In the Estate of SHEILA ANN STEPHENS (DECEASED) - [2014] SASC 78

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of SHEILA ANN STEPHENS (DECEASED)
[2014] SASC 78
Judgment of The Honourable Justice Bampton
20 June 2014
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 - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - DOCUMENT NOT EXECUTED BY MAKER
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - ADMINISTRATION WITH WILL ANNEXED - GENERALLY
The deceased died 27 January 2013 – she instructed solicitors in 1998 regarding the creation of a will – she handed a copy of an unexecuted and undated will to her daughter – the propounded will was unsigned and undated – the original has been lost – application for a grant of probate is brought by the deceased’s son – the Court considered the issue of the existence and due execution of the original will, whether the propounded copy was an accurate and complete copy of the original will, and the presumption of revocation.
HELD: the original of the will drafted in 1998 existed and was duly executed – the 1998 document is an accurate and complete copy of the original will – the presumption of revocation is rebutted – probate of the last will and testament of Sheila Ann Stephens dated 1998 as contained in the 1998 document be granted to the applicant limited until the original will or a more authentic copy of it be brought into and left in the Probate Registry of the Supreme Court.
Probate Rules 2004 (SA) r 68, r 77; Administration and Probate Act 1919 (SA); Wills Act 1936 (SA) s 8, referred to.
In the Estate of Hall [2011] SASC 117; Welch v Phillips [1836] 12 ER 828; In the Estate of Gibbs (2012) 115 SASR 183; Sprigge v Sprigge (1868) LR 1 PND 608; Cahill v Rhodes [2002] NSWSC 561; In the Estate of Gwinn (1988) 143 LSJS 153, considered.

In the Estate of SHEILA ANN STEPHENS (DECEASED)
[2014] SASC 78
Testamentary Causes Jurisdiction

BAMPTON J: This is an application for a grant of probate of a will as contained in what is said to be an unexecuted and undated[1] copy of the will pursuant to rule 68 of the Probate Rules 2004 (SA) (“the Probate Rules”).
[1] The will is undated except for the year “1998” which has been typed.
The application was referred to me by the Registrar of Probates pursuant to rule 77 of the Probate Rules.
Sheila Ann Stephens (“Mrs Stephens”) died on 27 January 2013 aged 76 years. At the time of her death, Mrs Stephens was a single woman, having divorced in 1988, not remarried or entered into a domestic partnership. She is survived by her six children, Deane Stephens, Tracey Nicholson, Craig Stephens, Lynton Stephens, Jodi Indraratne and Pedr Stephens.
The application is brought by Mrs Stephens’ eldest child, Deane James Stephens, who is the sole executor named in the propounded document.
The application is supported by the following affidavits:
-Affidavit of Deane James Stephens sworn 12 December 2013 (“the Stephens affidavit”);
-Affidavits of Tracey Dawn Nicholson sworn 13 February 2014 (“the first Nicholson affidavit”) and 6 May 2014 (“the second Nicholson affidavit”).
-Affidavit of Gina Nardone sworn 18 December 2013 (“the Nardone affidavit”);
-Affidavit of Sonia Carmela Berlingeri sworn 9 January 2014 (“the Berlingeri affidavit”);
-Affidavit of Alexander Charles Antic sworn 18 February 2014 (“the Antic affidavit”); and
Background facts
In the first Nicholson affidavit Mrs Stephens’ elder daughter, Tracey Dawn Nicholson (“Mrs Nicholson”), deposes that she was the child who had the most day to day contact with her mother and knowledge of her affairs. Mrs Nicholson deposes that she was particularly close to her mother, who would tell her everything and did not do anything of substance without running it past her first.
Mrs Nicholson deposes that in or around March 1998 her mother told her that solicitors had prepared a new will for her and that she had signed the original will. Mrs Nicholson states that during that conversation her mother gave her a document which is a similar copy of the unexecuted will exhibit DJS-2 annexed to the Stephens affidavit. Mrs Nicholson deposes that exhibit TDN-1 to her first affidavit is a copy of the document her mother handed to her, being her mother’s last will and testament executed on or about 24 March 1998.[2] Mrs Nicholson says that she has never seen a signed copy of the will.
[2] See the first Nicholson affidavit, [6].
Mrs Nicholson deposes to her mother raising the issue of her estate from time to time and telling her that her estate would be “split equally between you children”. The applicant deposes in the Stephens affidavit to similar conversations with his mother and his recollection of her saying her estate would “split between the children”. The applicant states he did not see his mother’s will, presuming it was held by solicitors or was otherwise held in safe custody. He first became aware it was missing during a meeting he and Mrs Nicholson had with the solicitor Alex Antic of Duncan Basheer Hannon in February 2013.
