Larussa v Anna Carr as administratrix of the estate of the Late Giuseppe Larussa
[2018] WASCA 127
•31 JULY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: LARUSSA -v- ANNA CARR as administratrix of the estate of THE LATE GIUSEPPE LARUSSA [2018] WASCA 127
CORAM: MURPHY JA
BEECH JA
ALLANSON J
HEARD: 12 MARCH 2018
DELIVERED : 31 JULY 2018
FILE NO/S: CACV 103 of 2016
BETWEEN: TONY LARUSSA
Appellant
AND
ANNA CARR as administratrix of the estate of THE LATE GIUSEPPE LARUSSA
First Respondent
ANNA CARR
Second Respondent
MARIA ANGELINA GENNARINA LARUSSA
Third Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: CHANEY J
Citation: LARUSSA -v- CARR as administratrix of the estate of GIUSEPPE LARUSSA [2016] WASC 332
File Number : CIV 1702 of 2015
Catchwords:
Wills and probate - Proof of lost will - Presumption of destruction with intention of revocation - Whether presumption rebutted
Legislation:
Administration Act 1903 (WA), s 14
Wills Act 1970 (WA), s 15
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr M J McCusker QC & Mr R Hardcastle |
| First Respondent | : | Mr S M Standing & Mr D Singh |
| Second Respondent | : | No appearance |
| Third Respondent | : | No appearance |
Solicitors:
| Appellant | : | Corporate Counsel Lawyers |
| First Respondent | : | Friedman Lurie Singh & D'Angelo |
| Second Respondent | : | No appearance |
| Third Respondent | : | No appearance |
Case(s) referred to in decision(s):
Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, 570
Cahill v Rhodes/Rhodes v Cahill [2002] NSWSC 561
Carr v Larussa Custodian Services Australia Pty Ltd [2017] WASC 42
Curley v Duff [1985] 2 NSWLR 716
Finch v Finch (1867) LR 1 P and D 371
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Fraser v Burswood Resort (Management) Ltd [2014] WASCA 130
In the Estate of Francis Ponikvar (Deceased) [2016] SASC 95
Kupang Resources Ltd v International Litigation Partners Pte Ltd [2015] WASCA 89
McCauley v McCauley [1910] HCA 16; (1910) 10 CLR 434
Miller & Associates Insurance Broking Pty Ltd v BMWAustralia Finance Ltd [2010] HCA 31; (2010) 241 CLR 357
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Powell v Dinwoodie [2012] WASC 139
Powell v Dinwoodie; Orifici as Executor of the Estate of Rosaria Giuseppe Orifici v Orifici [2007] WASC 74
Proud v Proud [2012] WASC 134
Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 90 ALJR 679
Sawyer v McKenzie [2011] WASC 215
Scarpuzza v Scarpuzza [2011] WASC 65
Sugden v Lord St Leonards (1876) LR 1 PD 154
The Estate of Brett Whiteley (Unreported, NSWSC, 13 May 1993)
The Estate of Ralston (Unreported, NSWSC, 2 September 1996)
Welch v Phillips (1836) 1 Moo PCC
Williams v The Minister Aboriginal Land Rights Act 1983 and the State of New South Wales [2000] NSWCA 255
JUDGMENT OF THE COURT:
The appellant appeals from a decision of the primary judge dismissing his claim for proof of a lost will.
The appellant, Tony Larussa, is one of two children of Giuseppe (Joe) Larussa, who died on 28 November 2013. The deceased had two children, the appellant and the second respondent, Anna Carr. Ms Carr is also first respondent to the appeal in her capacity as administrator of the deceased's estate.
The third respondent, Maria Angelina Gennarina Larussa, is the wife of the deceased. She and the deceased separated in about 1991 but they remained legally married at his death. Maria Larussa abided the decision of the court at trial and on appeal.
Consistently with the reasons of the primary judge and the submissions of the parties, these reasons will refer to the parties and Tony's wife, Alexandra Larussa, by their given names.
The pleaded case
In October 2014, Anna was granted letters of administration of her father's estate.
In the action, Tony sought orders that the grant of letters of administration to Anna be revoked. There were two issues at trial. First, did the deceased die intestate, or should the court grant probate in solemn form of a 'lost will', dated 1 August 1991? Second, if the deceased died intestate, should the grant of letters of administration be to an independent trustee company?
The appeal is concerned only with the proof of the lost will.
Tony pleaded:
(1)On or about 3 March 2015 an unexecuted copy of the last will and testament of the deceased was located in the possession of the deceased's former solicitor, Mr Salvatore Martella.[1]
(2)The document is a facsimile copy of the original unexecuted will, a copy of which was executed by the deceased on 1 August 1991.[2]
(3)The deceased's will has been lost. In particulars, Tony alleged:
(a)Prior to his death the deceased kept the lost will in a brown suitcase in a cupboard in his bedroom in a house owned by him in Madeley (referred to at trial as the Kingsway house).
(b)Tony last saw the lost will at the Kingsway house about three weeks before the death of the deceased.
(c)About three weeks after the death of the deceased the Kingsway house was broken into. Tony attended at the house and observed that the lost will was no longer in the brown suitcase or at the house.
(d)Neither Tony nor Anna has been able to locate the lost will.[3]
[1] Statement of claim [17].
[2] Statement of claim [18].
[3] Particulars to statement of claim [20].
Tony sought orders that the lost will be admitted to probate as the last will of the deceased. He pleaded that the presumption that the will has been destroyed should not operate, that the deceased had maintained custody of the will up until at least three weeks before his death, that the lost will made a careful and complete disposition of his property, and that there were no circumstances which point to a probable destruction of the will.[4]
[4] Statement of claim [21].
In her defence, Anna pleaded that the absence of the will after the deceased's death, and the circumstances preceding his death, supported the presumption that the deceased had destroyed the will with the intention of revoking it.[5]
[5] Defence of second defendant [15b].
At trial, it was accepted that Tony had established that the 1991 will revoked all previous wills, that there was evidence of its terms in the form of the unexecuted facsimile copy, and that there was evidence of its execution.[6] The primary issue, both at trial and on appeal, was whether Tony had displaced the presumption of revocation.[7] As the party propounding the lost will, Tony bears the burden of proving that the deceased did not revoke it.
[6] Primary reasons [14] and [16].
[7] Primary reasons [15] - [16].
Tony put his case on the alternative bases that the lost will had been removed from the Kingsway house, presumably when the house was broken into; or it had been lost in the period of about 22 years from when it was executed.[8]
[8] Trial ts 561.
The evidence at trial
Tony and Anna gave evidence at trial. The trial judge also received affidavits made in other proceedings by each of them, and a statement Anna made to the police in the inquiry immediately following her father's death.
Evidence was also led at trial from Alexandra and Maria; from Mr Martella, the solicitor who took instructions for the deceased's will and produced the unexecuted copy from his archives; and from Max Turner and Wayne Matthews, neighbours of the deceased who had seen him in his last days.
The last witness was Amid Humd, a retired legal executive with the firm Dunns Corporate Counsel, who had acted for Tony immediately after the death of the deceased. Mr Humd was called by Tony after he had closed his case, pursuant to leave granted by the trial judge.[9]
The will
[9] Blue Appeal Book 26 ‑ 29; primary reasons [45].
The trial judge found, and it is not controversial, that in 1991 the deceased executed a will in terms of the unexecuted facsimile copy before the court.[10] By that will, the deceased disposed of the whole of his estate, requiring his trustees to call in and convert it into money and to hold the residue on trust for Tony (three shares) and Anna (one share).[11] The will made no provision for Maria.
