Koutsouliotas v Koutsouliotis - [2011] SASC 196

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of PAVLOS DEMETRIOU KOUTSOULIOTIS (DECEASED); KOUTSOULIOTAS V KOUTSOULIOTIS
[2011] SASC 196
Judgment of The Honourable Justice Gray
11 November 2011
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - ADMINISTRATION GENERALLY - TO WHOM GRANTED AND WHEN NECESSARY IN GENERAL - SOUTH AUSTRALIA
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 an order that probate of the deceased's will, as contained in a copy, be granted to two applicants - the deceased's will was executed on 17 February 1984 at his solicitor's office - the deceased provided a marked up copy of the will or a photocopy of the marked up copy to each applicant - the deceased travelled to Greece later in 1984 - the deceased did not return to Australia again prior to his death - the deceased died on 29 November 1997 - following the deceased's death, his original will could not be found - whether the deceased's will was lost or destroyed - in particular, whether the presumption of revocation arises and, if so, whether it has been rebutted.
Held: Application granted - it was more likely than not that the solicitor retained the deceased's original will following execution - the presumption of revocation does not arise - in any event, if the presumption of revocation arose, it has been rebutted - probate of the deceased's will, as contained in a copy, is granted to the applicants limited until the original will or a more authentic copy is brought into and left in the Probate Registry of this Court.
Wills Act 1936 (SA) s 8; Administration and Probate Act 1919 (SA) Pt 3A and s 24; Probate Rules 2004 (SA) r 68; Supreme Court Act 1935 (SA) s 18; Court of Probate Act 1857 (UK) s 24; Testamentary Causes Act 1867 (SA), referred to.
In the Estate of Hall (deceased) [2011] SASC 117; 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; Gordon v Beere [1962] NZLR 257; Sugden v Lord St Leonards (1876) LR 1 PD 154; Finch v Finch (1867) LR 1 P & D 371; In the Estate of Kolecki (deceased) [2011] SASC 158; In the Estate of Fuld [1965] P 405; In re Brock, Jones v Jones (1908) 24 TLR 839; Oakes v Uzzell [1932] P 19; In the Estate of Goodfellow (1987) 47 SASR 367, considered.

In the Estate of PAVLOS DEMETRIOU KOUTSOULIOTIS (DECEASED); KOUTSOULIOTAS V KOUTSOULIOTIS
[2011] SASC 196
Testamentary Causes Jurisdiction
GRAY J:
Introduction

This is an application for an order that probate of the last will and testament of Pavlos Demetriou Koutsouliotis, the deceased, as contained in a copy, be granted to the applicants, Ioannis Koutsouliotas[1] and Stergios Koutsouliotis, that grant being limited until the original will or a more authentic copy of it is brought into and left in the Probate Registry of this Court. The document sought to be admitted to probate is dated 17 February 1984.
[1] Ioannis Koutsouliotas has adopted a different spelling of his surname to that adopted by his father and siblings. Further, the spelling of names of other persons varied throughout the Court file. For convenience, I have adopted one spelling throughout these reasons.
The primary issue in the present proceeding is whether the will of 1984 was lost or destroyed. If lost, then subject to the resolution of the issues arising in this proceeding, a copy can be admitted to probate. If destroyed, the deceased died intestate.
The applicants’ case was supported by oral testimony from three witnesses – Stergios, Ioannis and Ioannis’s wife, Margaret Frances Millar. Dimitrios Koutsouliotis was the only witness called for the opposing case.
At the request of the Court, the solicitor who drew the will and who acted for the deceased was called to give oral testimony to supplement his affidavit evidence. In In the Estate of Fuld, Scarman J concluded that a witness to the execution of a document is a witness of the Court.[2] His Honour made the following pertinent observations:[3]
It seems to me … that there can be in a probate case an apparent clash or conflict between the right of the court to know everything that its witness knows or has said about execution, and the right of a party to claim privilege for communications passing between that witness and himself or his solicitor for the purpose of collecting evidence for the hearing. If there be such a conflict, I have no doubt that it must be resolved in favour of the court. Strictly, however, there is no conflict because the court in its inquisitorial capacity is seeking the truth as to execution. The parties upon the issue of execution are assisting the court in its search for the truth. …
[Emphasis added.]
