In the Estate of ROBERT EDMONDS (DECEASED) - [2016] SASC 41

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Estate of ROBERT EDMONDS (DECEASED)
[2016] SASC 41
Judgment of The Honourable Justice Stanley
24 March 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
Application for a grant of Letters of Administration on the ground that the deceased died intestate.
Robert George Edmonds (the deceased) was last seen alive on 6 March 2013 and his body was found in his residence at 1/11 Hawthorn Crescent, Hazelwood Park, on 10 March 2013. He was 66 years of age at the time of his death. He had suffered from schizophrenia for many years for which he was prescribed medication. He left an estate valued in a sum of approximately $265,000. The deceased died without having married, without children, and his parents are deceased. He was survived by three siblings, namely, Sandra Ann Edmonds, Phillip Maurice Edmonds and Stephen Mark Edmonds. The application was made by his sister, Sandra Ann Edmonds. Following his death a search of his residence led to the discovery of a copy of a will made by the deceased on 13 October 1997.
Held (allowing the application):
1. The presumption of revocation arises and has not been rebutted (at [27]).
2. There is no person with a greater entitlement than the applicant to seek a grant of Letters of Administration of the deceased’s intestate estate. There are no persons of the type referred to in r 34(1)(a) – (c) inclusive of the Probate Rules 2015 (at [28]).
3. A grant may be made to the applicant without notice to other persons entitled in the same order of priority pursuant to r 37(1) of the Probate Rules (at [28]).
4. Letters of Administration of the deceased's estate be granted to the applicant (at [29]).
Wills Act 1936 (SA) s 8; Probate Rules 2015 (SA) r 34(1)(a), (b), (c), r 37(1), referred to.
Welch v Phillips [1836] 12 ER 828; In the Estate of Gibbs (2012) 115 SASR 182; Whiteley v Clune (No. 2); the Estate of Brett Whiteley 13 May 1993, unreported, Supreme Court of New South Wales; In the Estate of Yiossis [2011] SASC 99, considered.

In the Estate of ROBERT EDMONDS (DECEASED)
[2016] SASC 41
Testamentary Causes Jurisdiction
STANLEY J:
Introduction

This is an application for a grant of Letters of Administration on the ground that the deceased died intestate.
Robert George Edmonds (the deceased) was last seen alive on 6 March 2013 and his body was found in his residence at 1/11 Hawthorn Crescent, Hazelwood Park, on 10 March 2013. He was 66 years of age at the time of his death. He had suffered from schizophrenia for many years for which he was prescribed medication. He left an estate valued in a sum of approximately $265,000.
The deceased died without having married, without children, and his parents are deceased. He is survived by three siblings, namely, Sandra Ann Edmonds, Phillip Maurice Edmonds and Stephen Mark Edmonds.
This application is made by his sister, Sandra Ann Edmonds.
Following his death a search of his residence led to the discovery of a copy of a will made by the deceased on 13 October 1997 (“the 1997 will”).
To be satisfied that the deceased died intestate, it will need to be established that the deceased had revoked the will made by him on 13 October 1997.
The application was supported by affidavits from the applicant, the applicant’s solicitor, Emma Alexandra Wilkinson, and the manager of the Coroner’s Court, Michele Kathleen Bayly-Jones. In making findings, I have acted on this affidavit evidence.
The 1997 will
By the terms of the 1997 will the deceased appointed the applicant to be his executor and trustee. A specific bequest was made of real property, situated at 59 Seventh Avenue, St Morris, and all contents therein, to the Woodville High School Foundation Inc. The residue of the estate was left to any wife or children the deceased had at the date of his death in equal shares and if only one then for that one solely absolutely, and in the event that the deceased died without marrying and not having any children, then the residue of the estate was to be distributed equally amongst the deceased’s siblings, Phillip Maurice Edmonds, Stephen Mark Edmonds and Sandra Anne [sic] Edmonds.
The 1997 will was prepared by the deceased’s solicitors, Johnston Withers. It was executed in accordance with the formalities required by s 8 of the Wills Act 1936 (SA). Johnston Withers wrote to the deceased by letter dated 20 October 1997 providing him with a copy of the signed 1997 will. The letter confirmed the deceased’s instructions that the original of the 1997 will was to be kept in the firm’s deed packet safe and was available at any time upon request by the deceased.
