JACK HAMILTON GERARD DECEASED - [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) 2 Hagg 325; Welsh v Phillips (1836)1 Moo PC 299; Allan v Morrison [1900] AC 604; In the Will of Molloy [1969] 1 NSWR 400; In the Estate of Wipperman; Wissler v Wipperman [1953] 2 WLR 706; In the Estate of Ralston (12 September 1997, unreported, Supreme Court of New South Wales); WA Trustee, Executor & Agency Co Ltd v O’Connor (1955) 57 WALR 25; Sugden v Lord St Leonards (1876) 1 LR 1 PD 154; Finch v Finch (1867) 1 LR 1 PD 371; Gordon v Beere [1962] 1 NZLR 257, considered.

In the Estate of JACK HAMILTON GERARD DECEASED
[2007] SASC 362
Testamentary Causes Jurisdiction
GRAY J.
Introduction

Jack Hamilton Gerard, the deceased, died in South Australia on 21 December 2005. He left a substantial estate.
Mr Gerard is survived by his widow Rita Joyce Gerard, son Anthony Gordon Gerard and daughter Frances Gerard. Mr Gerard married Mrs Gerard on 11 June 1992.
An application has been made by Mr Gerard’s son, daughter and John Maxwell Harley for an order admitting to probate a will dated 25 August 2004, contained in a photocopy, and for an order that probate of the photocopy will and a codicil, dated 30 November 2004, be granted to the applicants as executors named in the photocopy will.
Rule 68 of the Probate Rules 2004 (SA), as amended to 1 March 2005, relevantly provided:[1]
[1]    Probate Rules 2004 (SA) (Amendment No 2).
An application for an order admitting to proof ... a will contained in a copy, … where the original will is not available, may be made ex parte to the Registrar by summons in the Form No. 33.
...
The 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.
On 27 August 2007, I made an order admitting the photocopy will to probate and that probate of the photocopy will dated 25 August 2004 and the codicil dated 30 November 2004 be granted to Mr Gerard’s son and daughter, and Mr Harley. I now provide my reasons for making this order.
The application was supported by affidavits from a number of deponents. In making the findings recorded in these reasons I have acted on the affidavit evidence.
Mrs Gerard is not sui juris. She resides at Resthaven, Leabrook. In a report of 9 February 2006, Dr Jane Hecker expressed the opinion that Mrs Gerard was suffering from moderately severe dementia of probable mixed Alzheimer and vascular type. Dr Hecker was of the view that Mrs Gerard did not have testamentary capacity for the arrangement of legal documents nor the ability to manage her own financial affairs.
Mrs Gerard has appointed her daughter as her guardian. Her son and Mr Harley are Mrs Gerard’s administrators pursuant to an order of the Guardianship Board. Mr Harley is the sole surviving executor of Mrs Gerard’s will.
By order dated 5 February 2007 the Registrar of Probates ordered that copies of this application, the supporting affidavits and copy of Dr Hecker’s report be served on a practitioner of this Court to the intent that service be accepted on behalf of Mrs Gerard and that an appearance be entered as her guardian ad litem.
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.
Mr Burke gave evidence that Mr Gerard sought and was provided with many drafts of his wills until satisfied that they reflected his intentions. Mr Gerard would telephone Mr Burke with any query on a will and would then request that Mr Burke attend at his residence. When Mr Gerard revised his will it was his practise to make notes on the original, on the copy, and on notepaper. Mr Gerard was in the habit of retaining drafts and the original wills and codicils at his residence either in the safe in his study or in his briefcase.
Mr Burke gave evidence that following execution of the will, and at Mr Burke’s request, the original will was handed to Mr Burke to enable him to make a photocopy for the Finlayson’s file. Mr Gerard requested that Mr Burke return the original executed will to him, together with a photocopy of the executed will. He did so under cover of a letter dated 26 August 2004. Mr Burke personally ensured that the original will was enclosed with this letter. Mr Burke expressed the view that Mr Gerard would not have intentionally destroyed his will with the view to revoking its appointments and provisions.
Mr Burke undertook a thorough search of his office, of the safe custody system of Finlaysons, including the deed packets belonging to Mr Gerard and members of his family, and of Mr Gerard’s files handled by Finlaysons. The original will has not been located. The loss was advertised in “The Advertiser” on 25 and 26 August 2006. No response has been received to the advertisements.