[2] In the Estate of Fuld [1965] P 405, 409, citing In re Brock, Jones v Jones (1908) 24 TLR 839; see also, Oakes v Uzzell [1932] P 19.
[3] In the Estate of Fuld [1965] P 405, 410.
Further, it is to be noted that section 18 of the Supreme Court Act 1935 (SA) refers to the probate jurisdiction of this Court as being as was vested in or exercisable of the Court of Probate established in England under the Court of Probate Act 1857 (UK). Section 24 of the English Act, at the time of enactment and in 1935, provided as follows:
Power to examine witnesses, and order production of deeds etc.–The Court of Probate may require the attendance of any party in person, or of any person whom it may think fit to examine or cause to be examined in any suit or other proceeding in respect of matters or causes testamentary, and may examine or cause to be examined upon oath or affirmation, as the case may require, parties and witnesses by word of mouth, and may, either before or after or with or without such examination, cause them or any of them to be examined on interrogatories, or receive their or any of their affidavits or solemn affirmations, as the case may be ; and the Court may by writ require such attendance, and order to be produced before itself or otherwise any deeds, evidences, or writings, in the same form, or nearly as may be, as that in which a writ of subpoena ad testificadum, or of subpoena duces tecum, is now issued by any of Her Majesty’s Superior Courts of Law at Westminster ; and every person disobeying any such writ shall be considered as in contempt of the Court, and also be liable to forfeit a sum not exceeding one hundred pounds.
[Emphasis added.]
Quite apart from being brought in through the Supreme Court Act, this power can be found in section 24 of the Administration and Probate Act 1919 (SA) in modern format, having been written into the Testamentary Causes Act 1867 (SA) from the English Court of Probate Act. Section 24 was discussed by Legoe J in In the Estate of Goodfellow.[4]
[4] In the Estate of Goodfellow (1987) 47 SASR 367.
I accept that the witnesses were honest and did their best to accurately recount the events occurring many years ago. The passage of time has obviously led to some difficulty of recall. I accept the evidence as outlined below. The differences in their accounts were limited, in my view, to matters of detail. I am prepared to act on this evidence and make findings in accordance with the summary set out below.
The Facts
The deceased was born in Greece and emigrated to Australia in 1949. His wife, Venatoula Koutsouliotis, and his seven children later joined the deceased in Australia. In 1984, the deceased travelled to Greece alone and remained there until his death.
The deceased died on 29 November 1997, aged 89 years. He was survived by Venatoula, who died on 15 July 2007. The deceased was also survived by four adult sons and two adult daughters – Dimitrios, Stergios, Ioannis, Theodoros Koutsouliotis, Agni Kyriakou and Malamati Gianoli. The remaining son, Constantinos Koutsouliotis, predeceased the deceased.
The statement of assets and liabilities of the deceased’s estate discloses the deceased’s house property at 208 Jeffcott Street, North Adelaide as the only asset. This property was valued at $450,000.00 by the Valuer-General. There are no liabilities disclosed.
The deceased previously owned property at 204-206 Jeffcott Street, North Adelaide. This was jointly owned with Ioannis. Ioannis gave evidence that he made regular payments to the deceased following the purchase of the property, totalling an estimated $15,000.00. Ioannis also conducted unpaid work at 204-206 Jeffcott Street including painting and electrical work; he is a builder and electrician who conducts his own building business. He conducted similar unpaid work on the deceased’s other property at 208 Jeffcott Street.
In 1976, the deceased wanted to sell the property at 204-206 Jeffcott Street. He offered the property to Stergios and Theodoros. Neither took up the offer. The property was then offered to Dimitrios who accepted. Dimitrios testified that he paid $30,000.00 to the deceased for the property. Ioannis did not receive any money from the sale. Dimitrios testified that the deceased said that he needed the money because he wanted to travel to Greece.
On 17 February 1984, the deceased executed a will at the office of his solicitor, Lazaros Peter Christou, in the presence of Mr Christou and Arthur Drikas. Those witnesses then attested and subscribed the will in the deceased’s presence. The will was duly executed in accordance with the requirements of section 8 of the Wills Act 1936 (SA).[5] Prior to execution, Mr Drikas read the will to the deceased in the Greek language. Mr Christou was present during that process and deposed that the deceased appeared to thoroughly understand and to have full knowledge of the terms of the will.