The breakdown of the marriage between the deceased and Maria
[10] Primary reasons [21].
[11] Green Appeal Book 5 - 7.
The deceased and Maria had separated. At about the same time as he made the will, the deceased and Maria consented to orders in the Family Court dividing the property of the marriage between them. The deceased transferred to Maria all of his estate and interest in six pieces of real estate, and also some personal property. Maria transferred to the deceased all of her estate and interest in two properties.[12] This appears to have been the final property settlement between them, although they never divorced.
[12] Orders dated 18 July 1991, Green Appeal Book 94 - 96.
Tony testified about the breakdown of his parents' marriage, and his father's extreme bitterness towards Maria and estrangement from Anna. It is unnecessary to detail his evidence in this regard. By way of example, Tony says that, after he went away for a year, he had a conversation with Joe in which he asked Joe if he had obtained a divorce. Joe said Maria would not sign. Tony asked 'so if you dropped dead, she's still your wife and she'll come and get what's left', to which Joe replied: [13]
'do you think I am stupid? I wouldn’t let her get me again… Anyway, I done a will for you. I've left most of it to you … That bitch took from your mouth to look after that bastard's kids. She's not getting anything from me ever again'.
[13] Green Appeal Book 102 -103 [27]. See also [20] ‑ [26] of the same affidavit.
Tony maintains that Joe only ever referred to Maria as 'the bitch' or 'that bitch'.[14] Alexandra gave evidence to similar effect.[15]
[14] Green Appeal Book 103 [28].
[15] Green Appeal Book 134 [27] ‑ [30].
On Tony's account, he and his wife were close to the deceased.
Anna testified that she remained close to her father, and remained in regular contact with him.[16] It was not disputed that the deceased did not attend Anna's wedding.
[16] Green Appeal Book 165.
Maria saw the deceased occasionally, and said he spoke to her about property matters on a number of occasions.[17] She said that the deceased never did or said anything to the effect that he bore ill will towards her.[18]
[17] Green Appeal Book 186 [12].
[18] Green Appeal Book 185.
Tony's evidence was inconsistent with the deceased at any time having an intention to benefit Maria. His Honour referred to Tony's evidence, but made no findings on it.
The physical custody of the will
Tony and Alexandra testified that the deceased kept the will in a suitcase in which the deceased kept personal papers. The suitcase was kept in a bedroom at the Kingsway house.[19] The trial judge generally accepted the evidence of Alexandra that the deceased told her he had a will, showed it to her, and invited her to read it.[20] His Honour found that the will was kept 'at some point' in a suitcase in the Kingsway house, and that Alexandra saw it there, although not for 'at least 12 months, and probably considerably longer' before the death of the deceased.[21] Tony said that he saw the will in the suitcase approximately three weeks before the death of the deceased. The trial judge did not accept that evidence. [22]
[19] See, for example, trial ts 172 ‑ 173.
[20] Green Appeal Book 135 [46]; trial ts 262.
[21] Primary reasons [31].
[22] Primary reasons [32].
The trial judge was not satisfied that the will remained in the suitcase at the Kingsway home until sometime close to the deceased's death.[23] His Honour made no finding about what had happened to it, for example whether the deceased had moved it to some other place or destroyed it at the Kingsway house, but found that the deceased no longer had a will by the latter part of 2013.[24]
The deceased's relationship with Tony
[23] Primary reasons [54].
[24] Primary reasons [54].
Much of the evidence about the business relationship between Tony and the deceased appears to be uncontroversial. In about 1993, Tony and his father developed a parcel of land, building units on it. Anna said that she helped in the development, and Tony denied that she did.
In 1996, a farm at Three Springs was purchased, and Tony farmed there with Alexandra. There was some controversy about whether Tony contributed to the purchase price, or whether it was paid solely by the deceased out of the proceeds of development and sale of other properties.[25] Later more properties were acquired. Tony and Alexandra's evidence was that Tony worked the properties, took no wages and paid all the outgoings.[26]
[25] Trial ts 256.
[26] Green Appeal Book 103 [32]; Green Appeal Book 135 [45].
In 1998, the deceased was made redundant in his job, and helped on the farms, eventually living on Gracefield Park, Beermullah. Gracefield Park was purchased in 2003. It was about 20 km from Tony's farm at Breera.[27]
The Larussa Pastoral Trust
[27] Green Appeal Book 103.
In 2003, the Larussa Pastoral Trust was settled, with Larussa Pastoral Holdings Pty Ltd as trustee.[28] Tony is the only specified beneficiary. His children and spouse, and the deceased, are class 1 general beneficiaries. The trust deed provides for a second class of general beneficiaries, which can include any person nominated by the Trustee with the consent of the guardian. Tony and the deceased were guardians during their lives. Neither Anna nor Maria benefit under the trust.
[28] In other proceedings in this court it is asserted that Larussa Custodian Services Australia Pty Ltd is now the trustee: see Carr v Larussa Custodian Services Australia Pty Ltd [2017] WASC 42. The change of trustee is not material for the appeal.
The deceased transferred the farming properties purchased in his name to the trustee of the Larussa Pastoral Trust to be held as assets of the trust. The primary judge found that the transfer created a debt owed by the trust to the deceased which is now said to be around $6.5 million.[29] Tony said that debt has been released by the execution of a 'Memorandum of Agreement Mutual Release', dated 27 October 2013.[30] Tony said that the release was an initial step in a proposed restructuring of the trust.[31] Anna has challenged the authenticity of the release and, in her capacity as administrator of the deceased's estate, commenced separate proceedings in the General Division of the court[32] to recover the amount of the debt.[33] Those proceedings are still pending.
[29] Primary reasons [26].
[30] Green Appeal Book 126 ‑ 127.
[31] Green Appeal Book 103 [33].
[32] CIV 2162 of 2016.
[33] Primary reasons [26].
If the release is effective to forgive the trust debts to the deceased, the Kingsway house is the only substantial asset in the deceased's estate. The balance of the considerable property accumulated by the deceased in his life would be held for the benefit of Tony and his family, as beneficiaries under the trust.
The Kingsway house
The deceased retained the Kingsway house in the property settlement with Maria. From about 2003, he lived at the farming property in Beermullah, approximately 100 km from the Kingsway house.[34] The Kingsway house remained vacant, and Tony and Alexandra kept an eye on it.[35] The deceased visited the Kingsway house occasionally; there was conflicting evidence about how regularly he went there. Tony said the deceased went to the house maybe three or four times a year 'if that' before his accident in 2013;[36] Alexandra said the deceased went there more than once a month, although hardly ever in the last year.[37]
[34] Trial ts 256.
[35] Affidavit of Tony Larussa, 12 July 2016, Green Appeal Book 103 [31].
[36] Trial ts 253.
[37] Trial ts 270, 272.
Tony and Alexandra had keys to the Kingsway house. Tony said the deceased had lost his key and had a key only to the security door.[38] Anna said she had keys to the garage and front door.[39] There was no evidence that anyone else had access to the house.
[38] Trial ts 209 ‑ 210.
[39] Trial ts 365.
The trial judge made no findings about how often the deceased would go to the Kingsway house, and who had keys to the house.
The period up to the death of the deceased
Tony testified that, for his last two years, the deceased was unable to drive at night because of deteriorating eyesight, that the deceased did not feel comfortable driving long distances 'the last while before his death', and that he (Tony) drove him everywhere.[40]
[40] Green Appeal Book 104 [37]; trial ts 210.