Anthony Gerard gave evidence that he found the original letter from Finlaysons dated 26 August 2004, enclosing a photocopy of the executed will, and the original letter from Finlaysons dated 30 November 2004, enclosing the original codicil and a photocopy of the codicil, in a packet in the study safe at Mr Gerard’s residence following his death. The original will was not amongst the papers found in the study safe. Anthony Gerard was also aware that Mr Gerard kept documents of importance in his briefcase. He searched the briefcase and the residence a number of times but did not locate the original will.
Anthony Gerard and Frances Gerard gave evidence that Mrs Gerard’s legal and financial arrangements were handled by Mr Gerard who attended to them on a day-to-day basis. Anthony and Frances have deposed to having searched through the personal papers of Mrs Gerard. They did not locate the original will or any other testamentary papers of Mr Gerard.
Anthony Gerard gave evidence that he had a conversation with Mr Gerard shortly after the codicil had been executed. Mr Gerard expressed pleasure in having provided the extra benefits to those mentioned in the codicil, that the matter was concluded and that he did not envisage any further need to revise or revisit the will or codicil. At the conclusion of the conversation Mr Gerard confirmed the documents were in his briefcase in his study and that he would place them in his study safe at his residence. Anthony Gerard gave evidence that he was not aware of anything to suggest that Mr Gerard was other than fully satisfied with the will and codicil.
Glenn Sterrey advised Mr Gerard on financial matters for 12 years prior to Mr Gerard’s death. On 22 August 2005, Mr Gerard confirmed with Mr Sterrey that his will was current and reflected his intentions. Mr Sterrey expected that Mr Gerard would have notified him of any contemplated change to the will. At no time since 22 August 2005 was Mr Sterrey made aware that Mr Gerard wished to alter his will.
Coralyn Patricia Buckingham was a personal assistant and health care consultant to Mr Gerard from January 2003 until his death. She had known Mr and Mrs Gerard for more than 15 years. She was employed on a 24-hour, 7-day a week availability basis. She assisted Mr Gerard with appointments, banking and correspondence. Ms Buckingham was entrusted with the care, control and management of the household following Mrs Gerard’s diagnosis of Alzheimer’s disease. Ms Buckingham assisted Mr Gerard with his personal hygiene. She became his confidant.
Ms Buckingham gave evidence that she had not seen the will. However, following Mrs Gerard’s move to Resthaven, Mr Gerard expressed his relief and happiness as to the state of his will and that he could die peacefully. There was no indication to Ms Buckingham that Mr Gerard was contemplating reviewing or altering the will. If there had been any such review or alteration she would in the ordinary course have been the one to make the arrangements with the solicitor for that purpose.
Anthony Gerard, Frances Gerard, Mr Harley, Mr Burke and Ms Buckingham, all persons with considerable association with Mr Gerard, have deposed to not knowing of any other will of Mr Gerard and of no document revoking the will or codicil. As earlier observed, the original of the will has not been found. They do not believe Mr Gerard would have destroyed the original of the will with a view to intentionally revoking it. Their belief has been formed as a result of long term contact with Mr Gerard and an awareness of his practices, character and disposition. They believe the will remains the last will and testament of Mr Gerard.
Legal Principles
In In the Estate of Roediger Deceased,[2] Mitchell J observed that, in addition to providing evidence of due execution, an applicant should also establish the following:
-the circumstances surrounding the loss of the will;
-the efforts made to find the original will;
-the accuracy of the copy of the will put forward for proof;
-that all persons prejudiced have consented or are sui juris;
-whether advertisements have been published for the missing will and whether any reply has been received; and
-that a complete copy of the document that the Court is asked to admit to probate is lodged.
These requirements have been met in the present case, save that Mrs Gerard is not sui juris and thus cannot consent to the application. She is prejudiced in that she would stand to receive a greater benefit in the estate under an intestacy than she does under the will.
[2] In the Estate of Roediger Deceased, [1967] SASR 118 at 120.
