Larussa v Carr as administratrix of the estate of Giuseppe Larussa
[2016] WASC 332
•14 OCTOBER 2016
LARUSSA -v- CARR as administratrix of the estate of GIUSEPPE LARUSSA [2016] WASC 332
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 332 | |
| Case No: | CIV:1702/2015 | 1 - 5 AUGUST 2016 | |
| Coram: | CHANEY J | 14/10/16 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Claims dismissed | ||
| B | |||
| PDF Version |
| Parties: | TONY LARUSSA ANNA CARR as administratrix of the estate of GIUSEPPE LARUSSA ANNA CARR MARIA ANGELINA GENNARINA LARUSSA |
Catchwords: | Wills Lost will Presumption of destruction with intention of revocation |
Legislation: | Nil |
Case References: | Curley v Duff (1985) 2 NSWLR 716 McLaren v Norton [2006] WASC 305 Orifici as Executor of the Estate of Rosario Giuseppe Orifici v Orifici [2007] WASC 74 Powell v Dinwoodie [2012] WASC 139 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
ANNA CARR as administratrix of the estate of GIUSEPPE LARUSSA
First Defendant
ANNA CARR
Second Defendant
MARIA ANGELINA GENNARINA LARUSSA
Third Defendant
Catchwords:
Wills - Lost will - Presumption of destruction with intention of revocation
Legislation:
Nil
Result:
Claims dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr C M Harris SC & Ms J E Stuckey-Clarke
First Defendant : Mr S M Standing
Second Defendant : No appearance
Third Defendant : No appearance
Solicitors:
Plaintiff : Corporate Counsel Lawyers
First Defendant : Friedman Lurie Singh & D'Angelo
Second Defendant : In person
Third Defendant : In person
Case(s) referred to in judgment(s):
Curley v Duff (1985) 2 NSWLR 716
McLaren v Norton [2006] WASC 305
Orifici as Executor of the Estate of Rosario Giuseppe Orifici v Orifici [2007] WASC 74
Powell v Dinwoodie [2012] WASC 139
1 CHANEY J: Giuseppe Larussa (the deceased) committed suicide on 28 November 2013 at his property known as Gracefield Park Farm in Beermullah. The deceased had two children, Tony Larussa, the plaintiff (Tony), and Anna Carr, the second defendant (Anna). In 1969, the deceased had married Maria Larussa, the third defendant (Maria). They separated in 1990 but never divorced. Tony and Anna are the children of that marriage.
2 In September 2014, Anna, who is a solicitor, applied for a grant of letters of administration on the basis that the deceased had not left a will. Letters of administration were granted to Anna on 27 October 2014 on that basis.
3 Anna and Tony have been estranged, and have had a poor relationship dating back to the time of their parents' separation. There has been, and continues to be, litigation between them concerning matters relating to the estate, in addition to these proceedings.
4 In March 2015, Tony made contact with the deceased's former solicitor, Mr Salvatore Martella, who located a file on which there was an unexecuted copy of a will of the deceased (1991 will copy). The copy bore a notation made by Mr Martella that he, and another solicitor in his practice, had attended on the deceased on 1 August 1991 for execution of the will in the terms of the 1991 will copy.
5 In these proceedings, Tony seeks declarations that the 1991 will copy was a copy of the last will of the deceased, and seeks a grant of probate in solemn form of the 1991 will in favour of an independent executor, and revocation of the grant of letters of administration to Anna on the basis that the lost will is proved.
6 The statement of claim includes an application for orders that, if the 1991 will is not admitted to probate, Anna be removed as administrator on the basis of conflict between her duties to the estate and her personal interests. At the conclusion of the evidence, senior counsel for the plaintiff limited the case for conflict only to the question of whether the executors appointed under the 1991 will should be passed over for an independent executor. The case that, if the 1991 will is not proved, Anna should be removed as administratrix was thus abandoned.
