In the Estate of WILLIAM EDWARD DODDS (DECEASED) - [2013] SASC 56

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of WILLIAM EDWARD DODDS (DECEASED)
[2013] SASC 56
Judgment of The Honourable Justice Gray
19 April 2013
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - ADMINISTRATION WITH WILL ANNEXED - GENERALLY
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 - TESTAMENTARY INSTRUMENTS - TESTAMENTARY CHARACTER - PARTICULAR DOCUMENTS
SUCCESSION - MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - NO REASONABLE DOUBT MAKER INTENDED DOCUMENT AS WILL
Application for a grant in respect of the deceased's estate - following the deceased's death, two documents were located which were potentially testamentary in nature - one was the original version of what appeared to be a duly executed will from 1998 - the other was a copy of a handwritten letter from 2009 - the original 2009 document could not be found - whether the 2009 document constituted an informal will pursuant to section 12(2) of the Wills Act 1936 (SA) - if so, whether the 2009 document impliedly revoked the 1998 will - whether a grant could be made in respect of the copy of the 2009 document - if so, whether a grant of letters of administration with the will annexed was the appropriate type of grant to be made.
Held: The 2009 document was an informal will which was capable of being the subject of a grant - the deceased intended for the 2009 document to revoke the 1998 will - letters of administration with the copy of the 2009 document annexed was 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.
Wills Act 1936 (SA) s 8, s 12, s 12(2), s 12(3) and s 22, referred to.
In the Estate of TLB (2005) 94 SASR 450; In The Estate of Graham, deceased (1978) 20 SASR 198; In the Estate Williams, deceased (1984) 36 SASR 423; In the Estate of Hall (deceased) [2011] SASC 117; In the Estate of Kolecki (deceased) [2011] SASC 158; In the Estate of Koutsouliotis (deceased); Koutsouliotas v Koutsouliotis [2012] SASC 196; In the Estate of Gibbs (deceased) [2012] SASC 230; In the Estate of Engelhardt Deceased [2010] SASC 196; In the Estate of Roediger Deceased [1967] SASR 118; Cahill v Rhodes [2002] NSWSC 561; Curley v Duff (1985) 2 NSWLR 716; In the Will of 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; Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993); Colvin v Fraser (1929) 2 Hag Ecc 266; In the Estate of Gerard Deceased (2007) 251 LSJS 176; Sugden v Lord St Leonards (1876) LR 1 PD 154; Finch v Finch (1867) LR 1 P & D 371; In the Estate of Ryan (1987) 139 LSJS 42; Romascu v Manolache [2011] NSWSC 1362; Re Shepherd (deceased) [2002] QSC 098; Re McComb [1999] 3 VR 485; Re Pryse (deceased) [1904] P 301; In the Goods of Oliphant (1860) 1 Sw & Tr 525; Gordon v Beere [1962] NZLR 257, considered.

In the Estate of WILLIAM EDWARD DODDS (DECEASED)
[2013] SASC 56
Testamentary Causes Jurisdiction
GRAY J.

This is an application for a grant in respect of the estate of William Edward Dodds, the deceased. As will become evident later in these reasons, the deceased’s son, William George Dodds, seeks different types of grants depending on the factual findings of the Court.
Introduction
On 15 October 2011, the deceased died aged 78 years. He was survived by his three adult children, Linda Jean Dodds, Katherine Joan Dodds and the applicant. They are all sui juris. The deceased’s wife, Elizabeth Anne Dodds, predeceased him.
The deceased’s estate comprises real estate in Mount Gambier estimated to be valued at $220,000.00 and the deceased’s personal estate estimated to be valued at $33,121.34, which includes household contents, furniture and personal effects, money in bank, cash and four motor vehicles. The deceased’s estate has a liability of $11,139.61 for funeral expenses, bringing the net value to $241,981.73.
Following the deceased’s death, two documents were located which may be testamentary in nature. One is the original version of a document dated 11 August 1998. It appears to be a duly executed will. Under this document, the deceased’s estate would be distributed equally between his three children as his wife predeceased him.