The deceased was injured by a bull sometime around Easter 2013, and spent about three months in hospital or recovering before returning to Gracefield Park.[41] After his return home, he was unable to walk properly and restricted in what he could do. His neighbour, Mr Turner, described him as 'a broken man'.[42] Mr Turner also said that, from his observations, after his accident the deceased had difficulty driving and just hobbled around or used a quad bike.[43]
[41] Primary reasons [50]; Green Appeal Book 104 [35] (Tony); 136 [49] (Alexandra); 166 [128] ‑ [130] (Anna); 170 [9] (Wayne Matthews); 176 [11] ‑ [12] (Max Turner).
[42] Green Appeal Book 176 [13].
[43] Trial ts 334.
In her witness statement,[44] Maria said that she spoke to the deceased when he was in hospital in 2013, telling him he must not forget that they had two children. She told the deceased that she had made a will leaving her estate to Tony and Anna equally. She asked him if he had a will and he replied that he did not have one.[45] In her evidence at trial, Maria said that the conversation about the will was later, when he was home. [46]
[44] Dated 22 July 2016; Green Appeal Book 184 ‑ 186.
[45] Green Appeal Book 186 [14] - [16].
[46] Trial ts 414, 415.
The evidence was led without objection. The trial judge found that Maria's evidence supported a conclusion that, by mid‑2013, the deceased had destroyed the 1991 will.[47]
[47] Primary reasons [47].
Tony said that he spoke to his father the day before his death, and 'he seemed his normal self'.[48]
[48] Green Appeal Book 104 [39].
One of the deceased' neighbours, Mr Matthews, gave evidence about conversations with the deceased on 26 and 27 November 2013. Part of Mr Matthew's evidence was a statement made on 6 January 2014, in the inquiry into the deceased's death.[49] The trial judge accepted Mr Matthews as a reliable witness. Relevantly, Mr Matthews said that, on 26 November 2013, the deceased asked to have a chat with him 'about what he could do with his will'. Mr Mathews said:[50]
My understanding from what Joe was telling me was that when he separated from his wife Tony stayed with Joe and his sister went with his wife.
Tony was to be left everything from Joe and his sister would be getting her inheritance from his wife.
Joe was asking if he wanted to change his will and leave his daughter something how he would go about that.
I told Joe he should see his solicitor but that it was my understanding that you could change your will at any time and if he wanted to change his will he could.
I felt that Joe was a little confuse[d] about things, almost like he had had someone do his will for him and didn't understand the legal side of it.
[49] Green Appeal Book 169 - 173.
[50] Green Appeal Book 170 - 171 [15] - [20]; Primary reasons [50] - [51].
On the following morning, at about 6.30 am, the deceased told Mr Matthews 'not to worry about the conversation of the previous night as he had spoken to his daughter.'[51]
[51] Primary reasons [52].
Anna also gave evidence about the deceased's last days. She said in her witness statement that she spoke to her father on the morning of 27 November 2013. In oral evidence, she gave this evidence:[52]
Yes. Mrs Carr, can you tell us as best you can recall what were the words said by your father in this conversation about a will?---My dad said words to the effect: Tony wants to take me to Tony’s lawyers to sign a will and documents Tony’s lawyers have done – that Tony has asked them to do. I do not want to go. I do not want to sign. Tony is putting me under a lot of pressure.
Did your father say anything about what the terms of this will were?---Yes. He said that Tony wants dad to leave everything to him and nothing to me.
[52] Trial ts 296.
Anna also said the deceased asked her what would happen if he died and did not have a will. She told him that she, Tony and Maria would all be entitled to share in it.[53]
[53] Green Appeal Book 167 [141]. Anna had also made a statement in January 2014, in which said she spoke to her father for about half an hour on 27 November 2013: Green Appeal Book 180.
The evidence was objected to. Counsel for the respondent submitted that the fact the words were said 'go to the question of whether or not the deceased had an intention or state of mind that was likely to have resulted in the destruction of this will or not'.[54] The trial judge admitted the evidence on the basis that 'the facts that things are said rather than the proof of the contents is relevant to an assessment of the state of mind of the deceased'.[55]
[54] Trial ts 294.
[55] Trial ts 295.
Having outlined Anna's evidence of the conversation,[56] and having observed that some support for it could be found in the evidence of Mr Matthews referred to in [40] above,[57] the trial judge evidently accepted Anna's evidence of the conversation in finding:[58]
The deceased's statement to Maria whilst he was in hospital, his conversation with Mr Matthews the day before his death, and his conversation with Anna, which I accept did occur, support a finding that the deceased did not have a will by the latter part of 2013. Although apparently somewhat confused, the conversation between the deceased and Mr Matthews is consistent with the proposition, apparently stated to Anna, that the deceased was under pressure from Tony to execute a will which left everything to Tony, but that the deceased wished to make provision for his daughter. The fact that he was subsequently told by Anna that intestacy would result in a distribution of his estate between Tony, Anna and Maria, may well have satisfied the deceased that his desire that the whole of his estate not go to Tony could be achieved without him making any will.
Events following the death
[56] Primary reasons [48] ‑ [49].
[57] Primary reasons [50].
[58] Primary reasons [54].
Tony gave evidence that, at their father's funeral, Anna asked him if there was a will, and he told her it was at Kingsway.[59] Anna denied that evidence. She said that she was unaware of any will.[60] She said that she asked Tony about a will before their father's funeral, to find out if the deceased had included a preference for burial or cremation in his will.[61] Tony told her there was no will.[62]
[59] Green Appeal Book 105 [44].
[60] Green Appeal Book 158 [65].
[61] Trial ts 372.
[62] Trial ts 371.
The trial judge did not expressly resolve the difference between them, although it appears he did not accept Tony's evidence.
Both Tony and Alexandra gave evidence that there appeared to have been a break-in at the Kingsway house. The trial judge set out their evidence in his reasons:
Tony said that, a few weeks after the funeral, his wife called him from the Kingsway property and told him that there had been a break‑in at the Kingsway property. He went to the property where he found a window broken but none of the outside doors had been forced.
Alexandra Larussa said that she went to the Kingsway house sometime after the deceased's funeral and before Christmas where she observed a broken window and the suitcase in which the deceased kept his papers open, with all the papers strewn about. She did not observe anything missing. Some gold ingots were 'clearly visible on the floor' and had not been taken. She said that she telephoned her husband and said 'I can't understand who would break in and not take anything'.[63]
[63] Primary reasons [28] ‑ [29].
The trial judge accepted Alexandra as a reliable witness and apparently accepted her evidence about the broken window. His Honour did not accept that it was related to the lost will:[64]
I am not satisfied that, whatever may have resulted in there being a broken window at the Kingsway property, any inference can reasonably be drawn that the event was associated with the removal of the will from the brown suitcase by someone other than the deceased.
The applications for administration
[64] Primary reasons [54].
Tony engaged Dunns Corporate Counsel, a Melbourne based firm of solicitors, to act for him. In a letter to Anna dated 30 December 2013, sent on behalf of Tony, the solicitors advised that Tony intended to proceed with a grant of letters of administration. [65]
[65] Green Appeal Book 10. The letter is, on its face, a response to a letter from Anna which is not in the appeal book.
On 16 October 2014, solicitors acting for Tony wrote to the Probate Registry of the Supreme Court foreshadowing an application for letters of administration, and said that they were informed the deceased did not leave a will.[66] At about the same time, Anna was advised that Tony requested to be joined in her application for letters of administration.[67]
[66] Green Appeal Book 12.