The making of the 1998 document
The applicant’s solicitors, Duncan Basheer Hannon (“the solicitors”), had at the time of Mrs Stephens’ death a deed packet relating to Mrs Stephens.[3] That packet contained a will of Mrs Stephens dated 24 December 1978 and a will of Mrs Stephens dated 1 July 1985.
[3] See the Stephens affidavit.
The solicitors also held a file pertaining to the creation of a will by Mrs Stephens in or about February or March 1998 (“the file”).[4]
[4] See the Berlingeri affidavit.
Ms Nardone deposes in the Nardone affidavit that she was a solicitor employed by the solicitors in 1998. She states that in February/March 1998 the solicitors were offering free wills for members of the Nursing Federation. It would appear Mrs Stephens consulted the solicitors pursuant to this scheme.
Ms Nardone deposes in the Nardone affidavit that she does not recall Mrs Stephens or recall preparing her will. By reference to the file and her notes contained therein, Ms Nardone says it appears she met Mrs Stephens on 26 February 1998 at which time Mrs Stephens provided her with instructions for making a will by way of a completed “standard will and testament questionnaire”.[5] The questionnaire records at question 1 the name “Sheila Ann Stephens” and occupation “registered nurse”. At question 2 the name of the proposed executor is recorded as “Deane James Stephens”. Under the section headed “If you are single please write the full names of your beneficiaries and relationship (if any) to you”, the full names of each of Mrs Stephens’ children are noted. The questionnaire is signed “S A Stephens” and dated 23 January 1998.
[5] See the Nardone affidavit, [5], [7.2], and exhibit GN-1.
Ms Nardone deposes that the will appears to have been drafted and forwarded to Mrs Stephens under cover of a letter dated 3 March 1998.[6] A copy of the letter is exhibit GN-2 to the Nardone affidavit. The letter states:
[6] The Nardone affidavit, exhibit GN-2.
Dear Ms Stephens
WILL
Thank you for instructing this firm to prepare your Will.
Enclosed herewith is a duplicate copy of your Will which represents your instructions to us.
Please read this duplicate copy of your Will carefully to ensure that it complies with your wishes. In particular, would you please check the spelling of all the names used in the Will to ensure that they are correct.
If you are unable to understand any part of the Will, or if it does not comply with your wishes, would you please telephone Gina Nardone of this office to discuss any alterations with her.
If the Will complies with your instructions, would you please telephone and make an appointment to attend at our office to sign the original Will.
We look forward to hearing from you in the near future.
Yours faithfully,
DUNCAN and HANNON
GINA NARDONE.
Ms Nardone deposes, having regard to the solicitor’s file which contains a note on the front of the file which states “orginal [sic] taken by the client 24 March 1998 please close” (“the file note”), that Mrs Stephens attended the solicitor’s offices on 24 March 1998 for the purposes of discussing and signing the will.[7]
[7] At [7.4].
Ms Nardone states that in 1998 her practice was to attend with the testator and her personal assistant to witness the will. It was also her practice to give the client the option of storing the signed will in the solicitors’ office deed packet and to explain the importance to the testator of keeping the signed will safe.
By reference to exhibit DJS-2 to the Stephens affidavit, Ms Nardone notes that the code at the bottom right hand corner of each page of the document, “WIL97\GN\TEMP\WIL97P.192”, suggests that she was the drafter of the will.
Ms Berlingeri, who was Ms Nardone’s personal assistant in 1998, deposes in the Berlingeri affidavit that she has no memory of Mrs Stephens executing a will. Ms Berlingeri confirms the file note “orginal [sic] taken by the client 24 March 1998 please close”, is her handwriting.
She further deposes that in light of her usual practice and upon reviewing the solicitors’ file she believes she and Ms Nardone would have been witnesses to the will and that it is most likely that the original of the will was handed to Mrs Stephens on 24 March 1998.
The evidence suggests that Mrs Stephens was given her executed Will and that she gave the draft she received enclosed in the letter 3 March 1998 to Mrs Nicholson.
The Court had been informed by the solicitor, Mr Antic, that Ms Nardone has told him that in 1998 it was not the solicitors’ practice to keep a photocopy of an executed will. The solicitor confirms that it remains the firm’s practice not to keep copies of executed wills.
Mr Ower counsel for the applicant submitted that whilst it is not clear from the Nardone affidavit, another copy of the 1998 document was kept on the solicitor’s file. He referred to the 3 March 1998 letter (Exhibit GN2 to the Nardone affidavit) which states “Enclosed herewith is a duplicate copy of your Will”. Further, Mr Antic deposes in his affidavit[8] that the “copy Will” referred to in the Stephens affidavit exhibit DJS-2 is a copy of the unsigned will held by the solicitors and not a copy of the unsigned will held by Mrs Nicholson as deposed to in the Stephens affidavit. Mr Ower contended that two copies of the unexecuted will were made, one kept on the file and the other kept by Mrs Nicholson.
