JACK HAMILTON GERARD DECEASED

Case [2007] SASC 362

SUPREME COURT OF SOUTH AUSTRALIA

(Testamentary Causes Jurisdiction: Application)

In the Estate of JACK HAMILTON GERARD DECEASED

[2007] SASC 362

Judgment of The Honourable Justice Gray

10 October 2007

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

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 order admitting photocopy of deceased's executed will and original codicil to probate - application for order that probate of photocopy will and original codicil be granted to three executors named in photocopy will - original executed will lost - deceased's wife and two children were primary beneficiaries under deceased's will - deceased's wife was not sui juris - deceased's wife entitled to significantly less under deceased's will than on an intestacy - rule 68 of the Probate Rules 2004 (SA) provides that an application for an order admitting to proof a photocopy will may be made ex parte - such application shall be supported by affidavit evidence setting out grounds of application and written consents of all persons who may be prejudiced by grant - if person who is prejudiced is, inter alia, sui juris, the Registrar may dispense with such consent - solicitor acting as guardian ad litem for deceased's wife neither consented nor opposed application and intended to abide order of Court - presumption of destruction of lost will animo revocandi - consideration of affidavit evidence to rebut presumption of revocation - consideration of due execution of will - consideration of circumstances of loss - consideration of accuracy and completeness of photocopy will - consideration of deceased's practices, character and disposition - consideration of consents to grant of probate - consideration of sui juris status of deceased's wife - consideration of public notification requirements - evidence given that deceased would not have intentionally destroyed and revoked will - evidence given that deceased was satisfied with will and codicil - evidence given that deceased was unwilling to die intestate - evidence given that photocopy will was a careful and complete disposition of deceased's property.

Held:  Application allowed.  Photocopy will and original codicil admitted to probate.

Probate Rules 2004 (SA) (Amendment No 2) r 68; Inheritance (Family Provision) Act 1972 (SA), referred to.
In the Estate of Roediger Deceased [1967] SASR 118; In the Goods of Pearson [1896] P. 289; In the Goods of Hannah Apted [1899] P. 272; In the Estate of Vauk (1986) 41 SASR 242; Cahill v Rhodes; Rhodes v Cahill [2002] NSWSC 561; McCauley v McCauley (1910) 10 CLR 434; Whiteley v Clune (No 2); The Estate of Brett Whiteley (13 May 1993, unreported, Supreme Court of New South Wales); Colvin v Fraser (1929)…

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JACK HAMILTON GERARD DECEASED [2007] SASC 362
Case
[2007] SASC 362
Decision Date

CaseChat Overview and Summary

In the case of Jack Hamilton Gerard Deceased, the court was called upon to determine whether a photocopy of the deceased's will, along with the original codicil, could be admitted to probate, particularly given that the original will had been lost. The primary beneficiaries under the will were the deceased's wife, Mrs. Gerard, and their two children, with Mrs. Gerard being entitled to significantly less under the will than she would receive in the event of an intestacy. The application for probate was supported by affidavit evidence and written consents from all relevant parties, including the deceased's wife, whose guardian ad litem neither consented to nor opposed the application and intended to abide by the Court's order.

The legal issues before the court included whether the presumption of the destruction of the will animo revocandi could be rebutted, the due execution of the will, the circumstances of its loss, and the accuracy and completeness of the photocopy will. Additionally, the court had to consider the deceased's practices, character, and disposition, the consents to the grant of probate, and the sui juris status of the deceased's wife. The court also took into account the public notification requirements stipulated in the Probate Rules 2004 (SA).

After considering all the evidence, including the testimonies that the deceased would not have intentionally destroyed and revoked his will, that he was satisfied with the will and codicil, and that he was unwilling to die intestate, the court found that there was sufficiently strong evidence to rebut the presumption of revocation. The court concluded that the will was a careful and complete disposition of the deceased's property and that it was more likely the will was lost rather than destroyed. Consequently, the court made an order admitting the photocopy of the will dated 25 August 2004 and the original codicil dated 30 November 2004 to probate.

The final orders included granting probate to the three executors named in the photocopy will and requiring that the estate be administered in accordance with the terms of the will and codicil. The court's decision was grounded in the totality of the evidence, which indicated that the will was lost rather than intentionally destroyed, and that the photocopy accurately reflected the deceased's last testamentary intentions.