[67] Green Appeal Book 14.
On 20 October 2014, Tony swore an affidavit in support of his application for the grant of letters of administration, in which he deposed that he had made careful search and inquiry to ascertain whether there was a will of the deceased, and to the best of his knowledge and belief there was no will and the deceased died intestate.[68]
[68] Green Appeal Book 80 [10] - [11].
On 27 October 2014, solicitors for Tony again wrote to the court about his proposed application for letters of administration.[69]
[69] Green Appeal Book 18.
On 17 December 2014, Tony swore an affidavit for filing in the Probate Division, in which he deposed that his father died intestate.[70]
[70] Green Appeal Book 66.
On 19 December 2014, Tony commenced proceedings against Anna, seeking revocation of the letters of administration, and a grant of letters of administration to the Public Trustee.[71]
[71] Green Appeal Book 27.
On 9 March 2015, Tony swore an affidavit in proceedings between Anna and Larussa Pastoral Holdings Pty Ltd. In it, Tony said that his father made a will which he had sighted several times, and which was located in the Kingsway house in a suitcase containing the deceased's personal papers.[72]
[72] Green Appeal Book 21 [12].
On 4 June 2015, in an affidavit of scripts, Tony said the scripts of which he was aware were the 1991 will copy and 'a will (the will), of which I cannot recall the date'. He deposed to where the will had been kept, that he had last seen it about three weeks before the deceased's death, and that about three weeks after the death the will was not where it had been stored.[73] He did not then mention the break-in at the house, or that the contents of the suitcase had been strewn around.
[73] Green Appeal Book 86 [1], [6] - [10].
On 10 October 2015, Tony made an affidavit in proceedings against Anna in which he stated that although it was known that the deceased had made a will, a thorough search had failed to locate it.[74]
[74] Green Appeal Book 84 [3].
Tony made a further affidavit of 21 August 2015, in answer to an application by Anna for orders under s 92 of the Trustees Act 1962 (WA), and her evidence that, in December 2013, Tony had told her that he had no knowledge of any will.[75] In this affidavit, Tony asserted that he told Anna that the deceased had a will and told her where it was and said that it was a few weeks after he told her about the will that the property was broken into.[76]
[75] Green Appeal Book 69.
[76] Green Appeal Book 71 [10] - [12].
The decision of the trial judge
Proof of lost wills
The trial judge considered what must be established to prove a lost will by reference to the factors identified in Curley v Duff.[77] His Honour found, and it is not challenged, that the only issue to be determined was whether the plaintiff had displaced the presumption of revocation.[78]
[77] Curley v Duff [1985] 2 NSWLR 716, 718 - 719.
[78] Primary reasons [16].
A will may be revoked by the testator, or some person in the testator's presence and by the testator's direction, burning, tearing or otherwise destroying it to give effect to the intention of the testator of revoking it.[79] There is a long established presumption that a will which is shown to have been in the possession of the testator, but which cannot be found after his death, has been destroyed by the testator with the intention of revoking it. We deal with the presumption in more detail in the consideration of Ground 1.
Findings on credibility
[79] Wills Act 1970 (WA) s 15.
The trial judge concluded that neither Tony nor Anna was a satisfactory witness, and that he did not consider anything that either said was reliable, unless concerned with an uncontroversial matter.[80] His Honour observed that both exaggerated their evidence in relation to aspects of the evidence they considered favourable to their case.[81]
[80] Primary reasons [9].
[81] Primary reasons [8].
His Honour found the evidence of Maria, Alexandra, Mr Martella, Mr Turner and Mr Matthews to be reliable.
The evidence of Mr Humd was adduced on a limited basis - to rebut a possible claim of recent invention. The trial judge found that it did not assist in resolving the issues in contention.[82]
Findings
[82] Primary reasons [10], [46].
The trial judge rejected the case advanced by Tony that the will was at the Kingsway house up to about three weeks before the death of the deceased, that the house had been broken into some time after the deceased's funeral, and that it should be inferred that the will was stolen in the break-in.
The rejection of that case should be put in context. There are some background facts on which the appellant relied at trial and which the trial judge either accepted or, in some cases, made no finding adverse to the appellant.
The trial judge found that the will was, at least for some time, kept in the suitcase in the deceased's bedroom at the Kingsway house. His Honour accepted the evidence of Alexandra who said that the deceased opened the suitcase and showed her the will.[83]
[83] Trial ts 261.
On the evidence, the deceased, Tony and Alexandra knew where the will was kept. Anna said ‑ and it does not appear to have been in dispute ‑ that she was unaware of any will before the death of the deceased.[84] That is consistent with Tony's evidence that, at the funeral, Anna asked him if there was a will.[85]
[84] Green Appeal Book 158 [65].
[85] Green Appeal Book 105 [44].
The trial judge found that the deceased had told Maria that he had no will, and that this supported a conclusion that, by mid-2013, the deceased had destroyed the 1991 will.[86]
[86] Primary reasons [47].
His Honour also found that the evidence of the deceased's conversations with Anna and Mr Matthews in the days immediately before his death, supported a finding that the deceased did not have a will by the latter part of 2013.[87]
[87] Primary reasons [54].
The trial judge found that whatever resulted in there being a broken window at the Kingsway house, he was not satisfied that an inference could reasonably be drawn that the event was associated with someone other than the deceased removing the will. If the will was not taken in that event, it is unnecessary to consider whether it could reasonably be concluded that the broken window was associated with entry to the house. The evidence on that issue was inconclusive.[88]
[88] Trial ts 213 - 214 (Tony); 265 ‑ 266 (Alexandra).
In summary, the trial judge made no positive finding about what had happened to the will, but was not satisfied that the presumption of destruction had been displaced.
The appeal
Tony appeals on six grounds. In substance, he challenges various of the factual findings of the trial judge that led him to conclude that the presumption that the deceased had destroyed the will with the intention to revoke it had not been rebutted.
The appellant's primary case at trial, and repeated on appeal, was that the will was stolen from the Kingsway house.[89] Tony, Alexandra, Maria and Anna all testified at trial. It was not put to any of them that they took or destroyed the will and there was no evidence that any of them did. On the appellant's case, the possibilities are that the will was taken by one of them or by a stranger.[90] The first alternative was not proved, or even directly alleged. The second alternative, that a stranger took the will and another document but nothing else, is glaringly improbable. It is not surprising that the case advanced at trial did not succeed.
[89] Appeal ts 19 - 20.
[90] Who, taking the will and perhaps another document, ignored valuables.
Rejecting that case does not determine the issue against the appellant. It is still necessary to consider whether, in all of the proved circumstances, it is more probable that the deceased revoked his will by destroying it.
Appeals and findings of fact
The High Court restated the principles governing an appeal on a question of fact in Robinson Helicopter Company Incorporated v McDermott.[91]
A court of appeal conducting an appeal by way of rehearing is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony' or they are 'glaringly improbable' or 'contrary to compelling inferences'.
[91] Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 90 ALJR 679 [43] (footnotes omitted), affirming earlier statements in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [28] ‑ [29] and Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; (2010) 241 CLR 357 [76] that the appellate court should not shrink from giving effect to its own conclusion, even where the conclusion of the trial judge is influenced by an opinion concerning the credibility of witnesses, where the findings at trial are demonstrated to be wrong. The last sentence of the quoted passage is a reference to findings of primary fact involving credibility considerations.
