as subscribing witnesses. Mr Warburton deposed that the propounded copy is in fact a copy of the original will. In the circumstances, I am satisfied that the propounded copy will is a complete and accurate copy of the original will. Accordingly, there is evidence of the terms of the original will.
As earlier described, extensive searches of the deceased’s house have been undertaken. There is no evidence of any advertisement having been taken out seeking persons with knowledge of the whereabouts of the original will. However, I am satisfied that the searches that have been undertaken were sufficiently thorough and that the original will cannot be found.
I now turn to consider the requirement that all persons who would be prejudiced if the application were granted have consented and are sui juris. The deceased had no living parent or issue at the time of his death. Other than Ms Jones, the deceased had no living sibling at the time of his death. If the application were rejected and the estate were distributed according to the rules of intestacy, Ms Jones would be entitled to the entirety of the deceased’s estate.[13] Ms Jones is therefore the only person who would be disadvantaged if the application were allowed. Ms Jones deposed that she is aware of this fact and that she nevertheless does not oppose probate being granted according to the propounded copy will. I am therefore satisfied that all persons prejudiced by the application, if it were granted, have consented to it and are sui juris.
[13] Administration and Probate Act 1919 (SA) section 72G and section 72J.
I now turn to the presumption of revocation. This presumption was described in Welch v Phillips in the following terms:[14]
…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] Welch v Phillips (1836) 12 ER 828, 829 cited by Griffith CJ and O’Connor J in the High Court in McCauley v McCauley (1910) 10 CLR 434, 438, 446.
As earlier indicated, there is evidence that Mr Warburton handed the original will to the deceased after it was executed on 28 February 2013. There is also evidence that the original will was at the deceased’s home when the deceased spoke to Ms Jones about two weeks prior to his death. There is no evidence which suggests that the deceased parted with possession of the original will after that time and Ms Jones deposed that she thought the deceased was unlikely to have left the original will with anyone else. Accordingly, the presumption of revocation arises.
In In the Estate of Gibbs, I made the following observations regarding the rebuttal of the presumption of revocation:[15]
The presumption of revocation is a presumption of fact which may be rebutted by appropriate evidence.[16] It is the applicant who carries the onus of rebutting the presumption.[17] 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”.[18]
[15] In the Estate of Gibbs [2012] SASC 230, [31].
[16] Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993); see also, Colvin v Fraser (1829) 2 Hag Ecc 266; Welch v Phillips (1836) 1 Moo PC 299; In the Estate of Gerard Deceased (2007) 251 LSJS 176, [32].
[17] Welch v Phillips (1836) 1 Moo PC 299, 302; In the Estate of Gerard Deceased (2007) 251 LSJS 176, [34]; see eg, Allan v Morrison [1900] AC 604.
[18] Gordon v Beere [1962] NZLR 257, 266.
One factor that is relevant to determining whether the presumption of revocation has been rebutted is the character of the testator’s custody over the will.[19] In the present proceeding, the evidence of Ms Jones’ conversation with the deceased two weeks prior to his death suggests that, at that time, the deceased had not yet placed the original will in his safe. This makes it more likely that the absence of the original will has resulted from the will being misplaced or accidentally thrown out, rather than being intentionally destroyed by the deceased with the intention of revoking the will.
[19] Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993) citing Sugden v Lord St Leonards (1876) LR 1 PD 154; Allan v Morrison [1900] AC 604; McCauley v McCauley (1910) 10 CLR 434.
Another factor which is commonly considered in determining whether the presumption of revocation has been rebutted is whether the will makes a careful and complete disposition of the testator’s property. Campbell J in Cahill v Rhodes, drawing on the earlier decisions in Sugden v Lord St Leonards[20] and Finch v Finch,[21] relevantly observed:[22]
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.
[20] Sugden v Lord St Leonards (1876) LR 1 PD 154.
[21] Finch v Finch (1867) LR 1 PD 371.
[22] Cahill v Rhodes [2002] NSWSC 561, [68]; see also, Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993).
In these proceedings, the terms of the propounded copy will are straightforward. The residuary estate is to be divided equally between the deceased’s sole remaining sibling, Ms Jones, and her son, Matthew Jones. The specific disposition of the motor vehicle and boat demonstrates that the deceased took some care in considering the terms of his will.
It is inherently unlikely that the deceased would execute a will with the knowledge that he was terminally ill, only to change his testamentary intentions and destroy that will within the two weeks prior to his death. It is even more improbable that the deceased would fail to notify either his sister or his solicitor of his intention to revoke the will. Mr Warburton, who has acted for the deceased for a number of years, deposed to his belief that if the deceased had intended to change his will, he would have contacted Mr Warburton. There is no evidence indicating that the deceased was unhappy with the contents of his will, or that he had a desire to revoke his will.
In my view, it is highly improbable that the deceased would have destroyed his will with the intention of revoking it. I am satisfied that there is sufficient evidence to rebut the presumption of revocation.
Conclusion
I am satisfied that the copy will the subject of this application is an accurate and complete copy of the original will of the deceased, and that the original will was duly executed on 28 February 2013. There is evidence of the terms of the original will. All persons who would be prejudiced were the application to be granted have consented to the application and are sui juris. I am satisfied that, despite thorough searches, the original will cannot be located. I have reached the conclusion that the presumption of revocation does arise, but that there is sufficient evidence to rebut this presumption.
I order that probate of the last will and testament of Nigel James Brighty dated the 28th day of February 2013 as contained in the copy (being the document marked Exhibit “A” to the affidavit of Graham John Warburton sworn on 22 May 2013) be granted to Bronwyn Louise Jones the sole 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.
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