[5] Section 8 of the Wills Act 1936 (SA) relevantly 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).
Mr Christou took instructions from the deceased with respect to his 1984 will. The firm that he worked for at the time of taking instructions was dissolved by 1986. Thereafter, Mr Christou practised on his own account.
Mr Christou gave evidence that he had some memory of the events in 1984. He recollected the deceased. His affidavit evidence was that to his best recollection the original executed will was taken from his office by the deceased.
Mr Christou gave oral evidence supplementing his affidavit evidence outlining his practice at the time. He would retain a file and any copy will in a file for a period of ten years. The file would then be destroyed. Following completion of a matter, the file would be placed in a box and marked with the year for destruction. Mr Christou was confident that this practice was followed in the case of the deceased’s will and that the file and any copy will on the file would have been destroyed in or about 1994. In cross-examination, when pressed about the possibility of the 1984 file being destroyed some time later than 1994, he was firm in his recollection of his practice. Mr Christou acknowledged that the 1984 file may not have been destroyed on the precise day of the expiration of the ten year period. However, he confirmed that the file would have been destroyed at or about that time. He expressly rejected the suggestion that it may have been destroyed after a period of 12 or 13 years.
In the event that Mr Christou were to retain an original testamentary document, his practice was to place such a document in a lockable cabinet in his office. His evidence was that he had searched the lockable cabinet and could not locate the original of the deceased’s 1984 will.
Stergios gave evidence that following the death of the deceased in 1997, he spoke to Mr Christou by telephone with a view to discussing the administration of the estate of the deceased. When he explained to Mr Christou who he was and the matter to be discussed, Mr Christou put the phone down and left, apparently to retrieve relevant documents. When he returned, there was a discussion about the contents of the 1984 will. Stergios recalled that Mr Christou informed him that he could not “do much because your mother has a life interest and you can’t do [anything] about the house”. Mr Christou had no recollection of this conversation, but accepted that it may have occurred.
The inference to be drawn from the circumstances outlined above is that Mr Christou could not have accessed a file copy of the 1984 will because his file and any file copy had been destroyed some years earlier. It would appear that he may have accessed the original will of the deceased from his locked cabinet, but that the original had subsequently been misplaced.
In late 1983 or early 1984 prior to the execution of the will, the deceased had a conversation with Stergios. At the time of the conversation, the deceased was aware that he would be travelling to Greece. Stergios gave evidence that the deceased told him that the deceased had to make a will. The deceased did not want to include Dimitrios in the will and said words to the effect of “he’s not my son anymore”. Stergios informed the deceased that what he was doing was wrong, that Dimitrios was his son and that the deceased should provide for Dimitrios in his will. Further, Stergios deposed that the deceased said “[Ioannis] has done lots of work including maintaining and repairing and renovating the properties at 204-206 Jeffcott Street and at 208 Jeffcott Street in North Adelaide”. The deceased further informed Stergios that he would make a will in a way which would compensate Ioannis for the loss of his interest in the property at 204-206 Jeffcott Street and for the unpaid work on that property as well as at 208 Jeffcott Street. Stergios understood that, at this time, the deceased did not have the funds to repay Ioannis.
The deceased, following the execution of the 1984 will, gave Stergios an envelope containing a photocopy of a marked up copy of the will. At the same time, the deceased said “you look after this. You will be in charge with your brother [Ioannis]. Don’t let anyone cheat you”. Stergios did not discuss the deceased’s will with him again. He testified that despite regular communication with the deceased while in Greece through letters and in telephone conversations, the deceased at no time spoke about changing his mind regarding his will.
Sometime in 1984, the deceased provided a marked up copy of the 1984 will in an envelope to Ioannis, telling him to take care of it. The deceased followed this with a statement that “half the house is yours, look after it. Don’t let anyone cheat you”. During the same conversation, Ioannis deposed that the deceased said “this is my will” and later said “I am going to Greece. If anything happens to me, look after the place”. Ioannis deposed that he understood this comment to be a reference to the deceased’s house property at 208 Jeffcott Street. Ioannis believed, until after the deceased’s death, that he was in possession of the original will. The deceased did not at any stage inform Ioannis that the deceased himself had the original 1984 will.