[8] The Antic affidavit, [22].
I shall hereafter refer to the document, copies of which were held by the solicitors (exhibit DJS-2) and Mrs Nicholson (exhibit TDN-1) as “the 1998 document”.
The decline in Mrs Stephens’ mental state
In 1998, Mrs Stephens was living at a property at Wynn Vale and in January 2009 she moved to the Lifestyle Retirement Village.
In June 2009, Mrs Nicholson and her brother Lynton noticed that their mother’s mental state had started to deteriorate with the onset of mild dementia.
This was subsequently diagnosed on 9 September 2009 as evidence of a frontal temporal dementia.
Mrs Stephens’ condition deteriorated so much that, in December 2011, she started living with Mrs Nicholson’s family. She continued living with her daughter until August 2012 when she moved into the Canterbury Close Nursing Home.
In 2012, the diagnosis of frontotemporal dementia was confirmed. By March 2012, it was noted that there was a marked decline in Mrs Stephens’ cognitive functions such that “she [was] no longer able to make informed decisions in relation to her financial matters or lifestyle choices”.[9]
[9] See letter Dr Jonathan Symon, 5 March 2012, exhibit TDN-5 to the second Nicholson affidavit.
Upon this diagnosis the enduring powers of attorney and guardianship in Mrs Nicholson’s favour granted in October 2010 were activated.
Mrs Stephens lived at the Nursing Home until January 2013. Following a pulmonary embolism she died on 27 January 2013 at the Lyell McEwin Hospital Hospice. Mrs Stephens did not recover capacity prior to her death.[10]
[10] See the second Nicholson affidavit, exhibit TDN-5.
An executed copy of the 1998 document has not been located since Mrs Stephens’ death.
The 1998 document
The terms of the 1998 document are unexceptional. It is described as the last will of Mrs Stephens which revokes all former wills. It appoints the applicant as an executor and gives Mrs Stephens’ estate to her executor to hold on trust for such of Mrs Stephens’ children as shall survive her in equal shares absolutely. The document bears the typed date “1998” in the execution clause and at the top right hand corner of the back sheet.
The terms of the 1998 document distribute Mrs Stephens’ estate in the same manner as an intestacy under the Administration and Probate Act 1919 (SA).
Rule 68 of the Probate Rules provides for orders to be made admitting a will as contained in a copy to probate in certain circumstances. It provides:
Grants in respect of copies of wills
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.
Provided that where a will is not available owing to its being retained in the custody of a foreign Court or official or a Court or official of any of the Australian States or Territories a duly authenticated copy of the will may be admitted to proof without such order as aforesaid.
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.
The requirements for the admission to probate of a copy of a missing will were considered and summarised by Gray J in In the Estate of Hall, namely:[11]
[11] [2011] SASC 117, [15].
·that the original will existed;[12]
·that the original will was duly executed;[13] 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;[14]
·that there is evidence of the terms of the original will;[15]
·that the copy will is an accurate and complete copy of the original will;[16]
·that thorough searches have been conducted to find the original will,[17] including publishing advertisements regarding the missing original will;[18]
·that the original will revoked all pre-existing wills;[19]
·the circumstances surrounding the absence of the original will;[20]
·that all persons prejudiced by the application, if it is granted, have consented to the application and are sui juris;[21] and
·that the presumption of revocation does not arise or has been rebutted.[22]
(Footnotes in original)
[12] 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.
[13] 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.
[14] See for example, section 12(2) of the Wills Act 1936 (SA); see also, Cahill v Rhodes [2002] NSWSC 561, [53]-[55].
[15] Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 719.
[16] In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; In the Estate of Roediger Deceased [1967] SASR 118, 120.
[17] In the Estate of Engelhardt Deceased [2010] SASC 196, [20].
[18] In the Estate of Roediger Deceased [1967] SASR 118, 120.
[19] Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 718-719.
[20] In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; In the Estate of Roediger Deceased [1967] SASR 118, 120.
[21] In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; In the Estate of Roediger Deceased [1967] SASR 118, 120.
[22] Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 719; Allan v Morrison [1900] AC 604. I return to the presumption of revocation and its implications later in these reasons.
The original will existed and was duly executed
There is no direct evidence of due execution of the 1998 document. I accept on the balance that the logical inference from the evidence of Ms Nardone and Ms Berlingeri as to their usual practice in 1998, together with Mrs Nicholson’s evidence that her mother told her she signed the will, is that the will was executed. I am of the view that the 1998 document was duly executed on 24 March 1998 and witnessed in accordance with s 8 of the Wills Act 1936 (SA).