Tony bears the burden in the appeal of not merely showing that his contentions might be available or even correct, but of showing that the trial judge's conclusions should be reversed.[92]
[92] Williams v The Minister Aboriginal Land Rights Act 1983 and the State of New South Wales [2000] NSWCA 255 [60]; Fraser v Burswood Resort (Management) Ltd [2014] WASCA 130 [131].
Two related matters bear on whether Tony can establish error. First, as the party propounding the 1991 will, he bears the onus of proof;[93] second, unless the evidence demonstrates that it is more probable that the will has been lost, or was destroyed by the deceased without the intention to revoke it, the presumption that the deceased destroyed it with the intention of revoking it will apply.
[93] Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, 570.
Ground 4
Tony's credibility was central to the action before the trial judge. It is convenient to deal first with ground 4, which challenges his Honour's adverse findings on Tony's credibility. In ground 4, Tony alleges:
His Honour should have accepted, and erred in failing to accept, the appellant's evidence that he had seen the testator's will in its usual place, the brown suitcase, about three weeks before his father's suicide, rendering it even less likely that the testator had destroyed the will before his death. None of the reasons given by his Honour supported his decision not to accept the appellant's evidence.
In finding that neither Tony nor Anna was a satisfactory witness, the trial judge said:[94]
Both demonstrated a persistent refusal to give direct answers to questions put to them in cross‑examination. The manner in which each gave evidence led me to conclude that answers were given only in a way which the witness thought would be favourable to their case. Both exaggerated their evidence in relation to aspects that they considered favourable to their case. … The reliability of their evidence was significantly affected by the obvious antagonism which they each feel toward the other.
[94] Primary reasons [8].
There was ample material to support the trial judge's assessment.
The trial judge based his assessment, in part, on how Tony gave his evidence. The submissions of the respondent cite many examples from Tony's testimony where repeated questions were required before an answer was given, questions were answered with a question, and occasions when the trial judge intervened to ensure answers were given.[95] Consideration of the transcript bears out the respondent's submissions in this respect. There can, of course, be various explanations for why a witness answers in a particular way, including failure to understand the question, or impatience with questions that the witness perceives as irrelevant. This is an area where the trial judge has a distinct advantage from an appeal court confined to the transcript. His Honour was able to see the way in which the witness responded in the context of the whole of his testimony.
[95] White Appeal Book 64 ‑ 65.
On the critical issue of when Tony last saw the will, the findings of the trial judge ‑ rejecting Tony's evidence ‑ were well founded.
Tony testified that he last saw the signed original of the will about three weeks before his father's death, when he was putting his father's naturalisation papers back into the suitcase at the Kingsway house.[96] Tony identified the document produced from the files of Mr Martella as the will he had read.[97] He said that he had seen and read the will in the suitcase many times.[98] He was emphatic that he saw the annotation as to execution on the front of the document ‑ the document in the suitcase 'had exactly what's on the papers here, because I remember the notations and Martella & Co and everything else'.[99]
[96] Trial ts 202.
[97] Trial ts 173.
[98] Trial ts 173.
[99] Trial ts 173.
Mr Martella's evidence was that he would never endorse a note as to execution on the original executed copy of a will. That evidence was not challenged and, as his Honour said, accords with common sense. [100] His Honour did not err in rejecting Tony's evidence of seeing the will.
[100] Trial ts 280; primary reasons [33].
The appellant submits that his Honour should have found that Tony had not understood that he was being asked about the original will, or that he was mistaken. In examination‑in‑chief, Tony referred to the notations in a manner which might allow for some uncertainty. Any uncertainty would have been dispelled by the cross examination.[101]
[101] Trial ts 198 ‑ 199.
The most favourable characterisation, from the appellant's perspective, is that Tony was mistaken but giving the answer he thought most favourable to his case.
The trial judge found that Tony's evidence that he had read the will many times before the death of the deceased was improbable.[102] In written submissions, the appellant challenged the finding that Tony said he had read the will 'many times', asserting that he never said that.[103] There is no merit in that contention. Tony used those exact words in evidence in chief.[104] The comment that the evidence was improbable was well open to the trial judge.
[102] Primary reasons [34].
[103] Appellant's submissions [16].
[104] Trial ts 173.
In written submissions, the appellant also challenged the finding that Tony 'provided no logical explanation of why he would have gone through his father's personal papers …'.[105] The submission quotes selectively from the reasons of the trial judge. His Honour said:[106]
His evidence that he read the will many times before the deceased died is most improbable. Tony provided no logical explanation as to why he might have gone through his father's personal papers stored as they were in a suitcase in a cupboard in his father's bedroom. Even if he had cause to go through his father's personal papers, there is no logical reason that he would re‑read the will each time, or at least on many occasions, given that he said that his father told him of its contents and showed it to him shortly after it was made.
[105] Appellant's written submissions [19.3].
[106] Primary reasons [34].
The cases emphasise that the objective probabilities and the apparent logic of events are often a better guide to assessment of the weight to be given to evidence than a necessarily subjective view as to the manner in which a witness gave evidence.[107] His Honour properly addressed the question of the apparent logic of the events described by Tony. No error is revealed in his assessment in that respect.
[107] See, for example, Fox v Percy [31].
The appellant also challenges the finding that Tony's conduct after his father's death was inconsistent with his believing that his father had died leaving a will. His Honour referred to the period from December 2013 to December 2014 during which, on several occasions, Tony asserted on oath, and through his solicitors, that the deceased died without leaving a will.[108] We have set those occasions out above. That evidence of Tony's conduct provides objective support for the judge's rejection of this aspect of Tony's evidence.
[108] Primary reasons [35] - [39].
The trial judge found that Tony's conduct supported an inference that his evidence about seeing the will three weeks before the deceased's death, and that it may have been removed in a break in, are recent inventions designed to fortify his case. [109]
[109] Primary reasons [44].
The evidence of Mr Humd had been adduced at trial specifically to rebut the suggestion of recent invention.[110] Mr Humd had been a 'legal executive' working for the solicitors Dunns Corporate Counsel. Shortly after his father's death, Tony engaged Dunns to act for him.
[110] Trial ts 384.
In his witness statement, Mr Humd said that Tony told him that about the will made in 1991, that the will had been kept in the suitcase at the Kingsway house, and that a few weeks after the funeral there was a break‑in in which the will and some other papers were taken.[111] In oral evidence, he said that he tried to locate a file copy to enable them to prove the missing will, and he made inquiries with the legal practice authorities in Western Australia to try to locate the solicitor who had prepared it.[112] He said:[113]
Mr Larussa never gave instructions to me in any other form other than he believed there was a will at the home in a cardboard suitcase, I think it was, and it was missing. He offered various explanations of why it was missing. The fact is, it was missing.
[111] Green Appeal Book 187 - 188, [3].
[112] Trial ts 450.
[113] Trial ts 456, also at ts 451.
Mr Humd explained why, despite those instructions, affidavits were prepared in which Tony deposed to the deceased having died intestate. In short, Dunns did not regard the estate as significant, there was considerable animosity between the parties, and Dunns had other more pressing matters. His intention had been to settle the matter - 'appoint a town agent, express our condolences and move on'.[114]
[114] Trial ts 448.
Some aspects of Mr Humd's evidence are unclear. He described what was said in his witness statement as a summary of events based on his overall knowledge of the matter. He agreed that he had no direct recollection of when Tony told him about the break-in, but said 'it would have been in the earlier stages of the matter. It may have been in the first stages of the matter.'[115] While he produced a note which referred to Tony telling him about Mr Martella, he agreed that ' it wasn't a strict diary as in date order, but more aide memoire as to various conversations I was having'.[116] He could not specifically recall conferring with Tony at the time he made the note.[117]
[115] Trial ts 464.