Ms Millar was present during the above conversation between the deceased and Ioannis as she gave evidence about an occasion in 1984 in which the deceased handed an envelope to Ioannis and told Ioannis that it was his will. Ms Millar testified that she assumed it was the deceased’s original will. Ms Millar’s evidence was that the deceased told Ioannis to put “it” in a safe place and then the deceased turned to Ms Millar and said “make sure [Ioannis] doesn’t lose it. Keep it safe”.
This evidence would allow the inference that the solicitor retained the original executed 1984 will and gave a marked up copy to the deceased, that the deceased photocopied the marked up copy and then provided the marked up copy to Ioannis and the photocopy to Stergios, the executors named in the 1984 will.
Following the deceased’s death, Stergios took steps as an executor of the deceased’s 1984 will. He contacted Centrelink to cancel the deceased’s pension. He also telephoned Mr Christou and had the discussion referred to earlier in these reasons.
Further, following the deceased’s death it became evident that the original executed 1984 will could not be found. Searches of the property in Greece where the deceased last resided were conducted. Searches were also conducted in South Australia where the deceased kept important papers. An advertisement was placed in The Advertiser newspaper seeking information from anyone with knowledge of the location of the will. The advertisement received no positive response. The original 1984 will has not been found. There is no evidence that the deceased subsequently executed any testamentary documents and no such documents have been found.
Further, other important documents such as rental books, certificates of title, receipts and the deceased and Venatoula’s Australian naturalisation papers cannot be found. Ioannis deposed that these documents were previously stored in a dressing table draw in an upstairs bedroom at the home at 208 Jeffcott Street. A son of Theodoros, Paul Koutsouliotis, stayed periodically in the upstairs room at that house property. Paul has since died. Prior to his death, Ioannis asked him if he had ever seen the deceased’s original will. Paul informed Ioannis that there were some papers in the drawer of the dressing table in the upstairs bedroom, but that those papers had been moved to the kitchen by Venatoula. Ioannis subsequently searched the kitchen, but he did not find any of the deceased’s important papers. Ioannis inquired of other persons who had stayed in the upstairs room as to whether they knew where the papers were now located. None of those persons were able to provide assistance as to their location.
A marked up copy of the deceased’s will of 1984 is sought to be admitted to probate. It relevantly provides:
THIS IS THE LAST WILL AND TESTAMENT of me PAUL DEMETRIOU KOUTSOULIOTIS of 208 Jeffcott Street North Adelaide in the State of South Australia, Retired Machine Operator.
1.I REVOKE all former Wills and testamentary dispositions heretofore made by me.
2.I APPOINT my sons IOANNIS KOUTSOULIOTIS and STERGIOS KOUTSOULIOTIS (hereinafter called “my trustees”) to be the executors and trustees of this my Will.
3.I GIVE AND BEQUEATH unto my wife VENATOULA KOUTSOULIOTIS for her own use and benefit absolutely all items of furniture household goods and implements situated within my house property situated at 208 Jeffcott Street North Adelaide aforesaid of which I shall immediately prior to my death have been the sole owner or in which I shall have had any share or interest with my said wife.
4.I GIVE AND DEVISE unto my trustees UPON TRUST my said dwelling house property situated at 208 Jeffcott Street Adelaide aforesaid to permit my wife the said VENATOULA KOUTSOULIOTIS to use enjoy and occupy the same as she may desire during her lifetime she paying those liabilities hereinafter specified and after her death to hold the estate in fee simple in my said dwelling house property for such of them my children the said IOANNIS KOUTSOULIOTIS as to a one half share therein the said STERGIOS KOUTSOULIOTIS as to a one eighth share therein my son THEO KOUTSOULIOTIS as to a one eighth share therein my son DIMITRIOS KOUTSOULIOTIS as to one eighth share therein and my daughter YANULA ANDREA KYRIAKOU as to a one eighth share therein as shall survive me and as tenants in common.