Her Honour in Roediger, analysing the basis for the factors that need to be established, cited the judgment of Gorell Barnes J in In the Goods of Pearson:[3]
I have looked through the cases on the subject, and I have made inquiries in the Registry, with the result that I cannot discover a single case in which the contents of a lost will have been allowed to be proved on motion without the consent of the next of kin, and I am informed that it has always been the practice to require their consent, and, where this is not or cannot be given, to require the will to be propounded. I must, therefore , dismiss this motion.
Gorell Barnes J observed in In the Goods of Hannah Apted:[4]
I have had to consider these cases of lost wills a good deal lately, and at the present time I am prepared to modify the view I expressed in the case of In the Goods of Pearson. I think now that in clear cases, without specifying what those cases may be, these applications may be acceded to.
Upon analysis of these authorities Mitchell J concluded:[5]
The only requirement which has not been met, and cannot be met in this case, is that all persons who could possibly be prejudiced have consented and that they are sui juris. However, it has, in this Court, been the practice to grant the motion in a case of this nature where there is no doubt that the document sought to be proved is a copy of the original will.
This proposition has since been cited with approval in this court.[6]
[3]    In the Goods of Pearson [1896] P. 289 at 290.
[4]    In the Goods of Hannah Apted [1899] P. 272 at 274 (footnotes omitted).
[5]    In the Estate of Roediger Deceased, [1967] SASR 118 at 120.
[6]    See eg In the Estate of Vauk (1986) 41 SASR 242 at 249 (Legoe J).
The principles to be applied in cases concerning a probate application with respect to a lost will were further discussed by Campbell J in Cahill v Rhodes; Rhodes v Cahill:[7]
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.
In the present case it has been established that a will was made by Mr Gerard on 25 August 2004, that it revoked all prior wills, that there was evidence of its terms and that it had been duly executed. The execution of a codicil to the will has also been established. The remaining issue for determination is whether the presumption that the will had been revoked, arising out of the fact that the original will cannot be found, has been rebutted by the applicants.
[7] Cahill v Rhodes; Rhodes v Cahill [2002] NSWSC 561 at [55].
If a will was in the possession of a testator at the time of his death, and the original will cannot be found thereafter, a presumption arises that the testator destroyed the will with the intention of revoking it.[8] The presumption of revocation is a presumption of fact, which may be rebutted by appropriate evidence.[9]
[8] McCauley v McCauley (1910) 10 CLR 434 at 438.
[9] Whiteley v Clune (No 2); The Estate of Brett Whiteley (13 May 1993, unreported Supreme Court of New South Wales) at [27]; see also Colvin v Fraser (1929) 2 Hagg 325 (Sir John Nicholl); Welsh v Phillips (1836) 1 Moo PC 299 (Parke B).

In Whiteley v Clune (No 2); The Estate of Brett Whitely,[10] Powell J reviewed the authorities and summarised the state of the presumption of revocation in the following propositions:[11]
The present position would now seem to be as follows: - 1. although, where a Will is traced into the possession of the testator and is not forthcoming on his death, there is a presumption that he destroyed it animo revocandi, the presumption may be rebutted; 2. the strength of the presumption depends upon the character of the testator’s custody over it (Sugden v Lord St Leonards (1876) LR 1 PD 154; Allan v Morrison [1900] AC 604; McCauley v McCauley (1910) 10 CLR 434); 3. where the will makes a careful, and complete, disposition of the testator’s property, and there are no other circumstances to point to a probable destruction, amino recovandi, by the testator, the presumption is so slight that it may be said not to exist (Sugden v Lord St Leonards (supra); Finch v Finch (1867) LR 1 P and D 371); 4. where a will is lost or destroyed, and the presumption of destruction, animo revocandi, either, does not arise, or, is rebutted, its contents may be proved by parol evidence.
[10] Whiteley v Clune (No 2) The Estate of Brett Whiteley (13 May 1993 unreported Supreme Court of New South Wales) at [26]-[27].
[11] Whiteley v Clune (No 2); The Estate of Brett Whiteley (13 May 1993, unreported Supreme Court of New South Wales) at [27]. Whiteley v Clune (No 2); The Estate of Brett Whiteley (13 May 1993, unreported Supreme Court of New South Wales) at [27].