Records kept by Johnston Withers indicate that the deceased collected the original 1997 will from the firm on 29 October 2010.
Johnston Withers have a record signed by the deceased on 29 October 2010. The record was printed the same day and appears to bear the deceased’s signature. It also appears to be dated by him that day. The record notes that the relevant deed packet, which was number 001849, was “borrowed” by a staff member of Johnston Withers, Carly Malycha, that day. The record says, “Client coming in to collect”. The record indicates that four items were in the deed packet including the 1997 will.
It appears from the record that the original 1997 will was collected by the deceased from Johnston Withers on 29 October 2010 and not returned to that firm subsequently. The firm does not retain custody of the original 1997 will. The applicant does not know what became of the original 1997 will after the deceased took custody of it on 29 October 2010.
The deceased’s mental capacity
The evidence is that in the period between 29 October 2010 and the deceased’s death, the deceased retained capacity at all times despite suffering from schizophrenia. The applicant last spoke with the deceased in or about February 2013. At that time the deceased was concerned about an upcoming operation. This was for prostate surgery. While the applicant was aware that the deceased suffered from schizophrenia, she understood his condition was kept under control by medication. She deposes to the fact that, following her conversations with him, she was not concerned about the deceased’s mental health. Subsequent to the death of the deceased, the applicant spoke to many of his friends. Nothing that was said in those conversations disclosed any concern they harboured regarding the deceased’s mental health. The applicant deposes to there being nothing of which she was aware that would indicate that the deceased was not sui juris at the date of his death or in the months leading up to his death.
The missing will
A police officer attended at the deceased’s residence on the day his body was discovered and noted that the premises contained a very large volume of mail and other correspondence piled up throughout the unit. The police officer located a copy of the 1997 will. The police officer and another officer returned to the premises the following day where they remained in the living room sorting through personal papers for about 20 minutes.
A few days later the applicant arranged for a cleaner to attend at the deceased’s residence. While the cleaner located some personal documents of the deceased including bills, correspondence, documents, financial statements, bank statements and an original loan agreement and an original deed of mortgage between the deceased and Elizabeth Joyce Blake dated 25 January 2008, she did not find the original of the 1997 will. She did, however, locate a copy of the will in a zipped folder in the kitchen of the deceased’s residence.
It is notable that the loan agreement and the deed of mortgage were found in the deceased’s residence after his death. These two items were in the deed packet kept by Johnston Withers collected by the deceased on 29 October 2010. The remaining items in the deed packet were the original 1997 will and the duplicate certificate of title volume 5058 folio 272 being the title to the deceased’s residence at Hazelwood Park.
Further searches were undertaken by the applicant for the purpose of locating the original of the 1997 will. Those searches were an advertisement placed in The Law Society Bulletin in late 2013 and an advertisement placed in The Advertiser newspaper at the same time. Neither advertisement resulted in any response being received. Enquiries were also made by the applicant with the People’s Choice Credit Union. Those enquiries revealed that the credit union held the duplicate certificate of title for the deceased’s residence but the credit union did not hold the original 1997 will.
The original of the 1997 will has not been located since the death of the deceased.
Persons entitled to the deceased’s estate if he died intestate
The deceased died a bachelor without issue and without a parent surviving him. He is survived by his three siblings, namely, the applicant and her brothers, Phillip and Stephen. All persons entitled to participate in the distribution of the estate are sui juris. If the deceased died intestate the persons who would be entitled to the intestate estate of the deceased are the applicant and her two siblings exclusively.
Presumption of revocation of the 1997 will by the deceased by destruction
The original of the 1997 will has not been found despite extensive enquiries being made to locate the document. The applicant submits that in these circumstances the court should presume that the deceased had destroyed the original 1997 will with the intent of revocation. The applicant submits that there is insufficient evidence before the court to rebut the presumption of revocation by destruction. The presumption was described in Welch v Phillips[1] 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 …
[1] [1836] EngR 1157; [1836] 12 ER 828 at 829 cited by Griffiths CJ and O’Connor J in the High Court in McCauley v McCauley [1910] HCA 16, (1910) 10 CLR 434 at 438 and 446.