5.I RECORD my intention that with respect to the life estate aforesaid my said wife should during her lifetime pay all rates taxes and other outgoings other than insurance relating to the said dwelling house property and that my said children as ultimate beneficiaries thereof should during my wife’s lifetime pay (pro rata according to the degree of benefit aforesaid) the cost of insuring the said dwelling house property against loss by fire earthquake and tempest and further the cost of keeping the same in a state of repair and condition as near as is practicable to equal to that in which the same shall be as at the date of my death and in default of payment to my trustees by such beneficiaries as and when may be required and in the proportions aforesaid I EMPOWER my trustees from time to time to mortgage the estate in fee simple for the purpose of raising loan moneys to make such payments and to service the repayment of such loan moneys and associated costs to the intent that such beneficiaries shall in the case of such default ultimately take my said dwelling house property subject to such liabilities as shall have been so incurred by my trustees in exercise of the power herein contained.
6.I GIVE DEVISE AND BEQUEATH all other of my property of whatsoever kind and nature and wheresoever situate unto my trustees UPON TRUST to sell call in and convert into money such parts thereof as shall not consist of money and to pay from my ready moneys and the proceeds of such sale calling in and conversion as aforesaid my just debts funeral and testamentary expenses and to hold the residue then remaining for such of them the undermentioned beneficiaries and in the undermentioned shares set out respectively adjacent to their names as shall survive me: -
the said IOANNIS KOUTSOULIOTIS – one half thereof
the said VENATOULA KOUTSOULIOTIS – one tenth thereof
the said STERGIOS KOUTSOULIOTIS – one tenth thereof
the said THEO KOUTSOULIOTIS – one tenth thereof
the said YANULA ANDREA KYRIAKOU – one tenth thereof
and to my son DIMITRIOS KOUTSOULIOTIS one tenth thereof
7.If my wife shall predecease me then the benefit conferred upon her by virtue of paragraph 6 of this my Will shall pass to my said children in the proportions in which my said children benefit by virtue of paragraph 4 of this my Will.
8.IF any child of mine shall predecease me leaving a child or children by him or her surviving then such grandchild or grandchildren of mine shall take the share under this my Will which his her or their parent would have taken had such parent survived me.
IN WITNESS whereof I have hereunto set my hand to this my last Will and testament upon this and the three preceding pages this 17^th day of FEBRUARY One Thousand Nine Hundred and Eighty Four.
SIGNED by the Testator in our )
joint presence and attested by    )
us in the presence of him and     )
each other.  )
The Testator being unable to read the English language the will was read over to him in the Greek language by ARTHUR DRIKAS whereupon the Testator stated that he approved the same and it was thereafter signed by the Testator in our joint presence and attested by us in the presence of him and each other.

Dimitrios, the deceased’s eldest son, is opposing the present application. He lived at 208 Jeffcott Street with the deceased until 1960. After that time, he lived at a different property, but regularly visited his parents at 208 Jeffcott Street.
Dimitrios gave evidence in relation to a will which was executed by the deceased in 1960. Dimitrios was the sole executor of that will and was to receive one third of the residue of the estate under that will. Dimitrios testified that the deceased said words to him to the effect of “listen, son, you have done so many things [for me], but I not have any money to give you back, I make one will, I put it in your name there”. Dimitrios informed the Court that from 1954 to 1960 he had worked for the deceased and that he sent the money back to Greece to support his siblings who were still living there.
The deceased showed Dimitrios the will of 1960 after it was executed. Dimitrios did not see it again after that time. He was unaware of the existence of the 1984 will.
Dimitrios testified that he had good relationships with his siblings and the deceased. He said that the only falling out within the family occurred between the deceased and Venatoula. The deceased made statements to Dimitrios such as “I can’t live with your mother”. Apparently the deceased had an argument with Venatoula and then moved to Greece.
The Application
The application for a grant of probate was brought by summons pursuant to rule 68 of the Probate Rules 2004 (SA).[6]
[6] Rule 68 of the Probate Rules 2004 (SA) is in the following terms:
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.
In In the Estate of Hall (deceased),[7] I summarised the matters for consideration relevant to a decision to admit a copy of a missing will to probate. Those considerations are:[8]
[7]    In the Estate of Hall (deceased) [2011] SASC 117.
[8]    In the Estate of Hall (deceased) [2011] SASC 117, [15]; subsequently considered in In the Estate of Kolecki (deceased) [2011] SASC 158.
