IN THE ESTATE OF PHYLLIS MAY ENGELHARDT DECEASED - [2010] SASC 196

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
IN THE ESTATE OF PHYLLIS MAY ENGELHARDT DECEASED
[2010] SASC 196
Judgment of The Honourable Justice Sulan
29 June 2010
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 - TESTAMENTARY INSTRUMENTS - WHEN LOST, MISLAID, DESTROYED OR NOT AVAILABLE - IN GENERAL
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 admitting photocopy of deceased's Will and original codicil to probate - original Will lost or misplaced - presumption of revocation of lost Will applies.
Held: Application allowed - presumption of revocation rebutted - photocopy Will and original codicil admitted to probate.
Probate Rules 2004 (SA) (Amendment No 3) r 68, referred to.
McCauley v McCauley (1910) 10 CLR 434; Welch v Phillips (1836) 1 Moo PC 299; In the Estate of Jack Hamilton Gerard Deceased [2007] SASC 362; Whiteley v Clune (No 2) The Estate of Brett Whiteley (13 May 1993) unreported Supreme Court of New South Wales); In the Estate of Roediger Deceased [1967] SASR 118; Cahill v Rhodes [2002] NSWSC 561, considered.

IN THE ESTATE OF PHYLLIS MAY ENGELHARDT DECEASED
[2010] SASC 196
Testamentary Causes Jurisdiction
SULAN J
Introduction

Phyllis May Engelhardt, the deceased, died on 26 May 2007. At the time of her death, Mrs Engelhardt was widowed.
Mrs Engelhardt is survived by her daughters Jillian Beth Harrison, Susan May Matthews and Bronte Kay Nugent, and her son Peter Stanley Engelhardt.
Jillian Beth Harrison and Peter Stanley Engelhardt, the named executors, apply for an order admitting to probate a photocopy of a Will, dated 2 August 1982, and an original codicil, dated 15 May 1996.
The application is supported by affidavits from the daughters, Ms Matthews and Ms Nugent. Other deponents are Richard David Burke, an Estates Manager employed by Finlaysons, solicitors, Patricia May Leedham, a clerk who witnessed the codicil executed on 15 May 1996, and Rodney William Dunne, special counsel, who witnessed the original Will. In making the findings recorded in these reasons, I have acted on the affidavit evidence.
The parties prejudiced by the application are the aforementioned siblings who are the residuary devisees and legatees under the Will. Those parties are the same as would be the case if the deceased were to die intestate, with the exception of the specific legatees named in clause 2 of the Will, being the grandchildren, who would benefit from an order admitting the Will to probate. Further, the codicil provides that “grandchildren” in the Will also include great‑grandchildren.
The facts
Mrs Engelhardt made a Will dated 2 August 1982, which was prepared by Johnson Deegan & Co, who later became part of Finlaysons. It was duly executed. The codicil, dated 15 May 1996, was not prepared by solicitors. However, Ms Leedham, has deposed to due execution of that codicil.
The Will appointed Jillian Beth Harrison and Peter Stanley Engelhardt as executors, and revoked all former wills and testamentary dispositions.
Under the Will, Mrs Engelhardt’s grandchildren are to inherit shares in the ANZ Banking Group Limited, held by her at the date of her death, in equal shares. The residue of the deceased’s estate is to be inherited by her daughters, Jillian Beth Harrison, Bronte Kay Nugent and Susan May Matthews, and her son, Peter Stanley Engelhardt, in equal shares. The codicil extends the definition of grandchildren under the Will to include great-grandchildren.
The originals of both the Will and codicil were in the possession of Mrs Engelhardt prior to her death. The original codicil was located after her death attached to a photocopy of the Will. The original Will has not been found. Only a photocopy of the Will has been found.
Mr Dunne, special counsel, one of the subscribing witnesses to the Will, was an employee of Johnson Deegan & Co Solicitors at the time that the Will was attested. He states that, on 2 August 1982, the deceased executed the Will in his presence and in the presence of Rhonda Grace King, the other subscribing witness.