The second document which was located after the deceased’s death was handwritten and was addressed to Herman Bersée Solicitors. The original version of this document has not been found. A copy is in the following terms:
Herman Bersee   William E. Dodds
Solicitors       38 Coolabah Street
29 Bay Road  Mount Gambier
Mt Gambier  5290
5290
18.10.09
I William Edward Dodds of 38 Coolabah Street, Mount Gambier South Aust 5290.
This is my last will and testomy [sic] and I am of in sound mind and judgment, that I divide my proberty [sic] and assetts [sic] to my son William George Dodds, my daughters Linda Jean Dodds and Katherine Joan Dodds one third share to each of my assetts [sic], including my house at 38 Coolabah Street Mt Gambier A 6 X 4 steel trailer at my residence I wish that Katherine takes possession of as it did belong to her when I purchased it from her.
I want William George Dodds to take possession of all my workshop equipment, tools etc, also I would like William G. Dodds to take possession of my Mazda 4 wheel drive dual cab, also my 6X4 wooden trailer.
My house effects to be sold on split up between my 3 children also I would like to give my 3 children a set of bagpipes each. The other motor vehicles that are at my residence which I own are to be sold or if my children would like them they can have them pick.
I have about $14000.00 in a money box which I want some of it to pay my funeral expenses. The rest to be divided equally amongst my three children and what cash I have in the bank. The state bank of South Aust.
Signed [William E. Dodds] 20.10.09
Ennio Michael Zanfagna JP
Justice of the Peace for the State of SA
No. 21943
4 Old Kent Court Mt Gambier SA 5290     [signed]     20/10/09
Searches have been conducted for other documents which may be testamentary in nature, including at the National Australia Bank, at Australian Executor Trustees, at the Public Trustee, at Perpetual Trustees and with an accounting service which had advised the deceased. Enquiries were also made at a number of firms of solicitors in Mount Gambier. No other testamentary documents have been located.
On 4 May 2012, the deceased’s son made an application for letters of administration on the basis that the deceased had died intestate. Subsequently, on 16 January 2013, the applicant issued a summons seeking that the copy of the 2009 document be admitted to proof and that a grant of letters of administration with the will annexed be made to the applicant or, in the alternative, that the 1998 document be admitted to probate.
The applicant has advised that by mutual agreement, he and his sisters have done as they believe the deceased intended and have done as much as can be accomplished without a grant of administration or probate. They have taken the personal property they wanted, sold the rest and deposited the proceeds in the trust account at Downs Lawyers. As to the bagpipes, they have agreed that all three sets will stay with the applicant, the family heirloom set being the only set that has any monetary value.
The Registrar of Probates referred the matter pursuant to rule 77 of the Probate Rules 2004 (SA).
A number of issues arise in the present proceeding:
-whether the 2009 document constitutes an informal will pursuant to section 12(2) of the Wills Act 1936 (SA);
-if so, whether the 2009 document impliedly revoked the 1998 will;
-whether a grant can be made in respect of the copy of the 2009 document;
-if so, whether a grant of letters of administration with the will annexed is the appropriate type of grant to be made.
I propose to address these issues in turn.
An Informal Will
The 2009 document was not executed in accordance with the requirements of section 8 of the Wills Act. Section 8 provides:
Subject to this Act, no will is valid unless it is in writing and executed in the following manner:
(a)     it must be signed by the testator or by some other person in the testator's presence and by the testator's direction; and
(b)     it must appear, on the face of the will or otherwise, that the testator intended by the signature to give effect to the will; and
(c)     the signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d)     the witnesses must attest and sign the will (but no form of attestation is necessary); and
(e)     the signatures of the witnesses must be made or acknowledged in the presence of the testator (but not necessarily in the presence of each other).
In the present proceeding, only one witness signed the 2009 document.