·that the original will existed;[9]
·that the original will was duly executed;[10] 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;[11]
·that there is evidence of the terms of the original will;[12]
·that the copy will is an accurate and complete copy of the original will;[13]
·that thorough searches have been conducted to find the original will,[14] including publishing advertisements regarding the missing original will;[15]
·that the original will revoked all pre-existing wills;[16]
·the circumstances surrounding the absence of the original will;[17]
·that all persons prejudiced by the application, if it is granted, have consented to the application and are sui juris;[18] and
·that the presumption of revocation does not arise or has been rebutted.[19]
[9]    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.
[10] 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.
[11] See for example, section 12(2) of the Wills Act 1936 (SA); see also, Cahill v Rhodes [2002] NSWSC 561, [53]-[55].
[12] Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 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].
[15] In the Estate of Roediger Deceased [1967] SASR 118, 120.
[16] Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 718-719.
[17] In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; In the Estate of Roediger Deceased [1967] SASR 118, 120.
[18] In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; 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, 719; Allan v Morrison [1900] AC 604.
The marked up copy of the deceased’s will of 1984 is unsigned. Nonetheless, there is sufficient evidence to satisfy me that the deceased’s original will of 1984 existed and was duly executed in accordance with the requirements of section 8 of the Wills Act 1936 (SA).
In relation to the accuracy of the marked up copy of the 1984 will, Ms Millar deposed that she removed the original staple from the will sought to be admitted to probate in order to photocopy it. She deposed that the will is now in all respects in the same state and condition as when she made the copy, save for the staple holes. I am satisfied that the copy sought to be admitted to probate is a complete and accurate copy. No party suggested to the contrary. There is evidence of the terms of the will. The will contained a revocation clause revoking the deceased’s previous wills. Further, I am satisfied that thorough searches have been conducted and that the original 1984 will cannot be located.
I turn now to the consideration that all persons prejudiced by the application, if it is granted, have consented and are sui juris. As earlier mentioned, the deceased executed a will in 1960. As the 1984 will is a valid will and contained a revocation clause, the 1960 will is revoked. Accordingly, if probate of the will of 1984 is granted, the persons who could be adversely affected are those persons who are entitled to a share of the deceased’s estate in the event of an intestacy, rather than those persons entitled under the will of 1960. Those entitled in the event of an intestacy are the deceased’s children who survived him – Dimitrios, Theodoros, Agni, Malamati, Ioannis and Stergios – and the estate of Venatoula.[20] The deceased’s other child, Constantinos Koutsouliotis, predeceased the deceased and had no children. Accordingly, his estate is not entitled in the event of an intestacy.
[20] See Part 3A of the Administration and Probate Act 1919 (SA).
Ioannis, Stergios and Theodoros would receive a greater distribution under the will of 1984 than on an intestacy. Accordingly, they are not prejudiced by the present application. In any event, Stergios and Ioannis are the applicants. Theodoros has consented to the application and is sui juris. Agni is sui juris, but has neither consented nor formally opposed the application. Dimitrios is sui juris and has opposed the application.
Malamati is adversely affected by the application. She does not receive any interest in the deceased’s estate under the will of 1984. However, there is conflicting evidence as to whether Malamati is sui juris. There is evidence that she suffers from advanced dementia and severe diabetes. Conversely, it was submitted by a solicitor who was appointed as Malamati’s litigation guardian that Agni telephones Malamati on approximately a monthly basis and that Malamati is not demented, but does not speak English. Malamati resides in Greece and has not responded to letters regarding the present proceeding. The solicitor indicated that as Malamati’s litigation guardian, she adopted the same position as that taken by Dimitrios.
The estate of Venatoula is also adversely affected by the application. That estate would be entitled to a greater sum of money in the event of an intestacy than under the will of 1984. The executors of Venatoula’s estate have consented to the application.
As Dimitrios was heard in opposition to the application and those submissions were supported by Malamati, I am of the view that the interests of the persons prejudiced by the application were adequately represented.
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:[21]
…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. …
Accordingly, first I must consider whether the deceased was the last person to have possession of the original 1984 will.
[21] 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.
Earlier in these reasons I have discussed the evidence of Mr Christou and referred to the events at the time of execution of the 1984 will. Although Mr Christou initially had a recollection that the deceased left his office with the original will, his oral testimony would suggest that this recollection was inaccurate. I accept Mr Christou’s evidence that the file and any copy will on that file would have been destroyed in all probability in about 1994. I accept Stergios’s evidence that he telephoned Mr Christou following the death of the deceased and that while Stergios was on the telephone, Mr Christou left the phone and retrieved a document that allowed him to discuss the terms of the deceased’s will with Stergios. As the file had been destroyed, the only other document to be accessed was the original will from the secured cabinet. I consider it more likely than not that this is what occurred. If this conclusion could not be drawn, I would be left in the position of being unable to make any finding as to what happened with the original will.