Evidence and credibility
7 The plaintiff gave evidence at trial, and evidence was also adduced from his wife, Alexandra Larussa, Salvatore Martella and a Mr Amid Humd, who described himself as a 'retired legal executive'. In response, Anna gave evidence and called her mother Maria and two other witnesses, Wayne Matthews and Max Turner.
8 Before addressing the issues that arise in the case, it is necessary to say something as to the credibility of both Tony and Anna. Neither was a satisfactory witness. 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. I will deal with the reasons for reaching that conclusion in the context of consideration of particular issues to which the evidence was directed. The reliability of their evidence was significantly affected by the obvious antagonism which they each feel toward the other.
9 In the circumstances, I do not consider that anything said by either Tony or Anna was reliable unless concerned with an uncontroversial matter. Their evidence must be considered with great care, and generally speaking, I would not accept any of their evidence unless supported by other evidence.
10 For reasons that will be explained later, I also consider that the evidence of Mr Humd was of no assistance in resolving issues in contention.
11 On the other hand, the evidence of the other witnesses was generally reliable. Mr Martella, Mr Turner and Mr Matthews had no interest in the outcome of the proceedings and I am satisfied that they gave evidence honestly and to the best of their recollection of events.
12 Although Maria is the third defendant, she filed a notice of intention to abide the decision of the court, and I am satisfied that she gave her evidence honestly and frankly. She gave direct and responsive answers to questions in cross-examination regardless of whether the answer favoured the case of Tony or Anna. I consider her evidence generally reliable.
13 Similarly, Tony's wife, Alexandra Larussa, answered questions put to her in cross-examination in a satisfactory manner. Although her evidence must be assessed having regard to her shared interest in an outcome favourable to her husband, I found her evidence to be generally reliable and undiminished by cross-examination.
Proof of a lost will
14 This court has, on a number of occasions, adopted the observations of Young J in Curley v Duff (1985) 2 NSWLR 716 where his Honour identified five matters that must be established when it is sought to obtain probate of a lost will. They are: first, it must be established there actually was a will; secondly, it must be shown that the will revoked all previous wills; thirdly, the plaintiff must overcome the presumption that when a will is not produced it has been destroyed with the intention of revocation; fourthly, there must be evidence of its terms; and fifthly, there must be evidence of its due execution: McLaren v Norton [2006] WASC 305 [16] (Murray J); Orifici as Executor of the Estate of Rosario Giuseppe Orifici v Orifici [2007] WASC 74 [56] (Hasluck J); Powell v Dinwoodie [2012] WASC 139 [37] (EM Heenan J).
15 The onus of proving all of the issues, including the onus of overcoming the presumption of destruction with the intention of revocation, lies on the party propounding the lost will. The standard of proof is the balance of probabilities: Powell v Dinwoodie [38].
16 In this case, based on the evidence of Mr Martella, the defendants accepted, correctly in my view, that the first, second, fourth and fifth requirements were established. The issue to be determined is whether the plaintiff has displaced the presumption of revocation.
17 Mr Martella gave evidence that he is a retired solicitor, but that in 1991 he acted for the deceased in relation to the preparation of his will. It is apparent that instructions were given to Mr Martella around the time of the resolution of the division of property between the deceased and Maria following their separation, although Mr Martella was unable specifically to recall whether he acted for the deceased in relation to that property settlement because his files, other than those relating to wills and some powers of attorney, have been destroyed.
18 Mr Martella said that in the last week of February 2015, he was telephoned by Tony at his residence but was unavailable. A matter of days later, Mr Martella telephoned Tony and said that he was sure that the deceased had executed a will but that he would check his register to ascertain whether the will was in storage. He subsequently located a file in relation to the deceased's will and provided a copy of the document on that file to Tony.