Patricia Leedham, one of the subscribing witnesses to the codicil of Mrs Engelhardt, states that on 15 May 1996 she and David Brown witnessed the deceased execute the codicil which was found attached to the photocopy of the Will. Ms Leedham states that, at the time of signing the document, it consisted of one page and was not fixed to any other document by any means.
Richard Burke, the Estate’s Manager at Finlaysons, states that Finlaysons had taken possession of Mrs Engelhardt’s Will into safe custody following the merger between the legal firm Johnson Deegan & Co and Finlaysons, on or about December 1990. In a letter dated 24 September 2001, the deceased sought release of the Will. The Will was posted to the deceased on 19 October 2001. The deceased signed and returned Finalysons Security Acknowledgment Advice, acknowledging receipt of the original Will.
The deceased resided with her daughter, Jillian Harrison, at her daughter’s home situated at North Brighton, from 23 November 1980 until her death. The deceased’s personal and testamentary papers were stored in a concertina file on the top shelf of her wardrobe within a room she occupied in Ms Harrison’s home.
Ms Harrison states that she spoke with the deceased in 1996 regarding the deceased’s wish to provide for her great-grandchildren in her Will. The deceased indicated that she would execute a codicil to her Will for this purpose. After the codicil was executed, it was stored in the deceased’s concertina file in her room. Ms Harrison knew of the date that the codicil was signed because the deceased required her daughter to access the concertina file for her whenever she needed the file as she could not reach the top shelf of her wardrobe.
Ms Harrison also deposed that she placed the deceased’s original Will, received from Finlaysons, in the concertina file. Ms Harrison believes that the deceased attached the codicil to her Will by glider clip and kept both documents with her personal papers in her concertina file. She believes that some time after the initial lodgement of the Will in her concertina file, and prior to her death, the deceased removed the glider clip, unstapled her Will, removed the original corner from her Will and then re-stapled the pages of her Will to the codicil, including the original corner, before returning the Will and codicil to the concertina file. No person, other than the deceased, had access to her personal papers without her consent.
Ms Harrison says that the deceased did not discuss any intention to change her Will in any manner after 15 May 1996, and continually confirmed that the document received from Finlaysons was her last Will. It is Ms Harrison’s belief that the deceased did not lose legal capacity between 2001 and her death. Ms Harrison stated that, during this time, many of the deceased’s attending medical practitioners commented to her on how impressed they were by the deceased’s cognizance, ability to understand, and clear communication given by a person of her age. The deceased’s Will and codicil is now, in all respects, in the same plight and condition as when found by Ms Harrison following the death of the deceased on 26 May 2007.
The original Will has not been located following the death of the deceased. Peter Engelhardt and Jillian Harrison believe that the photocopy of the Will, dated 2 August 1982, is a true copy of the Last Will and Testament of Mrs Engelhardt, as subsequently attached by staple to the codicil dated 15 May 1996. Both Mr Engelhardt and Ms Harrison believed that the paper they submitted for probate was the original Will of the deceased, as the deceased had presented that paper to them in that manner when discussing her Will. They were unaware that it was a photocopy, until advised of that by the Registrar of Probates on 25 November 2009. They have no knowledge of the whereabouts of the original Will. Ms Harrison has conducted a thorough search of the deceased’s room, including the concertina file and the deceased’s wardrobe, and no other testamentary document or original Will has been located. Ms Harrison also made enquiries with the deceased’s banks and was advised that there are no documents, safe custody or security packets held on behalf of the deceased.
An advertisement was published in ‘The Advertiser’, a South Australian newspaper, on 12 December 2009, requesting information concerning the whereabouts of a missing Will of Phyllis May Engelhardt. No responses were received to the advertisements.
Legal principles
Rule 68 of the Probate Rules 2004 (SA), provides:[1]
[1] Probate Rules 2004 (SA) (Amendment No 3).
68.01An application for an order admitting to proof … a will contained in a copy … 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.