Section 12(2) of the Wills Act sets out the requirements that need to be satisfied for a will to be admitted to probate notwithstanding that it has not been executed in accordance with the statutory formalities of the Act. Section 12(2) has been amended on a number of occasions. I adopt and treat as paragraphs of these reasons the summary of the legislative history of section 12(2) as set out in In the Estate of TLB.[1] Section 12(2), in its present form and as relevant to these proceedings, provides:
Subject to this Act, if the Court is satisfied that—
(a)     a document expresses testamentary intentions of a deceased person; and
(b)     the deceased person intended the document to constitute his or her will,
the document will be admitted to probate as a will of the deceased person even though it has not been executed with the formalities required by this Act.
[1]    In the Estate of TLB (2005) 94 SASR 450, [20]-[28].
Section 12(2) of the Wills Act removes the harsh consequence that testators will die intestate if their will has not met the formalities required in section 8 of the Act. The section allows a document to be admitted to probate notwithstanding non-compliance with the statutory formalities, providing the court is “satisfied” of the matters specified in the section. As Jacobs J observed in In the Estate of Graham, deceased:[2]
… But if there is one proposition that may be stated with reasonable confidence, it is that s 12(2) is remedial in intent, that is to say, that its purpose is to avoid the hardship and injustice which has so often arisen from a strict application of the formal requirements of a valid will, as dictated by s 8 of the Act. This conclusion is, I think, clearly justified upon a review of the legislative history of the relevant sections of the Act, and the cases.
[2] In The Estate of Graham, deceased (1978) 20 SASR 198, 202.
The observations of King CJ in In the Estate of Williams, deceased are also relevant:[3]
Section 12(2) is a remedial provision designed to avoid failure of the testamentary purpose caused by non-compliance with the formalities required by s 8 arising out of ignorance or inadvertence. There is no reason to suppose that Parliament intended to limit the circumstances in which the remedial provision would operate and no reason for the Court to construe the sub-section other than in accordance with the natural meaning of the words used.
[3] In the Estate Williams, deceased (1984) 36 SASR 423, 425.
The Court must be satisfied that the document sought to be admitted to probate expresses the testamentary intentions of the deceased and that the deceased intended the document to constitute his or her will.
The applicant gave evidence of a conversation that he had with the deceased prior to Christmas 2010 which is relevant to the deceased’s testamentary intentions. The applicant deposed that the deceased said words to the effect that if anything were to happen to him, the applicant should go to Herman Bersée as Mr Bersée had the will that he had made when he was in hospital in 2009.
In the same conversation, the deceased was said to have indicated that everything was to be divided equally; the house sold and the contents shared equally, and the “leftovers” sold and the money divided equally. The deceased indicated that he wanted the set of bagpipes that were a family heirloom and a set of Stirling silver mounts on the drones to be kept by “one of us”, preferably the applicant and his descendants. The other two sets of bagpipes, a half-sized “kids” set and a working set, were to be sold if no one wanted them. The applicant deposed that the deceased further indicated that the applicant was to have the “ute”, which was said to be a reference to the Mazda Bravo, that the deceased’s daughter, Katherine, was to have the trailer that the deceased had bought from her and that the deceased’s other vehicles – a caravan, a trailer, his 1975 Toyota and his 1985 Toyota – were to go to whichever of his children wanted them. If none of his children wanted those vehicles, they were to be sold. The deceased’s daughters, Katherine and Linda, also had similar conversations with the deceased about the will that he had made at the hospital.
It is to be recalled that in the 2009 document, the deceased used the phrase “[t]his is my last will” and that he divided his estate equally between his children, subject to a few particular items of property which have been bequeathed to particular children. The 2009 document relevantly provides:
… A 6 X 4 steel trailer at my residence I wish that Katherine takes possession of as it did belong to her when I purchased it from her.
I want William George Dodds to take possession of all my workshop equipment, tools etc, also I would like William G. Dodds to take possession of my Mazda 4 wheel drive dual cab, also my 6X4 wooden trailer.
… also I would like to give my 3 children a set of bagpipes each. …
In my view, it is clear from the terms of the 2009 document in combination with the evidence of the deceased’s conversations with his children that the 2009 document expresses the deceased’s testamentary intentions.