19 The file contained two documents. The first is a page of notes prepared by Mr Martella when the deceased attended him to provide instructions for the will. The second document on the file is the 1991 will copy which is entitled 'Last will and testament of Giuseppe Larussa'. That document provides for revocation by the deceased of all former wills and testamentary dispositions, and a declaration that the document is the deceased's last will and testament. It appoints Tony and Anna as executors and trustees of the will. The whole of the estate is given to the trustees on trust to call in and divide into four equal shares which are to be held as to three shares to Tony and one share to Anna. In the event of either of those beneficiaries predeceasing the deceased, the deceased beneficiary's share is to be taken equally by any surviving children. The execution clause on the copy of the document on Mr Martella's file is blank, showing neither a date nor any signatures of either the deceased or any witnesses. It does, however, contain a handwritten notation on the coversheet which reads:
1/8/91
Jeremy Knowles and I attended Joe to execute the will.
SM
20 Mr Martella explained that, after execution, it was his usual practice to annotate and sign the cover page of his file copy of the will. That annotated file copy would then be retained on Mr Martella's firm's file. The executed copy was handed to the client.
21 On the basis of Mr Martella's evidence, I am satisfied that the deceased did execute a will in the terms of the 1991 will copy, it contained the usual revocation of all previous wills, its terms are as contained in the 1991 will copy, and that the original document was duly executed by the deceased in the presence of Mr Martella and Mr Knowles.
Presumption of revocation
22 The presumption of revocation of a lost will is explained by EM Heenan J in Powell v Dinwoodie where his Honour said [32]:
As in any case of an attempt to prove a lost will, it is necessary to consider the possibility that the will may have been lost because of deliberate destruction by the deceased or by another person at his direction and in his presence with the intention that the testament should be revoked - Wills Act 1970 (WA) s 15(c). The law has long recognised a 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 animo revocandi and hence revoked - Welch v Phillips (1836) 1 Moo PC 302; 12 ER 824 and McCauley v McCauley (1910) 10 CLR 434. This presumption has been recognised and considered in a series of cases, including Orifici as Executor of the Estate of Rosaria Giuseppe Orifici v Orifici [2007] WASC 74 (Hasluck J); Dalton v Dalton (Unreported, WASC, Library No 970479, 24 September 1977) (Parker J); and by myself in Scarpuzza v Scarpuzza [2011] WASC 65; Sawyer v McKenzie [2011] WASC 215; and even more recently in Proud v Proud [2012] WASC 134. Having reviewed those authorities in Sawyer v McKenzie I observed in that case [36] - [37]:
'It has been said that 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; Sugden v Lord St Leonards (supra) and Finch v Finch (1867) LR 1 P&D 317, cited by Powell J in Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, SCNSW, 13 May 1993 [26] - [27]). Nevertheless the presumption exists and if there are circumstances implying that it is improbable that the will would have been destroyed by the testator animo revocandi, then it will be rebutted but, if not, it will be given such weight as the particular facts and circumstances suggest.
The presumption may be rebutted by evidence that the will simply went missing or was lost, as opposed to having been destroyed with the necessary intention; Re Hampshire [1951] WN 174. The presumption may also be rebutted by evidence that the testator lacked the necessary capacity to revoke the will by destroying it.'
23 The starting point for the plaintiff's contentions is the fact that it is not in issue that the 1991 will existed. He submits that the 1991 will made a careful, deliberate and complete distribution of the deceased's assets, and did so in a way which reflected his personal and family circumstances at the time. The plaintiff contends that there was no event subsequent to the execution of the will which might have caused the deceased to change his testamentary intentions, or, to use the words of Murray J in McLaren v Norton, no other circumstance which points to the probability of the will's destruction with the intention of its revocation by the testator [18].
24 Tony gave evidence in support of those contentions. His evidence was to the effect that his father worked hard and accumulated assets during the course of his parents' marriage. He described, in somewhat vitriolic terms, the circumstances of the breakdown of his parents' marriage and the detrimental effect which it had on his father. He painted a picture of extreme bitterness on the part of his father towards his mother and her relationship with her present partner which Tony suggested had developed prior to his parents' separation. He said that, after their separation, his father told him that he had made a will, and 'left most of it to you', before showing him that will. Although, at the time of his death, the deceased lived at Gracefield Park, he also retained a home in Kingsway, Madeley. Tony said that the last time he saw the signed original of the will was about three weeks before his father's death when he was putting his father's naturalisation papers back into a suitcase at the Kingsway property where his father kept all his important papers.