[116] Trial ts 460.
[117] Trial ts 460.
The trial judge found that the testimony of Mr Humd was of no assistance in resolving the issues in contention.[118] On the specific issue of when Tony had told Mr Humd about the break-in, his Honour found the evidence was so vague and general as to events and timing of events that it provided no support for Tony's evidence that he had told Dunns at the outset about the will in the suitcase and the break-in.[119] The appellant has not demonstrated that the finding was not open to the trial judge.
[118] Primary reasons [10].
[119] Primary reasons [46].
The finding of recent invention was, in any event, only one strand of his Honour's reasoning in rejecting Tony's evidence. The appellant has not demonstrated that the trial judge erred in other respects. Those other respects amply justified the rejection of Tony's evidence. We are not satisfied that ground 4 has been made out.
The failure of ground 4 is significant. The judge said, in effect, that, generally speaking, he would not accept any evidence of Tony (or Anna) unless it was uncontroversial or supported by other evidence. Thus the judge, in effect, declined to accept evidence given by Tony of conversations between Tony and the deceased, while they were alone, such as the conversation referred to at [18] above.
Ground 2
Ground 2 alleges:
His Honour erred in failing to give proper (or any) weight to the improbability that the testator would have intended to revoke his will and die intestate, and thereby:
(a)confer a substantial benefit on his wife Maria, from whom he was estranged, and had been estranged for over 20 years, and with whom he had concluded a property settlement after she had left him to live with another man; and
(b)reduce the share of his son in the estate from the three quarters provided by his will (the remaining one quarter to go to his daughter) to less than one third.
The ground conflates the deceased's intention to revoke his will by destroying it and the intention to achieve the distribution of his estate prescribed by s 14 of the Administration Act 1903 (WA) should he die intestate. It also assumes that, at the time he destroyed the will, the deceased knew that Maria would benefit when they had been estranged for over 20 years, but not formally divorced.
There is no finding and no evidence that the deceased was aware of the operation of intestacy rules. Any assumption that he was is not consistent with Anna's evidence, accepted by the trial judge, that the deceased asked her what would happen if he had no will. That conversation was only the day before he died. The trial judge found that the will had been destroyed by the time of the deceased's conversation with Maria referred to in [37]. It should be inferred that the deceased was then unaware of the consequences of intestacy with regard to any benefit to Maria, or the effect of intestacy on the benefit to Tony.
Further, the substantial change in the nature of the property between 1991 and 2013 owned by the deceased is capable of explaining a change in the deceased's testamentary intentions. Most of the property was no longer held in the name of the deceased, but rather by the Larussa Pastoral Trust. In substance, the beneficiaries of that trust were Tony, the deceased, and Tony's family. Neither Anna nor Maria obtained any benefit under the trust. In circumstances where the majority of the deceased's properties were held by the trust, it is not inherently unlikely that the deceased may have wished to alter the distribution of his property effected by a will prepared at a time when substantially all of the deceased's property had been held in his own name.
Ground 2 has not been established.
Ground 3
Ground 3 is based on the trial judge's general acceptance of the credibility of Alexandra. The appellant alleges:
Having found that:
(a)the original will had been seen about a year before the testator's suicide by Alexandra (the appellant's wife) in a brown suitcase in which the testator kept his important papers, at a house he owned in Kingsway (but in which he was not living); and
(b)a short time after the testator's funeral she went to the Kingsway house and found a window broken, the brown suitcase open and its contents strewn across the floor; and
(c)when the appellant went to the house later, the will was missing, his Honour should have found that it was unlikely that the testator had destroyed his will at some time after Alexandra had seen it and that it was probable that the original will had been stolen, and not destroyed by the testator.
This ground can only succeed if the appellant successfully challenges his Honour's finding that the deceased had destroyed the 1991 will by the latter part of 2013. His Honour found Alexandra's evidence supported a finding that she had seen the will 12 months or more before the death of the deceased. Paragraphs (b) and (c) of ground 3 assume or invite an inference that the will was in the house continuously from when it was last seen by Alexandra to when she found the broken window. On the trial judge's findings, any such assumption cannot stand. In any event, the evidence at trial did not support, much less require, an inference to that effect.
Further, as we have explained elsewhere in these reasons, the trial judge did not err in rejecting the inference that the will had been stolen in the break-in. Moreover, Alexandra's evidence was that she was uncertain that the broken window was big enough to enable anyone to enter through it, estimating the broken part as about 35 ‑ 40 cm.[120] Acceptance of Alexandra's evidence did not sustain, much less require acceptance of, the appellant's claim.
[120] Trial ts 265 ‑ 266.
Ground 3 has not been established.
Grounds 1, 5 and 6
The appellant's submissions group grounds 1, 5 and 6.
These grounds allege:
1. Having found that:
(a)the copy of the 1991 will (the true copy) produced by the solicitor who prepared and witnessed the execution of the original was a true copy of the original, and that the original had been duly executed by the testator; and
(b)the will had made a careful and complete disposition of the testator's estate,
his Honour should have held, and erred in failing to hold, that there was no evidence of circumstances pointing to a probable destruction of his will by the testator with intention to revoke his 1991 will, that the presumption of revocation of the original, which could not be produced, was rebutted; and that the true copy should be admitted to probate.
5. Although his Honour accepted the evidence of a neighbour of the testator, Wayne Matthews, two days before his death the testator had asked him how he would go about changing his will, his Honour wrongly failed to consider that this evidence further rebutted any presumption that the testator had revoked his will.
6. His Honour erred in treating the evidence of Maria (the testator's estranged wife) and of Anna (his daughter) as supporting an inference that the testator had probably destroyed his will.
In submissions, counsel for the appellant contended:
(1)The will had been kept in a suitcase in a cupboard at the Kingsway house which, although owned by the deceased, had not been his home for 12 years. During that time, he resided at Beermullah, about 100 km away.[121]
(2)There was evidence at trial that the deceased seldom went to the Kingsway property, and, in the last years of his life, never drove any distance.[122]
(3)The financial arrangements between the deceased and Maria had been effected in 1990 or 1991, following a bitter separation, and the deceased and Maria remained estranged to his death.[123]
(4)The deceased had expressed to Tony in 1991 or 1992 an intention not to benefit Maria by his will, and there was never any suggestion that he was going to change that intention.[124]
(5)The evidence at trial was of continued affection by the deceased to Tony. They bought and worked farms together. The farms were put in the name of the deceased, but most of the work developing them was done by Tony and Alexandra.[125] It is highly improbable that the deceased would have revoked his will without telling Tony and Alexandra.[126]
[121] Appeal ts 5.
[122] Appeal ts 5, 17, 40.
[123] Appeal ts 7 ‑ 10, referring, among other things, to the evidence outlined at [18] ‑ [19] above.
[124] Appeal ts 11 ‑ 12.
[125] Appeal ts 14 ‑ 15.
[126] Appeal ts 17 ‑ 18, 27 ‑ 28, 40.
In short, the appellant submitted that there are no relevant facts supporting the probability of the deceased changing his mind about the disposition in his will. The evidence points to the improbability of his changing his mind.[127]
[127] Appeal ts 14.