Before the Court will grant an application of this nature, the Court must be satisfied that an original Will existed and was duly executed, that the original Will has been lost, that sufficient efforts have been made to find the original Will, that the copy Will is an accurate copy, that all persons prejudiced, if the application is granted, have consented and are sui juris, and that the copy document sought to be admitted to probate is a complete copy of the original document.[2]
[2] In the Estate of Roediger Deceased [1967] SASR 118.
The principles to be applied when considering an application with respect to a lost will were discussed by Campbell J in Cahill v Rhodes.[3] Campbell J said:[4]
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.
[3] [2002] NSWSC 561.
[4] Ibid, [55].
These requirements have been met in the present case. It has been established that a Will was made by Mrs Engelhardt on 2 August 1982, which was duly executed and revoked all prior Wills. The photocopy of the Will is an accurate copy. It has also been established that the original codicil to the Will, dated 15 May 1996, was duly executed. All persons who are prejudiced by the application have consented to the application. Those persons are the three daughters and the son of the deceased, each of whom would stand to inherit the ANZ shares upon an intestacy.
The remaining issue for determination is whether the presumption that the Will had been revoked has been rebutted.
If a Will was last seen in the possession of a testator prior to her death, and the original cannot found thereafter, a presumption arises that the testator destroyed the Will with the intention of revoking it.[5] The presumption may be rebutted by appropriate evidence.[6]
[5] McCauley v McCauley (1910) 10 CLR 434; Welch v Phillips (1836) 1 Moo PC 299; In the Estate of Jack Hamilton Gerard Deceased [2007] SASC 362.
[6] Whiteley v Clune (No 2) The Estate of Brett Whiteley (13 May 1993 unreported Supreme Court of New South Wales).
In In the Estate of Jack Hamilton Gerard Deceased,[7] Gray J discussed the presumption and some of the factors which may give rise to rebutting the presumption. He observed:[8]
The onus of rebutting the presumption falls on the party seeking to have the copy will admitted to probate. More recent authorities establish that the appropriate standard of proof is the ordinary civil standard – on the balance of probabilities. However, the evidence to rebut the presumption should be “clear and convincing”. As Campbell J observed in Cahill:
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 …
Where a will cannot be found but a codicil to it is located, there is no presumption that the testator intended to revoke the codicil as well as the will.
The strength of the presumption is said to depend on the character of the testator’s custody of the lost instrument. (Citations omitted)
[7] [2007] SASC 362.
[8] Ibid, [34] – [36].
The Will in this case was drawn by solicitors. It constitutes a complete disposition of the testator’s property. The evidence suggests that it is unlikely that the testator destroyed the Will with the intention of revoking it. She was rather meticulous in storing it. The evidence suggests that she attached the codicil to a copy of the Will. The original codicil was not destroyed.
Conclusion
In this case, the presumption of revocation arises because the original Will appears to have been held by Mrs Engelhardt prior to her death, and the original Will can no longer be found.
In my view, there is sufficiently strong evidence to rebut the presumption of revocation. Mrs Engelhardt’s Will was a careful and complete disposition of her property. The evidence that Mrs Engelhardt did not express any intention of changing her Will or codicil to her family members suggests that she did not intend to revoke them. It is improbable that Mrs Engelhardt wished to change her testamentary intention and die intestate. The fact that a photocopy of the Will with the original codicil attached, and the circumstances surrounding the storage, suggest that it was more probable that the original Will was lost, or misplaced, rather than destroyed in an act of revocation.
I consider that, in all probability, Mrs Engelhardt intended to attach the codicil to the original Will and, somehow, mistakenly attached it to the copy. I am satisfied that it was always her intention that the Will and codicil be valid. I am satisfied that she did not intend to revoke her Will.
I am satisfied that the photocopy Will sought to be admitted to probate is an accurate copy of the last Will of Mrs Engelhardt, and that the original Will was duly executed. I am further satisfied that an appropriate search has been undertaken in order to try and locate the original Will.
Consequently, I order that the photocopy of the Will, dated 2 August 1982, and an original codicil, dated 15 May 1996, be admitted to probate.