It is evident that the disposition of the deceased’s estate as described in the conversation deposed to by the applicant largely reflects the terms of the 2009 document. The primary differences being that the 2009 document contains a bequest of the second trailer and the workshop equipment to the applicant and a bequest of one set of bagpipes to each of the children.
I turn now to consider whether the deceased intended the document to constitute his will. There are three factors which provide strong support for an answer in the affirmative. The first is the reference to “[t]his is my last will”. The second is a copy of a letter which was found among the deceased’s papers. The original version of the letter has not been located. The letter is handwritten and provides:
William E. Dodds
38 Coolabah St
Mt Gambier
5290
Monday October 19^th
Dear Herman,
At the present moment I am a patient in the surgical ward at the Mt Gambier hospital. I have been a patient for 3 weeks now, I have to have a serious operation and could have to go to adelaide for the operation.
I have written out my will as Im [sic] not able to go to your office to have it done properly. Ive [sic] had a J.P. who works at the hospital sign my will, hope this is all in order.
So I hope you can sort it out if its [sic] not right.
Thank you Herman
Yours Faithfully
William E. Dodds
It can be inferred that the “will” referred to in the letter is the 2009 document.
The third factor is the statement by the deceased to the applicant that Mr Bersée had the will that he made in hospital in 2009. This provides a strong indication that the 2009 document was intended by the deceased to constitute his will.
It is unusual for a person, having previously instructed solicitors to prepare a will and having duly executed that will, to then subsequently prepare his or her own will. However, in the present proceeding, there is a ready explanation for this. The deceased was a patient in hospital and had been there for some time. A serious operation was said to be imminent. The deceased was apparently unable to leave the hospital to instruct his solicitors to prepare a will for him. Instead, it appears that he prepared his own will and sought confirmation of its validity by writing an explanatory letter and sending it to his solicitors. In these circumstances, I have no doubt that the deceased intended the 2009 document to constitute his will.
I am, therefore, satisfied that the requirements in section 12(2) of the Wills Act have been met. Subject to the issues to be discussed below, the 2009 document is an informal will which is capable of being the subject of a grant.
A Lost Will
As mentioned earlier, the original version of the 2009 document has not been found. Before a grant can be made in respect of a copy will, the court must take into account a number of considerations. I summarised those considerations in In the Estate of Hall (deceased):[4]
[4]    In the Estate of Hall (deceased) [2011] SASC 117, [15]; subsequently considered in In the Estate of Kolecki (deceased) [2011] SASC 158, In the Estate of Koutsouliotis (deceased); Koutsouliotas v Koutsouliotis [2012] SASC 196 and In the Estate of Gibbs (deceased) [2012] SASC 230.
·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.

As mentioned earlier, I am satisfied that the document is an informal will in accordance with section 12(2) of the Wills Act. Ennio Michael Zanfagna, the attesting witness to the 2009 document, provided evidence of the existence of the original document. He also gave evidence that the copy of the 2009 document is a true and accurate copy of the original. Accordingly, there is evidence of the terms of the original.
The 2009 document was located by the applicant in a tin box in the lounge room of the deceased’s home. The original version of the document was not present in the tin box and was not located in other searches of the deceased’s home. Nor was the original version located in searches at the National Australia Bank, at Australian Executor Trustees, at the Public Trustee, at Perpetual Trustees, at an accounting service which had advised the deceased or at a number of firms of solicitors in Mount Gambier. Although there have been no advertisements published, in my view, these searches were sufficiently thorough to satisfy me of the relevant consideration identified in In the Estate of Hall (deceased).[16]The letter format of the will makes it likely that it was with either Mr Bersée or the deceased, rather than with a member of the general public. In those circumstances, I do not consider it necessary for an advertisement to have been published.
[16] In the Estate of Hall (deceased) [2011] SASC 117.