A difficulty apparent in dealing with ground 1 is that the submissions in support of it go beyond the ground and rely in part on matters on which the trial judge made no specific findings. No ground of appeal complains of the judge's failure to make findings in relation to any aspects of the evidence. In any event, we are satisfied that the appeal can be determined on the evidence the trial judge said he accepted and the findings he made.
The presumption of destruction
In McCauley v McCauley,[128] all members of the court referred to the statement of the rule by Lord Wensleydale in 1836 in Welch v Phillips.[129] Griffiths CJ and O'Connor J each quoted the following passage:
The rule of the law of evidence on this subject, as established by a course of decisions in the Ecclesiastical Court, is this: that 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. It is a presumption founded on good sense; for it is highly reasonable to suppose that an instrument of so much importance would be carefully preserved, by a person of ordinary caution, in some place of safety, and would not be either lost or stolen; and if, on the death of the maker, it is not found in his usual repositories, or else where he resides, it is in a high degree probable, that the deceased himself has purposely destroyed it. But this presumption, like all others of fact, may be rebutted by others which raise a higher degree of probability to the contrary. The onus of proof of such circumstances is undoubtedly on the party propounding the will.[130]
[128] McCauley v McCauley [1910] HCA 16; (1910) 10 CLR 434.
[129] Welch v Phillips (1836) 1 Moo PCC, 299, 302.
[130] McCauley v McCauley (438), (446).
The decision in McCauley v McCauley authoritatively establishes that if a will known to have existed and last known to have been in the possession of the deceased cannot be found after death, it is presumed that the deceased destroyed it with the intention of revoking it. The appellant did not suggest otherwise. The presumption is one of fact, and may be overcome by facts showing a higher degree of probability that the will was accidentally lost or destroyed rather than destroyed with the intention to revoke it or, more generally, could not be produced for some reason other than that it was destroyed by the deceased with the intention to revoke it.[131]
[131] McCauley v McCauley (442), (447), (449), (455); Cahill v Rhodes/Rhodes v Cahill [2002] NSWSC 561 .
The strength of the presumption of revocation varies according to the facts.[132] In other words, the circumstances of the case, including the facts concerning the character of the deceased's custody of the will, will influence what facts and evidence are necessary to rebut the presumption. In The Estate of Brett Whiteley,[133] Powell J identified, as relevant circumstances, the character of the testator's custody over the will, and whether the will makes a careful and complete disposition of the testator's property, and said:[134]
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, animo revocandi, by the testator, the presumption is so slight that it may be said not to exist.
[132] Powell v Dinwoodie [2012] WASC 139 [32], and the cases there cited.
[133] The Estate of Brett Whiteley (Unreported, NSWSC, 13 May 1993) [26] - [27].
[134] Citation of authorities omitted.
Further explanation was given in Cahill v Rhodes/Rhodes v Cahill,[135] where Campbell J said:
What Sugden v Lord St Leonards, and Finch v Finch,[136] 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.
[135] Cahill v Rhodes [68]; cited with approval in In the Estate of Francis Ponikvar (Deceased) [2016] SASC 95 [22].
[136] Sugden v Lord St Leonards (1876) LR 1 PD 154; Finch v Finch (1867) LR 1 P and D 371.
These authorities have been regularly followed in Western Australia.[137] They are, however, as Campbell J said, no more than particular applications of how circumstantial evidence may overcome a factual presumption.
Circumstances relevant to whether the presumption has been rebutted
[137] See Powell v Dinwoodie; Orifici as Executor of the Estate of Rosaria Giuseppe Orifici v Orifici [2007] WASC 74; Scarpuzza v Scarpuzza [2011] WASC 65; Sawyer v McKenzie [2011] WASC 215; Proud v Proud [2012] WASC 134.
Importantly, the authorities identify factual matters that are relevant to the question. In the present case, on the issues identified, there are three particular circumstances to be considered.
The first is the character of the custody of the will during the lifetime of the deceased.[138] The trial judge accepted that the will was kept in the suitcase at the Kingsway house with other personal papers of the deceased. That finding is not challenged.
[138] McCauley v McCauley (438); Cahill v Rhodes [59].
The trial judge made no other findings regarding the arrangements for custody of the will. The way in which it was kept makes it unlikely that it was lost unless it had been removed from the suitcase and kept at some other, less secure, place in the period from when Alexandra last saw it.
The deceased, Tony and Alexandra were proved to have known where the will was kept. The evidence was that Anna became aware for the first time of the existence of the will when she spoke to Tony after the death of the deceased. There is no evidence that anyone else knew. There was no evidence and no suggestion that any of Tony, Alexandra or Anna removed the will from the suitcase during the deceased's lifetime. If, as the judge found, it was taken from the suitcase, the probable explanation is that it was the deceased who took it.
The second relevant matter is the dispositions under the will.[139] It was not in dispute that the 1991 will provided for the whole of the estate of the deceased. The will was made at about the time the deceased arranged his affairs with Maria regarding the property of the marriage.
[139] McCauley v McCauley (438 ‑ 439).
The third issue is whether an examination of the circumstances relevant to the deceased’s testamentary intentions, between the time of the making of the will and the time of his death, reveals anything which shows that he had any reason to revoke the will by destroying it.[140] Among other things, this involves consideration of circumstances bearing on the probability of the deceased changing his or her mind in relation to the dispositions provided by the will, including whether the deceased had any apparent reason to do so.[141] That will involve consideration of what is known as the intentions of the deceased regarding his or her property, and its relation to the provisions of the will.[142]
[140] Sawyer v McKenzie [36]; Cahill v Rhodes [68].
[141] McCauley v McCauley (438 ‑ 439), (448), (454).
[142] McCauley v McCauley (438 ‑ 49), (441), (448), (454 ‑ 455); Cahill v Rhodes [68].
It was not controversial that between 1991 and 2013, the nature of the deceased's estate had changed. Land he owned in 1991 had been developed and sold. Farming properties had been acquired and were held by the Larussa Pastoral Trust. Only the Kingsway house was in the deceased's name. The deceased's major asset may have been a debt owed to the deceased by the trustee, although, on Tony's case, the deceased had forgiven that debt, as referred to further below.
There is no evidence that the deceased did anything to change his will, consequent on the change in nature of his property over the years from 1991 to his death, or to reflect any proposed restructure of the trust. The only evidence in that regard (on which no finding was made) was that Tony had attempted at some time to have the deceased make a new will in Tony's favour.
Tony had also deposed, in an affidavit filed in proceedings between Anna and Larussa Pastoral Holdings Pty Ltd, that in or around June 2013, Larussa Pastoral Holdings, as trustee, decided to reconstruct the trust, 'based on advice received from both the company's accountants and legal advisors'.[143] Relevantly, if that evidence is accepted, the decision to restructure was made at the time when the deceased was either in hospital or recovering from the injuries he received around Easter that year. The trial judge made no findings about the restructure, apart from referring to the dispute about the 'mutual release' summarised above at [30]. In circumstances where that dispute is the subject of separate proceedings, that is not surprising. On the evidence it is not possible to make more detailed findings.
[143] Green Appeal Book 20 [2]; see also Green Appeal Book 103 [33].
Tony and Anna are the only named beneficiaries in the 1991 will. If the deceased destroyed the will, the alternatives are that:
(1)he intended to later make another will altering the provision he had made for Tony or Anna, or giving some or all of his property to someone who was not presently provided for, but did not get around to making another will;
(2)he intended to revoke the will but not did not then intend to make another, or did not then know what he wanted to do; or
(3) he did not intend to revoke it. [144]
[144] For example, he destroyed it believing that it had already been revoked.