In these circumstances, the presumption of revocation does not arise. Having regard to my earlier findings, it is appropriate to admit the copy to probate.
In the event that contrary to my above conclusion the presumption does arise, I consider it appropriate to express my opinion as to whether it has been rebutted.
The presumption of revocation is a presumption which may be rebutted by sufficient evidence.[22] It is the applicants who have the onus of rebutting the presumption.[23] 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”.[24]
[22] 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].
[23] 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.
[24] 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.[25] 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.[26] In the present proceeding, there is evidence that the deceased was careful with his important documents. There is also evidence that the deceased stored important documents in a draw in a dressing table in an upstairs room in his house property. Ioannis believed the will of 1984 was stored with the deceased’s other important documents in a dressing table. However, there is no evidence that the will was actually seen in that location.
[25] 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.
[26] 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[27] and Finch v Finch,[28] made the following relevant observations:[29]
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.
[27] Sugden v Lord St Leonards (1876) LR 1 PD 154.
[28] Finch v Finch (1867) LR 1 P & D 371.
[29] 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).
In the will of 1984, the deceased provided Venatoula with the right to use, enjoy and occupy the house property at 208 Jeffcott Street for the remainder of her life and provided Ioannis with a greater share of his estate than that which he provided to his other children. The terms of the 1984 will have been set out earlier in these reasons. In my view, it is evident that the deceased did make a complete and careful disposition of all of his property.
It is appropriate now to turn to consider whether there is evidence which reveals a reason why the deceased would have wanted to revoke his 1984 will by destroying it.
The deceased’s will of 1960 gave Venatoula all of deceased’s real and personal property situate in Greece and also provided her with the right to use and enjoy the property at 208 Jeffcott Street for the remainder of her life or until she remarried. The residue of the deceased’s estate was divided into thirds – Dimitrios receiving one third, Stergios receiving one third and Theodoros, Ioannis and Constantinos sharing the remaining third.
It is to be noted that Dimitrios’s share of the estate decreased from the provision in the will of 1960 to the provision in the will of 1984. Conversely, Ioannis’s share of the estate increased. Further, the holder of the office of executor changed – Dimitrios was named as the executor in the 1960 will, while Ioannis and Stergios are the executors named in the 1984 will.
Both Stergios and Ioannis discussed the reasons why the deceased wanted to give Ioannis a greater share of his estate in the 1984 will. The deceased and Ioannis were owners as tenants in common of property at 204-206 Jeffcott Street. In June 1976, the deceased and Ioannis signed a memorandum of transfer, transferring title to that property to Dimitrios. Ioannis did not receive any money for the transfer of his interest in the property. Ioannis also performed renovations and maintenance work on both the property at 204-206 Jeffcott Street and on the property at 208 Jeffcott Street. It is apparent, as earlier discussed, that the deceased recognised this contribution by Ioannis.
As earlier mentioned, some time in 1984 it was said that the deceased handed an envelope to Ioannis which contained a marked up copy of the 1984 will. After handing the envelope, Ioannis deposed that the deceased made a number of statements to him including “take this, take good care of it”, “half the house is yours, look after it ...”, “this is my will” and “I am going to Greece. If anything happens to me, look after the place”. The deceased also informed Ioannis that he had made the will in terms that would allow Ioannis to receive some compensation for the loss of Ioannis’s interest in the property at 204-206 Jeffcott Street. The deceased informed Ioannis that his 1984 will allowed Ioannis to benefit from his contribution to the preservation of the properties at 204-206 and 208 Jeffcott Street and for his contribution to the acquisition and improvements to the properties of the deceased’s family generally.