The persons prejudiced by the present application are the deceased’s other children, Katherine and Linda. They are both sui juris and have consented to a grant being made to the applicant either as administrator or as executor.
Revocation of Pre-Existing Wills
Section 22 of the Wills Act is concerned with the revocation of wills and other testamentary documents. It 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.
Section 12(3) of the Wills Act provides:
If the Court is satisfied that a document that has not been executed with the formalities required by this Act expresses an intention by a deceased person to revoke a document that might otherwise have been admitted to probate as a will of the deceased person, that document is not to be admitted to probate as a will of the deceased person.
The 2009 document does not contain a revocation clause. However, the document disposes of the entirety of the deceased’s estate and contains the phrase “[t]his is my last will”. It can, therefore, be inferred that the deceased intended for the 2009 document to revoke his earlier wills, including his 1998 will. Further, as noted above, the 2009 document complies with the requirements of section 12(2) of the Wills Act. In my view, pursuant to section 22(c) of the Wills Act, the 2009 document revokes all prior wills and testamentary dispositions.
This conclusion leads to the result that if a grant is not made in respect of the 2009 document due to an issue that arises later in these reasons, section 12(3) of the Wills Act has application, preventing the 1998 document from admission to probate. In those circumstances, the deceased would have died intestate.
The Presumption of Revocation
The final consideration to which I now turn is the presumption of revocation. Lord Wensleydale conveniently described the presumption in Welch v Phillips in the following terms:[17]
…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. …
[17] Welch v Phillips (1836) 1 Moo PC 299, 302 cited by Griffiths CJ and O’Connor J in the High Court in McCauley v McCauley (1910) 10 CLR 434, 438, 446.
In the present proceeding, the 2009 document was executed while the deceased was a patient in the Mount Gambier Hospital. He had been a patient in there for a few weeks. The attesting witness, Mr Zanfagna, was a Justice of the Peace who was an employee of the Mount Gambier and District Health Services. He deposed that there had to have been some urgency in respect of his attendance on the deceased in order for his services as a Justice of the Peace to have been called on.
Mr Zanfagna deposed that the deceased showed the original 2009 document to him and said it was the deceased’s will. Mr Zanfagna witnessed the deceased sign and date the original document. Mr Zanfagna then signed, stamped and dated the document and left the original version of the document with the deceased. Mr Zanfagna did not photocopy the document or otherwise handle it. He deposed that this accorded with the usual practice and internal protocols of the hospital regarding such documents; namely, that staff are not to handle documents of that kind, not to keep copies and not to otherwise engage in taking possession of such documents for any purpose whatsoever. To the best of Mr Zanfagna’s recollection, the original document remained with the deceased.
The only other evidence concerning the location of the original will was the handwritten letter set out earlier in these reasons. It is to be recalled that the letter relevantly provides:
Dear Herman,
At the present moment I am a patient in the surgical ward at the Mt Gambier hospital. I have been a patient for 3 weeks now, I have to have a serious operation and could have to go to adelaide for the operation.
I have written out my will as Im [sic] not able to go to your office to have it done properly. Ive [sic] had a J.P. who works at the hospital sign my will, hope this is all in order.
So I hope you can sort it out if its [sic] not right.
Thank you Herman
[Emphasis added.]
One inference that can be drawn from the use of the phrase “[s]o I hope you can sort it out if its [sic] not right” is that the original 2009 document was enclosed with the letter. Alternatively, it is also open to infer that a copy of the 2009 document was enclosed or that nothing was enclosed.
It is to be recalled that in a conversation with the applicant, the deceased indicated that Mr Bersée had the will he had made while he was in hospital in 2009. However, Mr Bersée informed the applicant’s solicitor by letter that he does not have any recollection of receiving a letter addressed to him from the deceased and that he does not have any record of having received anything from the deceased or of ever holding any documents on the deceased’s behalf. This suggests that Mr Bersée did not receive the letter and the enclosed 2009 document, if it was in fact enclosed. In my view, the evidence, therefore, suggests that the deceased was the last person in possession of the original version of the 2009 document. In these circumstances, the presumption of revocation arises.