I find that the 1998 document is accurate and complete evidence of the terms of the original will.
Searches
Mrs Nicholson deposes in her first affidavit to having made extensive searches for the original will.[23]
[23] The first Nicholson affidavit, [38].
In addition, the applicant’s solicitors have made enquiries of Mrs Stephens’ former nursing home where she was a resident, the Commonwealth Bank and Mrs Stephens’ conveyancer.[24]
[24] See the Antic affidavit, [10]-[14].
Other than the 1978 and 1985 wills referred to in the Antic affidavit, no other wills or testamentary documents have been forthcoming.
An advertisement was also published in The Advertiser on 26 November 2013.[25]
[25] See the Antic affidavit, exhibit ACA-3.
In my view thorough searches have been conducted to find the original version of the 1998 document.
Consent
It is submitted that if the original will as contained in the 1998 document were not admitted to probate, the will dated 1 July 1985 would be admitted to probate.
The beneficiaries of the 1 July 1985 will are the children of Mrs Stephens, who otherwise inherit under the 1998 document in any event.
By making her affidavits Mrs Nicholson supports her brother’s application. Mrs Stephens’ other children Craig, Jodi, Lynton and Pedr have provided their consents to the application and are all sui juris.[26]
[26] See the Antic affidavit, exhibit ACA-4.
The circumstances surrounding the absence of the original will
Mrs Nicholson states that at the date of her mother’s move from Wynn Vale to the first retirement village, Mrs Stephens’ duplicate Certificate of Title for the Wynn Vale property could not be located.[27]
[27] See the Antic affidavit, [15].
It is submitted that one possible explanation is that the will was lost during various moves from Wynn Vale, to the retirement village, and then to the nursing home. I find that this is a possible explanation.
The presumption of revocation

The presumption of revocation was described in Welch v Phillips:[28]
If a will, traced to the possession of the deceased and last seen therefore is not forthcoming on his death it is presumed to have been destroyed by him and that presumption must have effect, unless there is sufficient evidence to repel it.
[28] [1836] 12 ER 828, 829.
In In the Estate of Gibbs, Gray J stated:[29]
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”.
[29] (2012) 115 SASR 183, [33].
The presumption does not arise in circumstances where the deceased person suffered a lack of capacity as at the date of his or her death. In such a case, the burden of showing that the will was destroyed whilst the testator was of sound mind lies on the party setting up the revocation, and in the absence of evidence as to the date of the destruction, the contents of the will are entitled to probate.[30]
[30] Sprigge v Sprigge (1868) LR 1 PND 608; In the Estate of Gibbs (2012) 115 SASR 182.
There is no evidence as to the date of destruction.
It is clear by reference to letters dated 5 March 2012 and 23 April 2014 from the consultant psychogeriatrician, Dr Symon,[31] and letters dated 8 March 2012, 9 June 2013, 20 August 2013 and 22 April 2014 from Mrs Stephens’ general practitioner, Dr Allen Cameron, that upon diagnosis of frontotemporal dementia there was no expectation that Mrs Stephens would improve and her subsequent deterioration confirmed that expectation. Further, Mrs Stephens’ Death Certificate records one cause of death as “Alzheimer’s Dementia (Years)”.[32] It is clear that Mrs Stephens suffered a lack of capacity as at the date of her death. As such, it is submitted the presumption does not arise.
[31] See the first Nicholson affidavit, exhibit TDN-2.
[32] See the Stephens affidavit, exhibit DJS-1.
The file note indicates that Mrs Stephens was given possession of the original will on 24 March 1998.
I agree that the following statement of Campbell J in Cahill v Rhodes applies to the circumstances of this matter:[33]
If a testator has a will which makes a careful and complete disposition of property, an examination of the circumstances relevant to the deceased’s testamentary intentions between the time of 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.
[33] [2002] NSWSC 561, [68].
I find it is more likely than not that a reason for the original will being missing is something other than that Mrs Stephens destroyed it with the intention of revoking it.
The totality of the evidence is sufficient to satisfy me that Mrs Stephens did not revoke the original version of the 1998 document by destroying it. I therefore find that the presumption of revocation has been rebutted. Accordingly, it is appropriate to make a grant in respect of the copy of the 1998 document limited until the will or more authentic copy of it be brought into and left in the Probate Registry of the Court.
I order that probate of the last will and testament of Sheila Ann Stephens dated 1998 as contained in the copy (being the document marked TDN-1 to the affidavit of Tracey Dawn Nicholson) be granted to Deane James Stephens the 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.