25 Tony gave evidence that he worked with his father on a farm at Three Springs and at Gracefield Park which was purchased in 2003.
26 In 2003, the Larussa Pastoral Trust was established to hold the farming properties. The general beneficiaries of the discretionary trust were the deceased, Tony, and Tony's spouse, children and children's spouses. It is apparent that the deceased transferred his farming properties to the trustee of the Larussa Pastoral Trust to be held as assets of the trust. That transfer created a debt owed by the trust to the deceased which is now said to be around $6.5 million. According to Tony, on 27 October 2013, he and his father executed a document, drafted by Mr Humd, entitled 'Memorandum of Agreement Mutual Release'. That document was said by Tony to be an initial step in the proposed restructuring of the trust. The authenticity of that document is not accepted by Anna, and an action commenced by Anna in her capacity as administratrix of the deceased's estate to recover the amount of the debt owed by the trust to the estate is a major source of the conflict been Tony and Anna. If, as Tony contends, the memorandum of mutual release was effective to forgive the trust debts to the deceased, then the only substantial asset within the estate is the Kingsway property.
27 Tony said that the deceased had brought the brown suitcase with him from Italy, and kept it in a cupboard in the master bedroom of the Kingsway property. Tony said that he had seen and known that the suitcase contained 'a lot of his old documents and properties he had bought over many years' and that it contained the deceased's will and personal documents. He said that he had seen the will, and that it was signed. During cross-examination, when shown the 1991 will copy, bearing the annotations made by Mr Martella, Tony said that the will which he saw in the suitcase 'had exactly what's on the papers here, because I remember the notations and Martella & Co and everything else'. Tony was emphatic that he saw the annotation as to execution on the front of the document which he saw in the brown suitcase and read many times.
28 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.
29 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'.
30 Against that background, the plaintiff argues that the 1991 will remained with the deceased's other important papers until shortly before his death, that there was no reason why the deceased would destroy his will with the result that his estranged wife and daughter would benefit from his estate, and that the inference should be drawn that some unknown person removed the will from the suitcase by breaking into the Kingsway property shortly after the deceased's death. In those circumstances, the plaintiff argues that the presumption that the deceased destroyed the will with a view to revocation is displaced.
Conclusions as to presumption of destruction
31 I accept the evidence of Alexandra Larussa that, at some point, she saw the lost will in the suitcase in which the deceased kept personal papers. She was asked when she last saw the will to which she responded 'I don't know exactly, but before he died. But I don't know when that was'. She was then asked 'well, just roughly, was it a year beforehand or ..?' She responded 'I think so'. The matter was not pursued further. Her professed inability to say when she last saw the will, and her uncertain response to the subsequent question before the question was completed, renders unreliable any suggestion that she had a positive recollection of seeing the will one year before the deceased's death. Given the unlikelihood that she would have had cause to open and inspect the contents of the deceased's suitcase on any regular basis, I find that Alexandra Larussa had not seen the lost will for at least 12 months, and probably considerably longer.
32 I do not accept Tony's evidence that he saw the lost will approximately three weeks before the deceased's death. There are a number of reasons for rejecting that evidence.
33 Despite having considerable opportunity to resile from his evidence that the document that he saw in the suitcase bore Mr Martella's notation as to execution on the front cover, he firmly maintained that evidence. That was contrary to Mr Martella's evidence, which accords with common sense, that he would never endorse a note as to execution on the original executed copy of a will. I do not accept the plaintiff's counsel's submission that Tony may merely have been mistaken in that evidence because of the focus which had been placed on the 1991 will copy in the course of these proceedings. His evidence on this point was, in my view, a clear illustration of his tendency to give evidence which he considered would support his case, albeit that view was misconceived in this instance.
34 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.
35 Tony's conduct after the deceased's death was entirely inconsistent with a belief that the deceased died leaving a will but that the will could not be found. There are numerous illustrations of his belief to the contrary.