The presumption of revocation is a presumption which may be rebutted by sufficient evidence.[18] It is the applicant who has the onus of rebutting the presumption.[19] 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”.[20]
[18] 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 (1929) 2 Hag Ecc 266; Welch v Phillips (1836) 1 Moo PC 299; In the Estate of Gerard Deceased (2007) 251 LSJS 176, [32].
[19] 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.
[20] Gordon v Beere [1962] NZLR 257, 266.
One factor which is commonly considered when determining whether the presumption of revocation has been rebutted is the character of the testator’s custody over the will.[21] The meaning of the “character of the testator’s custody” refers to facts concerning the physical arrangements the testator has for secure storage of the will; including, whether the will is kept in a locked place, the arrangement with respect to keys to access the will, whether other people know where the will is located and the extent of care and protection over the will exhibited by the testator.[22] In the present proceeding, little weight can be placed on this factor as the location in which the original version of the 2009 document was stored after the deceased had signed it in hospital is unknown. The evidence does not allow a finding that the original document was sent to Mr Bersée. All that is known is that the copy of the 2009 document was located in the lounge room of his home in a tin box.
[21] 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.
[22] See, Cahill v Rhodes [2002] NSWSC 561, [59].
Another factor which is often considered when determining whether the presumption of revocation has been rebutted is whether the will makes a careful and complete disposition of the testator’s property. In Cahill v Rhodes, Campbell J, drawing on the earlier decisions in Sugden v Lord St Leonards[23] and Finch v Finch,[24] made the following relevant observations:[25]
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.
[23] Sugden v Lord St Leonards (1876) LR 1 PD 154.
[24] Finch v Finch (1867) LR 1 P & D 371.
[25] 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).
Although it was suggested by Mr Zanfagna that there were circumstances of some urgency in respect of the execution of the deceased’s will, it is clear from its terms that the deceased had carefully considered the bequests within the 2009 document. He identified particular items of property for particular beneficiaries. Further, the evidence suggests that the deceased had at least two days to consider the will, as the top of the document is dated 18 October 2009 but it was not executed until 20 October 2009.
It is to be recalled that in the deceased’s conversation with the applicant at some time prior to Christmas 2010, the deceased indicated that if anything were to happen to him, he had prepared a will while he was in hospital in 2009 and that the applicant should obtain the will from Mr Bersée. This suggests that, at the time of the conversation, the 2009 document was still in existence and had not been revoked by destruction on the part of the deceased. The deceased’s understanding of the distribution of his estate as described to the applicant in that conversation is generally consistent with the terms of the 2009 document. This supports the inference that the document discussed in the conversation was the 2009 document.
The beneficiaries in the 2009 document are the deceased’s three children. There is nothing in the evidence which indicates a breakdown in the deceased’s relationship with any of his children.
The totality of the evidence is sufficient to satisfy me that the deceased did not revoke the original version of the 2009 document by destroying it. It is, therefore, my view that the presumption of revocation has been rebutted. Accordingly, subject to one further matter discussed below, it is appropriate to make a grant in respect of the copy of the 2009 document, limited until the original will or a more authentic copy of it be brought into and left in the Probate Registry of this Court.
The Failure to Appoint an Executor
No executor is expressly appointed in the 2009 document. There is also no person who, on the construction of the document, has been appointed as an executor according to the tenor.[26] In these circumstances, the appropriate grant is one of letters of administration with the will annexed.[27]
[26] For a summary of the principles applicable to the appointment of executors according to the tenor, see In the Estate of Ryan (1987) 139 LSJS 42, 43-45.
[27] See Romascu v Manolache [2011] NSWSC 1362; Re Shepherd (deceased) [2002] QSC 098; Re McComb [1999] 3 VR 485; Re Pryse (deceased) [1904] P 301; In the Goods of Oliphant (1860) 1 Sw & Tr 525.
Conclusion
I grant letters of administration with the copy of the 2009 document annexed 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 this Court.