The trial judge made no findings about the circumstances between 1991 and 2013 that would lead the court to infer that the deceased wanted to adopt any specific one of the alternatives.
The onus of rebutting the presumption is on the party propounding the will.[145] To rebut the presumption, the evidence must show it is more probable that the will was lost or stolen or, more generally, could not be produced for some reason other than that it was destroyed by the deceased with the intent to revoke it.
[145] McCauley v McCauley (438), (446).
Counsel for the respondent submitted that the authorities establish the need for clear and convincing evidence of the existence of a lost will, and that it was not destroyed, citing O'Connor J in McAuley v McAuley[146] and two more recent decisions: The Estate of Ralston,[147] and In the Estate of Frances Ponikvar.[148] In our opinion, the position is correctly stated in The Estate of Ralston, where Hodgson J relied on the principle, established in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd,[149] that the ordinary standard of proof on the balance of probabilities applies, but the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to be proved. Even where the presumption may be weak, the court must still be satisfied that it has been displaced - that is, in this case, the court must feel an actual persuasion that the deceased did not destroy the will with the intention to revoke it.
Disposition
[146] McCauley v McCauley (452). Isaacs J, consistently with earlier authority, spoke of the need for the court to feel 'moral conviction' from the proved circumstances that the deceased did not destroy the will (455).
[147] The Estate of Ralston (Unreported, NSWSC, 2 September 1996) (Hodgson J).
[148] In the Estate of Frances Ponikvar (Deceased) [51].
[149] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, 449 - 50; see also The Estate of Brett Whiteley [26].
Ground 6 alleges that the judge erred in treating the evidence of Maria and of Anna as supporting an inference that the testator had probably destroyed his will.
Ground 6 does not accurately record the trial judge's findings regarding Anna's evidence. His Honour found that the evidence of her conversation with the deceased the day before his death, together with the evidence of Maria and of Mr Matthews, supported a finding that the deceased did not have a will by the latter part of 2013. [150] His Honour said:
Although apparently somewhat confused, the conversation between the deceased and Mr Matthews is consistent with the proposition, apparently stated to Anna, that the deceased was under pressure from Tony to execute a will which left everything to Tony, but that the deceased wished to make provision for his daughter. The fact that he was subsequently told by Anna that intestacy would result in a distribution of his estate between Tony, Anna and Maria, may well have satisfied the deceased that his desire that the whole of his estate not go to Tony could be achieved without him making any will.
[150] Primary reasons [54].
The evidence of the deceased's conversation with Anna was put forward as '[going] to the question of whether or not the deceased had an intention or state of mind that was likely to have resulted in the destruction of this will' and was admitted on the limited basis that what was said was relevant to his state of mind.[151]
[151] Trial ts 294 ‑ 295.
Maria's evidence was admitted without objection and without limitation on how it should be used. Maria's evidence, once admitted, could be given such probative value as the trial judge thought it was worth.[152] The trial judge considered the alternative explanations for why the deceased told Maria that he had no will, and found her evidence of what was said supported a conclusion that, by mid‑2013, the deceased had destroyed the 1991 will.[153] The finding was open to the trial judge. Given the state of the relationship between Maria and the deceased, the judge was entitled to reject the appellant's contention that the proper inference was that the deceased lied to Maria to avoid creating any conflict between them.
[152] Kupang Resources Ltd v International Litigation Partners Pte Ltd [2015] WASCA 89 [144] - [146].
[153] Primary reasons [47].
The judge was entitled to accept Anna's evidence of the conversation she had with the deceased on the morning of 27 November 2013. Contrary to the appellant's submissions,[154] the judge's general observations as to Anna's evidence did not oblige his Honour to reject Anna's evidence as to the content of the discussion she had with the deceased. It is true, as the appellant's submissions emphasise,[155] that Mr Matthews' evidence referred only to the deceased saying he had had a conversation with Anna, and did not say anything as to the content of the conversation. Nevertheless, the judge was entitled to find that Mr Matthews' evidence provided some support for Anna's evidence, in the manner explained in [141] below.
[154] Appellant's submissions [6.5] ‑ [6.10].
[155] Appellant's submissions [6.8].
The appellant's submissions emphasise the evidence concerning the relationship between the deceased and Tony (and Alexandra), on the one hand, and between the deceased and each of Maria and Anna, on the other. Consideration of those relationships might appear to suggest, as the appellant submits, that it was unlikely that the deceased would have intended to revoke his will, which provided for three‑quarters of his property to go to Tony, and one quarter to Anna, and instead to die intestate. However, as we have said in dealing with ground 2, that assumes knowledge on the part of the deceased of the laws of distribution of property upon intestacy. Anna's evidence of her conversation with the deceased the day before he died strongly supports the conclusion that, as at November 2013, the deceased did not know the effect of intestacy. As we have said, the judge accepted Anna's evidence as to this conversation.
Further, we repeat what is said at [103] above.
Ground 5 asserts that the judge wrongly failed to consider that the evidence of the deceased's neighbour, Mr Matthews, further rebutted any presumption that the testator had revoked his will.
Mr Matthews' evidence is set out at [40] ‑ [41] above. Mr Matthews' evidence was of a conversation about the deceased's will and how he would go about changing it. Mr Matthews' evidence does not support a conclusion that the will executed in 1991 remained the deceased's will as at the time of the conversation. Mr Matthews' evidence was that the deceased said that Tony was to be left all of the deceased's assets. That is not what the 1991 will provided. As we have said, the judge evidently accepted Anna's evidence of the conversation she had with the deceased the morning following his conversation with Mr Matthews. Anna's evidence was that the deceased said that Tony was pressing him to sign a will that left all his property to Tony. Further, Anna said that the deceased asked as to the position if he had no will.
As the primary judge, in effect, found,[156] this evidence is consistent with:
(1)The 1991 will having been destroyed prior to November 2013.
(2)During November 2013, Tony was pressing the deceased to sign a new will that left all of the deceased's property to Tony.
(3)As a result, the deceased gave consideration as to whether he could sign a will in such terms, in order to appease Tony, but then change his will. That led to the deceased's conversation with Mr Matthews.
(4)The morning after the conversation with Mr Matthews, the deceased spoke with Anna. He was then told that intestacy would result in a distribution of his estate between Tony, Anna and Maria.
(5)Consequently, the deceased may have been satisfied that he need not make any will, and need not pursue his conversation with Mr Matthews.
[156] Primary reasons [54].
The evidence at trial, accepted by his Honour, was that the will was kept in a secure place to which a very limited number of people had access. The trial judge rejected Tony's case that the will had been stolen, and was amply justified in doing so. The evidence does not provide any alternative explanation for what had happened to the will which the trial judge was wrong not to accept. From the appellant's perspective, to our mind the best alternative inference for what happened to the will is that the deceased removed it from the suitcase for an unknown reason, without any intention to destroy it, and at some subsequent point it was lost. That alternative inference was not articulated to the judge, or to this court. In any event, we are not satisfied that this alternative explanation has been shown to be more probable than that the deceased destroyed the will with the intention to revoke it.
For these reasons, the appellant has not shown error in the primary judge's conclusion that the presumption had not been displaced.
Consequently, grounds 1, 5 and 6 fail.
The notice of contention
In the light of the findings on the appeal, it is unnecessary to decide the notice of contention.
Conclusion
The appeal must be dismissed. We would hear from the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DM
ASSOCIATE TO THE HONOURABLE JUSTICE BEECH31 JULY 2018
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