36 Shortly after the deceased's death, Tony contacted his solicitors, Dunns Corporate Counsel (Dunns) (for whom Mr Humd apparently worked, and gave advice to Tony although not a legal practitioner). On 30 December 2013, Dunns wrote to Anna advising that they acted on instructions from Tony and confirmed his intention to proceed with the grant of letters of administration. No mention of any will or lost will was made.
37 On 11 March 2014, Mr Friedman of Friedman Lurie Singh & D'Angelo, solicitors for whom Anna worked, and who acted on her behalf, wrote to Dunns. The letter recited '[a]s you are aware, Mr Larussa died intestate ...'. An application by Tony and Anna, as joint administrators, was foreshadowed. On 12 March 2014, Dunns replied attaching drafts of a proposed application for joint administration and a draft affidavit in support. The draft joint affidavit of Anna and Tony deposed that '[t]he deceased died intestate' and that '[w]e have made careful search and enquiry to ascertain whether there is a will of the deceased and to the best of our knowledge information and belief there is no such will that can be located'. The terms of that affidavit suggest that the plaintiff had not instructed his solicitors that the deceased had died leaving a will which could not subsequently be located.
38 On 16 October 2014, Robertson Hayles Lawyers, who were the Perth agents for Dunns, wrote to the probate registry of the court on behalf of Tony. In that letter they said '[w]e are informed that the late Mr Giuseppe Larussa did not leave a will'. The letter foreshadowed an application for letters of administration on behalf of Tony. On 21 October 2014, Robertson Hayles emailed Anna's solicitors advising that they had that day lodged an application for grant of letters of administration by Tony. On 20 October 2014, Tony swore an affidavit in which he deposed to the fact that the deceased died intestate and that:
I have made careful search and enquiry to ascertain whether there is a will of the deceased. To the best of my knowledge information and belief there is no such will and the deceased died intestate.
39 On 19 December 2014, Dunns, on behalf of Tony, issued a writ seeking revocation of the grant of letters of administration to Anna on the basis of a conflict of interest, and an order granting letters of administration to the Public Trustee. At no time did Tony suggest that he had told Anna or her solicitors of the existence of the will despite his evidence that he had seen a will on numerous occasions prior to the deceased's death. The first time that that assertion was made was on 9 March 2015 in an affidavit sworn by Tony in proceedings CIV 1132 of 2015, which was an action by Anna in her capacity as administratrix to obtain access to documents related to the trust. In that affidavit, he said that he was aware that the deceased made a will which he had sighted several times, and which was located in a cardboard suitcase at the deceased's Kingsway home.
40 On 4 June 2015, in an affidavit of scripts filed in these proceedings, Tony said the scripts of which he was aware was the 1991 will copy and 'a will (the will), of which I cannot recall the date'. He said that the 1991 will copy was in the possession of Mr Martella and that he did not know who has possession or control of the original executed version of the 1991 will copy. In relation to the other script which he identified, which he referred to as 'the will', he said:
I do not know who has possession or control of the will.
The will was located in an old brown suitcase in a cupboard in my father's bedroom at his city house at 59 Kingsway, Madeley in the State of Western Australia.
The last time I saw the will was about three weeks prior to my father's death.
The will had been executed by my father and by his solicitor, Mr Salvatore Martella.
About three weeks subsequent to my father's death, I attended at the Madeley house and the will was not in the place where it had been stored. I do not know what happened to the will.
41 No mention was made of any break-in to the house, nor of the fact that the contents of the suitcase had been strewn around the bedroom.
42 The assertions that there had been a break-in and that papers had been strewn around were subsequently made in an affidavit of 21 August 2015. That affidavit was sworn in answer to an application by Anna for orders pursuant to s 92 of the Trustees Act 1962 (WA). In her affidavit, Anna deposed to the fact that sometime in December 2013, she and Tony had a discussion in relation to whether the deceased had a will, and that Tony told her that he had no knowledge of any will, but that if he did have one then Mr Martella would have made it at the time of the family court proceedings following their parents' separation. Tony agreed that they had a conversation about a will in December 2013, but denied Anna's version of that conversation. He asserted that he told her then that their father had a will, that he (Tony) did not have it, but it was at the Kingsway residence. He said that it was a few weeks later that the Kingsway property was broken into. He said that a short time later he told Anna that the will was no longer at the Kingsway property. In that affidavit he made no mention to Anna of it having possibly gone missing by reason of a break-in at the house.