It is evident from Stergios and Ioannis’s evidence set out above that one explanation for why the deceased would have changed his mind about the distribution of his estate between 1960 and 1984 was due to Ioannis’s contribution to the enhancement and purchasing of the property at 204-206 Jeffcott Street through the provision of money and labour and the fact that Ioannis did not receive money when the property was sold. It is open on the evidence to conclude that the deceased wanted money from the sale of 204-206 Jeffcott Street so that he could return to Greece to build a church in memory of his deceased son. The circumstances suggest that the deceased saw an unfairness to Ioannis and that he sought to remedy that unfairness by increasing Ioannis’s interest in the deceased’s estate as against the deceased’s other children.
I am of the view that this is the most probable explanation for the differences between the deceased’s wills of 1960 and 1984. However, with that explanation in mind, it is necessary to consider whether the deceased decided to revoke the will of 1984 between the time of its execution and the time of his death.
Counsel for Dimitrios submitted that the deceased was a testator who was prepared to change his mind. It was said that he changed his mind between 1960 and 1984 while he was living in Adelaide. In and from 1984, the deceased made changes in his life – he moved to Greece without his wife to build a church. Counsel for Dimitrios submitted that the deceased’s relationship with his wife had deteriorated. It was said that this was confirmed by the fact that Venatoula made a will in 1989 in which she did not leave any of her estate to the deceased. It was also supported by the earlier mentioned negative statement made by the deceased about Venatoula.

It was Dimitrios’s case that the deceased may have taken the 1984 will with him to Greece as he was intending to reside there permanently.
Dimitrios’s case was that, while in Greece, the deceased had had a chance to rethink his testamentary wishes and that this may have resulted in the destruction of the 1984 will. It was said that in rural Greece it would have been difficult to make a new will. In these circumstances, it was said that it was understandable for the deceased to destroy the 1984 will. Accordingly, the crux of counsel for Dimitrios’s submissions was that no matter how the evidence may be viewed, it fell short of overcoming the presumption of revocation.
In my view, the evidence establishes that the deceased was a man who was careful about his affairs. The terms of both his will of 1960 and that of 1984 suggest that they had been considered thoroughly by the deceased before he executed the wills. He had instructed solicitors to attend to their preparations. They contained a careful and complete disposition his property. For almost 40 years, the deceased had a will. It may be inferred that if the deceased changed his mind regarding the distribution of his estate, it is likely that he would have executed a new will, rather than simply destroying the 1984 will and dying intestate. There is no evidence of a new will.
The deceased’s obligation to Ioannis for his contributions to the properties in Jeffcott Street or for the sale of his interest in the property at 204-206 Jeffcott Street was not fulfilled by other means. Accordingly, it may be inferred that the obligation continued to the time of the deceased’s death. There was no evidence from Stergios, who communicated with the deceased while he was in Greece, that the deceased had changed his mind regarding his obligations to Ioannis or the distribution of his estate. None of the deceased’s other children were informed of a change of mind. Further, there was no evidence which suggests a falling out between the deceased and Ioannis at any time after the execution of the will in 1984.
Another fact of note is that all of the deceased’s important papers previously located in a drawer in the upstairs room are missing, not just his 1984 will. The deceased may have taken papers to Greece or he may have left them all in Australia. The evidence suggested that Venatoula had possession of the important papers while she resided in the home property. In either case, I am of the view that it is very unlikely that the deceased destroyed all of the papers. Hence, it is probable that the deceased’s important papers including his will of 1984 were lost.
Based on the totality of the evidence, I am satisfied, on the balance of probabilities, that, even though the 1984 will is missing, it is more likely than not that the reason for it being missing is something other than that the deceased destroyed it with the intention of revoking it.[30] Accordingly, I am satisfied that there is sufficiently strong evidence to rebut the presumption of revocation.
[30] Adopting the language of Campbell J in Cahill v Rhodes [2002] NSWSC 561 at [68] where he is drawing on Sugden v Lord St Leonards (1876) LR 1 PD 154 and Finch v Finch (1867) LR 1 P & D 371.
There is one further matter to be mentioned. The deceased executed a will on 24 November 1960. Given my findings in relation to the deceased’s will of 1984, I am of the view that the 1960 will was revoked by the 1984 will.
Conclusion
I have reached the conclusion that the copy will should be admitted to probate limited until the original will or a more authentic copy of it be brought into and left in the Probate Registry of this Court. I consider that the presumption of revocation does not arise, but that if it did arise, it has been rebutted.
I direct the applicants to prepare minutes of orders to give effect to the above reasons.