Orders

Orders of the court

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Background

Background to the litigation

A solicitor, Raymond Gordon Frost, as guardian ad litem, has entered an appearance on behalf of Mrs Gerard. On the hearing of this application, counsel informed the Court that Mr Frost, as guardian ad litem, neither consented to nor opposed the application, and would abide the order of the Court. Mr Frost has undertaken to take advice as to whether an Inheritance (Family Provision) Act1972 (SA) claim should be made on behalf of Mrs Gerard.The Facts As earlier observed, Mr Gerard made a will dated 25 August 2004 and a codicil to that will dated 30 November 2004. Finlaysons Lawyers prepared both the will and the codicil. Both were both duly executed. The will appointed Mrs Gerard, her son and daughter, and Mr Harley as executors and revoked all former wills and testamentary dispositions. Under the will, the primary beneficiaries are Mrs Gerard and her son and daughter. Mrs Gerard’s interest under the will includes a substantial pecuniary legacy and a life interest in the family residence. Her son and daughter’s interests include each receiving one half of the residue of the estate. Mrs Gerard is entitled to significantly less under the will than she would receive in the event of an intestacy. Under the will a number of individuals and charities receive pecuniary legacies. The codicil gives pecuniary legacies to named individuals and confirms the will dated 25 August 2004. The originals of both the will and codicil were in the possession of Mr Gerard for safekeeping. The original of the codicil was located after death. However, the original of the will has not been found. Only a photocopy of the executed will has been found. Richard Burke of Finlaysons, who prepared the will, has provided evidence of due execution and knowledge of contents of the will. He has authenticated the will and deposed to the fact that it corresponded to the photocopy of the will taken from the original and held on Finlaysons’ file. Mr Harley has had a long association with Mr Gerard and his family. He attended the wedding of Mr and Mrs Gerard. He has been a member of the board of directors of Gerard Industries, a company with which Mr Gerard was associated. When Mr Harley was in private practice as a solicitor he prepared wills for both Mr and Mrs Gerard. Mr Harley has given evidence about Mr Gerard’s approach to making a will. It was said that Mr Gerard was meticulous with his wills and always kept the original will. Mr Harley gave evidence that in the last few years of his life Mr Gerard had not made statements or comments to him about his will. However, he expressed the view that it would be extremely unlikely for Mr Gerard to have wished to die intestate or have wished Mrs Gerard to inherit half of his estate on an intestacy. After Mr Harley left private practice, he referred Mr Gerard to Finlaysons. That firm first prepared a will for Mr Gerard in 1995. For the years thereafter Finlaysons had the care and conduct of Mr Gerard’s legal affairs. This included the preparation of his testamentary papers.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J
In Gordon v Beere,[24] McGregor J observed:[T]he proper approach is not to keep facts raising the presumption and facts rebutting the presumption separate, but to consider the whole of the facts together, and draw what inference should be drawn from the totality of the evidence.[24] Gordon v Beere [1962] NZLR 257 at 266.Conclusion In the present case, the original will appears to have been held by Mr Gerard. He was known to destroy original wills and codicils together with drafts and copies from time to time, knowing them to have been revoked by later documents. The reason proffered for the loss of the original will is that Mr Gerard may have inadvertently destroyed the will while culling documents held by him, or Mrs Gerard may have inadvertently destroyed it during her incapacity while at home. Mr Frost, as guardian ad litem for Mrs Gerard, has indicated that he would abide by the order of the Court, and did not propose to put forward an argument in opposition to this application. Notwithstanding that Mrs Gerard is not sui juris, I am satisfied that, in the circumstances of the case, this factor alone should not preclude the will from being admitted to probate. In my view, upon consideration of the whole of the evidence, there is sufficiently strong evidence to rebut the presumption of revocation. Mr Gerard’s will was a careful and complete disposition of his property. The evidence that Mr Gerard was happy with his new will and codicil and did not envisage the need to revise or revisit them; his unwillingness to die intestate; and the improbability of his changing his intention, all indicate a higher degree of probability that the will was lost rather than destroyed. Having regard to all of the above circumstances I am satisfied that the photocopy will sought to be admitted to probate is a true and accurate copy of the last will of Mr Gerard. I am further satisfied that the original will was duly executed. I am satisfied that following a thorough search including public advertisement, the original will cannot be found. I make an order that the photocopy of the will dated 25 August 2004 and the original codicil dated 30 November 2004 be admitted to probate.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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