43 In an affidavit sworn on 10 October 2015, Tony deposed that '[a]lthough it was known that the late Giuseppe Larussa had settled a testamentary will, a thorough search by the plaintiff failed to locate the same'.
44 The long period during which Tony asserted on oath, and through his solicitors, that the deceased died without leaving a will, and his subsequent assertions on oath that there was a will, that he did not know what happened to the will and that it was not in the place where it had been stored, all support an inference that the later assertions that he had seen the will only three weeks before the deceased's death, and that it may have been removed in the course of a break-in at the Kingsway property, are recent inventions designed to fortify the plaintiff's case.
45 During the course of cross-examination as to his numerous statements on oath that his father died intestate, Tony asserted that he had told his lawyers about the 1991 will and the break-in at the Kingsway property. That led to an application by the plaintiff after his case had been closed to reopen and call Amid Humd. That application was granted on the basis that Mr Humd would give evidence which was recorded in a brief statement comprising four paragraphs. Paragraphs 1 and 2 were introductory. Paragraph 3 said:
Tony Larussa requested advice as to what steps he should take in relation to the administration of his father's estate. He told me that his father died in late November 2013 and that at the time of his death Tony believed that his father had intended his estate to be distributed according to the provisions of a will which he had executed in 1991 not long after his estranged parents had had orders made in the Family Court in relation to the disposition of the property of the marriage. He told me that his father had kept the original will in a suitcase in a house he owned at 59 Kingsway Madeley (The Kingsway property) but that a few weeks after the funeral there was a break-in at the Kingsway property and the Will and some other papers had apparently been taken.
46 During the course of his cross-examination, Mr Humd said that the reference to a will executed in 1991 did not accord with his actual recollection of events. Rather, his recollection was that he believed that the deceased had executed a will in 1999. He said that he was unable to reconcile what was in his witness statement with his actual recollection. By [4] of this statement, Mr Humd attached a copy of a page of notes from what he described in his witness statement as his original diary, but which, in cross-examination, he said was not a 'strict diary as in date order, but more aide-memoire as to various conversations'. That note made no reference to a date of any will, any family court orders in relation to disposition of property, the keeping of the original will in a suitcase at the Kingsway property or any break-in at the Kingsway property. When cross-examined about those matters, Mr Humd said that the matters set out in [3] of his statement were not a reference to any specific event, but a summary of events based on his overall knowledge of the matter, gained from a series of meetings and instructions through to and including a meeting with Mr Martella which apparently occurred in early 2015. Mr Humd's evidence was so vague and general as to events and timing of events that it provides no support for Tony's evidence that he told his solicitors at the outset about the will in the suitcase and the break-in at the Kingsway property.
47 Although the burden of displacing the presumption of destruction lies on the plaintiff, the first defendant points to evidence which she contends supports the presumption. In particular, she refers to Maria's evidence that, in or about May 2013, the deceased told her that he did not have a will. Maria said that she spoke to the deceased when he was in hospital in 2013, and asked him whether he had a will. She said that he replied with words to the effect that he did not have one. When cross-examined about that conversation, Maria said that she was positive that he told her he did not have a will. There is no reason for me not to accept Maria's evidence as to that conversation. There are three possible explanations as to why the deceased would have said that he had no will. One is because it was true. A second is that he had forgotten that he had made a will. The third is that he did not tell her the truth, Maria having apparently told him in the same conversation that she had a will which left her estate to both of their children equally. There is no reason to think that the deceased might have forgotten the existence of his will. Nor do I think it likely that the deceased had any reason to lie to his estranged wife as to the fact that he had a will. Maria's evidence supports a conclusion that, by mid-2013, the deceased had destroyed the 1991 will.