In In the Estate of Gibbs[2] Gray J made the following observations regarding the rebuttal of the presumption:[3]
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].
[2] [2012] SASC 230, (2012) 115 SASR 182.
[3] [2012] SASC 230 at [31], (2012) 115 SASR 182 at 190.
Where the presumption arises, the strength of the presumption depends on the character of the testator’s custody over the will.[4] In In the Estate of Yiossis[5] Gray J observed:[6]
The strength of the presumption of revocation is said to depend on the character of the testator’s custody over the lost instrument. 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.
[Citations omitted].
[4] Whiteley v Clune (No. 2); the Estate of Brett Whiteley, 13 May 1993, unreported, Supreme Court of New South Wales, Powell J.
[5] [2011] SASC 99.
[6] [2011] SASC 99 at [20].
Considering all of the evidence in this matter in its totality there is nothing to displace the operation of the presumption of revocation of the 1997 will by destruction by the deceased. It is clear on the evidence that the deceased took the original of the 1997 will into his custody from his solicitors on 29 October 2010. Accordingly, the original of the 1997 will can be traced into the custody of the deceased prior to his death. Subsequently it has not been forthcoming. This gives rise to the presumption. The evidence does not rebut the presumption that the deceased retained custody of the will from that date until some date subsequent upon which it is presumed he destroyed the will with the intention of revocation. There is good reason to suppose that the deceased intended to revoke the 1997 will. By 29 October 2010 the specific bequest of the real estate at 59 Seventh Avenue, St Morris, was otiose. The evidence establishes that this property, which had been the deceased’s residence, was sold by the deceased with settlement on the sale occurring on or about 22 January 2007. Thereafter the proceeds of the sale (if there were any) fell into the residue of the deceased’s estate.
I cannot exclude the possibility that the deceased may have understood that he no longer required the 1997 will, as the distribution of his residuary estate to his siblings was no different from the position which applies on intestacy. If so, the destruction of the original of the 1997 will appears rational and logical.
There is no evidence that the deceased made any other will after the 1997 will. On that basis I can exclude the possibility that the deceased destroyed the 1997 will in the belief that he had made another will. There is no evidence to suggest that the deceased claimed still to have a will at any time between the taking custody of the original of the 1997 will on 29 October 2010 and the time of his death in March 2013. Accordingly, there is an absence of evidence of the deceased professing not to have revoked his will. There is also an absence of evidence to suggest that the deceased would have been physically unable to revoke his will by destruction. There is also the absence of any evidence to suggest that any third party had the opportunity or motive to destroy the original 1997 will without the knowledge or approval of the deceased, or could have done so after the death of the deceased.
I am satisfied on the evidence that the possibility of the original of the 1997 will was lost due to inadvertence can be excluded. The volume of personal papers found upon the deceased’s death tends to suggest that he had a tendency to hoard papers or, as in the case of important documents such as the duplicate certificate of title, to secure them with an appropriate institution such as a bank, other financial institution or solicitor.
I am satisfied that the presumption of revocation arises and has not been rebutted. Accordingly, I find that the deceased died intestate.
Applicant has equal priority to seek a grant of Letters of Administration
There is no person with a greater entitlement than the applicant to seek a grant of Letters of Administration of the deceased’s intestate estate. There are no persons of the type referred to in r 34(1)(a) – (c) inclusive of the Probate Rules 2015. The applicant has an equal priority to seek the grant with her two siblings. A grant may be made to the applicant without notice to other persons entitled in the same order of priority pursuant to r 37(1) of the Probate Rules. There is therefore no reason why the Court should not order that Letters of Administration of the deceased’s estate issue to the applicant.
In the circumstances I make the following orders:
1.The presumption that the will of Robert George Edmonds, deceased, who was last seen alive on 6 March 2013, and whose dead body was found at Hazelwood Park in the State of South Australia (“the deceased”) dated 13 October 1997 was destroyed by the deceased is not rebutted.
2.Letters of Administration of the deceased’s estate be granted to Sandra Ann Edmonds.
3.The estate of the deceased is to bear the costs of this application.