The onus of rebutting the presumption falls on the party seeking to have the copy will admitted to probate.[12] More recent authorities establish that the appropriate standard of proof is the ordinary civil standard – on the balance of probabilities.[13] However, the evidence to rebut the presumption should be “clear and convincing”.[14] As Campbell J observed in Cahill:[15]
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 …
[12] See eg Allan v Morrison [1900] AC 604; In the Will of Molloy [1969] 1 NSWR 400.
[13] Whiteley v Clune (No 2); The Estate of Brett Whiteley (13 May 1993, unreported Supreme Court of New South Wales) at [26]; In the Estate of Wipperman; Wissler v Wipperman [1953] 2 WLR 706; Cahill v Rhodes; Rhodes v Cahill [2002] NSWLR 561 at [56] (Campbell J).
[14] In the Estate of Ralston (12 September 1996, unreported Supreme Court of New South Wales) (Hodgson J).
[15] Cahill v Rhodes; Rhodes v Cahill [2002] NSWSC 561 at [56] (Campbell J).
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.[16]
[16] WA Trustee, Executor & Agency Co Ltd v O’Connor (1955) 57 WALR 25 at 40.
The strength of the presumption of revocation is said to depend on the character of the testator’s custody over the lost instrument.[17] The meaning of “the character of the testator’s custody”, in the context of Powell J’s proposition in Whiteley, was discussed by Campbell J in Cahill:[18]
It refers to facts concerning the physical arrangements the testator has for security of the Will – for instance, whether it is kept in a place which is locked or unlocked, if kept in a locked place, how many keys there are and who has them or has access to them, or whether the testator keeps his will in his coat pocket – who knows of the location of the Will, whether anyone besides the testator has access to the Will, and the extent to which the testator has been careful in looking after his Will. All these are matters which can affect the likelihood of the Will being missing because the testator himself destroyed it, or because there is some other explanation for its absence, like that someone else removed it, or that the testator has merely lost it.
[17] Whiteley v Clune (No 2); The Estate of Brett Whiteley (13 May 1993, unreported Supreme Court of New South Wales) at [27].
[18] Cahill v Rhodes; Rhodes v Cahill [2002] NSWLR 561 at [59].
Evidence that a deceased was meticulous with his wills, and usually kept them under lock and key, has a tendency to strengthen the presumption that the will was destroyed.
It has also been observed that where a will constitutes a careful and complete disposition of the testator’s property, and no other circumstances exist to point to a “probable destruction”, the presumption of revocation is so slight that it may be said not to exist.[19]
[19] Whiteley v Clune (No 2); The Estate of Brett Whiteley (13 May 1993, unreported Supreme Court of New South Wales) at [27].
The word “probable” in this context does not require the court to apply a higher standard of proof than the ordinary civil standard. Campbell J in Cahill rejected the submission that the use of the word “probable” required the court to establish a “probability” of destruction in order for the presumption to apply:[20]
I do not accept that that submission applies Powell J’s third proposition correctly. If the submission were correct, then, every time a testator had made a complete disposition of his estate, and the Will could not be found upon his death, the onus would for practical purposes be upon someone who opposed the granting of probate of that Will to demonstrate that it was probable that it had been destroyed with the intention of revoking it. That would, in a very large proportion of cases, do away with the presumption entirely. That is not the law.
By using the phrase “probable destruction”, Powell J is not to be taken to be suggesting that anything other than the ordinary standard of proof appropriate in civil cases needs be applied to the question of whether the Will has been destroyed with an intention of revoking it. His Honour had, in the second paragraph which I have quoted above, expressly decided that the appropriate standard to apply is that applicable in ordinary civil cases.
Campbell J also considered the authorities of Sugden v Lord St Leonards[21] and Finch v Finch,[22] and concluded:[23]
What Sugden v Lord St Leonards and Finch v Finch show is that if the 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.
[20] Cahill v Rhodes; Rhodes v Cahill [2002] NSWSC 561 at [62]– [63].
[21] Sugden v Lord St Leonards (1876) 1 LR 1 PD 154.
[22] Finch v Finch (1867) 1 LR 1 PD 371.
[23] Cahill v Rhodes; Rhodes v Cahill [2002] NSWSC 561 at [68].
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.