48 Anna gave evidence that she had a conversation with her father the morning of the day before his death. She said that she had been told by her husband that her father had called and asked for her to call him back. She said that, when she rang her father back, he asked her what would happen if he died and did not have a will. She replied that his property would then be distributed in accordance with the law and that Maria, Tony and she would be entitled to share in the estate. She said that he replied that he would come to her house either that evening or over the following weekend, but that he did not come to her home that evening.
49 Anna said that, during the telephone conversation with her father, he said words to the effect that Tony wanted to take him to Tony's lawyers to sign a will that Tony had asked them 'to do', but that he did not want to go and did not want to sign the will which Tony had told him left everything to Tony and nothing to Anna. Under cross-examination she maintained her evidence as to that conversation. Tony denied that he asked his lawyers to draw up a will for his father (ts 250).
50 Some support for Anna's evidence that she had a conversation with her father the day before he died can be found in the evidence of Wayne Matthews. Wayne Matthews lives on the other side of the road from Gracefield Park. His father-in-law, Max Turner, lives next door to Gracefield Park. Mr Matthews had known the deceased for about 10 years. In January 2014, he provided a statement to police investigating the death of the deceased. It was not, therefore, prepared for the purpose of this litigation. That statement was tendered in evidence and confirmed by Mr Matthews as true in this trial. He said the deceased had been hospitalised for three months around Easter 2013 having suffered a severe leg injury after being struck by a bull. He said that after the deceased's discharge from hospital, he appeared depressed and frustrated at the limitations which his injuries caused to his capacity to work on the farm. Mr Matthews said that on 26 November 2013, the deceased and Mr Turner came to his house at about 7.00 pm. The deceased asked to have a chat with him 'about what he could do with his will'. He said:
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.
51 Mr Matthews told him that he thought he could change his will at any time, and continued:
I felt that Joe was a little confuse [sic] about things, almost like he had had someone do his will for him and didn't understand the legal side of it.
52 Mr Matthews said that he would ring his solicitor in the morning, presumably to foreshadow that the deceased might contact him. On the following morning, 27 November 2013, the deceased came to his house at about 6.30 am, and told Mr Matthews 'not to worry about the conversation of the previous night as he had spoken to his daughter'.
53 In cross-examination, Mr Matthews said that the conversation he had with the deceased was confusing, and that he did not know whether the deceased was saying that he had a will and wanted to change it. He said that he understood that the deceased was saying to him that he wanted to change his will and asking how he would go about it. He was not challenged on his evidence that the deceased told him on the morning of 27 November 2013 that he had spoken to his daughter and there was therefore no need for Mr Matthews to contact his solicitor.
54 Having regard to all of that evidence, I am not satisfied that the presumption of destruction for the purpose of revocation has been displaced in this case. While I accept that the 1991 will was kept at some time in the brown suitcase at the Kingsway property, the evidence does not satisfy me that it remained there until sometime close to the deceased's death. 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. There is no basis to conclude that Anna removed the will, as seemed to be inferred in Tony's affidavit of 21 August 2015. During cross-examination, Anna said that she did not go to the Kingsway house after her father passed away until around November or December 2014 after she had been appointed administratrix. It was not put to her specifically that she had removed the will from the suitcase, and I do not take the plaintiff now to invite any inference that she did. In those circumstances, there would not appear to be any reason why anybody else would break into the Kingsway property and steal only a will and the memorandum of mutual release which was also said by Tony to have been removed from the suitcase. 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.
55 On that basis, I am not satisfied that the 1991 will was not destroyed by the deceased with the intention of revoking it. The claim for proof of the 1991 will therefore fails.
Removal of administratrix for conflict
56 As noted at the commencement of these reasons, the plaintiff's case that Anna should be removed as administratrix of the deceased's estate in the event that the 1991 will is not proved was abandoned at the conclusion of the evidence. In view of the conclusion which I have reached in relation to the 1991 will, it is therefore unnecessary to deal with the question of conflict.
57 The plaintiff's claim will be dismissed.
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