Payten v Perpetual Trustee Company

[2005] NSWSC 345

CITATION:	Payten v Perpetual Trustee Company [2005] NSWSC 345
HEARING DATE(S):	11 & 12 April 2005
JUDGMENT DATE :	15 April 2005
JURISDICTION:	Equity
JUDGMENT OF:	Austin J
DECISION:	Grant of Probate revoked; letters of administration cta granted, annexing terms of new will as proved

CATCHWORDS:	WILLS - lost will - requirements for recognition of will - effect of s 18A - standard of proof - where evidence of terms of new will is incomplete
LEGISLATION CITED:	Wills, Probate and Administration Act 1898 (NSW) ss 7, 17, 18A, 19
CASES CITED:	Aoun v Clark [2000] NSWSC 274 Atkinson v Morris [1897] P 40 Briginshaw v Briginshaw (1938) 60 CLR 336 Cahill v Rhodes [2002] NSWSC 561 Chichester v Quatrefages [1895] P 186 Curley v Duff (1985) 2 NSWLR 716 Cutto v Gilbert (1854) 9 Moo PC 131; 14 ER 247 Dalton v Dalton (Supreme Court of Western Australia, 24 December 1997, unreported; BC9704735) Finch v Finch (1867) LR 1 PD 371 Gair v Bowers (1909) 9 CLR 510 In the Estate of Brian [1974] 2 NSWLR 231 In the Estate of Ralston (Supreme Court of New South Wales, 2 September 1996, unreported; BC9604329 In the Goods of Petchell (1874) LR 3 P & D 153 In the Will of Cullen (1907) 7 SR (NSW) 29 In the Will of Page [1969] 1 NSWR 471 Kitkat v King [1930] P 266 Nawab Sahib Mirza v Mussammat Umda Khaanam (1892) LR 19 Ind App 83 Pedler v Richardson (Supreme Court of New South Wales, 16 October 1997, unreported; BC9705263 Re Buckley [1952] VLR 107 Re Day (1907) 7 SR (NSW) 484 Re Fairhurst [1976] 1 NZLR 51 Re Hawksley [1934] Ch 384 Sugden v Lord St Leonards (1876) 1 LR 1 PD 154 Whiteley v Clune (No 2); The Estate of Brett Whiteley (Supreme Court of New South Wales, 13 May 1993, unreported)
PARTIES:	Warren Payten (P) Perpetual Trustee Company Limited (D)
FILE NUMBER(S):	SC 103015/04
COUNSEL:	M K Meek (P) L Ellison (D)
SOLICITORS:	Carroll & O'Dea (P) TressCox (D)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

FRIDAY 15 APRIL 2005

103015/04 WARREN PAYTEN V PERPETUAL TRUSTEE COMPANY LIMITED

JUDGMENT

1 HIS HONOUR: Janice Mary Payten ("Ms Payten") died on 26 May 2003, aged 67 years. She made a will dated 7 March 2002 ("the March 2002 Will") in which she appointed the defendant ("Perpetual") as executor. She made a gift of $100,000 to her nephew Warwick, and gave a specific item of jewellery to each of her nieces Joanne, Karen and Lissa. She gave the residue of her estate to Elvira ("Vera") Dibb ("Ms Dibb"), described in the Will as her friend, with a gift over to her nephew Warwick if Ms Dibb predeceased her. The residuary clause specifically mentioned her Commonwealth Bank accounts and her three properties at 13A Laird Close, Shelly Beach, Unit 2/2 Elamang Avenue, Kirribilli and 35-37 Rutherford Street, Yorkey's Knob (sometimes referred to in the evidence as the Port Douglas property).

2 The March 2002 Will was a holograph will completed by hand on a stationer's will form, but there was evidence of its due execution. Probate of the March 2002 Will was granted to Perpetual on 23 September 2003. Ms Dibb survived Ms Payten and is the residuary beneficiary named in the Will. The estate was valued for probate purposes at a net value of $1.458 million (including the Shelly Beach property, which was valued at $340,000), plus Queensland property valued at $115,000.

3 The plaintiff, Warren Payten (aged 75 years), is the brother and only sibling of Ms Payten, and would be entitled to her estate on intestacy, as Ms Payten never married, had no children and survived her parents. He and his wife June Payten have four children, namely Warwick (the pecuniary legatee named in the March 2002 Will), and Joanne, Karen and Lissa (the legatees of jewellery under the March 2002 Will).

The pleadings

4 By a Statement of Claim filed on 26 February 2004, the plaintiff contends that in the period between early 2003 and the end of April 2003 Ms Payten made or adopted a document that was either a will or embodied testamentary intentions which she intended to be her will ("the New Will Document"). The plaintiff contends in the statement of claim that he retrieved the March 2002 Will from safe custody at the Commonwealth Bank Gosford at Ms Payten's oral request early in 2003, and delivered it to her, and that Ms Payten subsequently made statements that the New Will Document existed. But the statement of claim concedes that the New Will Document has not been located, despite searches by the plaintiff.

5 The statement of claim pleads that the terms of the New Will Document were:

(a) express terms that:
(i) "reduced" provision was given by Ms Payten to Ms Dibb than had been given to her by the March 2002 Will, and that the "reduced" provision may have constituted the property at Shelly Beach; and
(ii) a "large" sum of money was given by Ms Payten to Edith Graham, who looked after her before her death; and
(b) an implied term that the March 2002 Will was revoked.

6 According to the Statement of Claim, the dispositions made by the New Will Document are either completely uncertain, or uncertain except as to a gift of the Shelly Beach property to Ms Dibb. Therefore, the plaintiff pleads, Ms Payten either died intestate, or died intestate as to her property with the exception of the disposition of the Shelly Beach property. The statement of claim seeks orders revoking the grant of probate of the March 2002 Will, declarations and orders recognising the effect of the New Will Document, and a limited grant of letters of administration to the plaintiff of the New Will Document as in substance and effect the revocation of the March 2002 Will or the revocation of that instrument except as to a gift to Ms Dibb of the Shelly Beach property.

7 By its defence, Perpetual does not admit and puts in issue the plaintiff's allegations about the New Will Document or his claim to entitlement to the relief sought in the statement of claim.

Ms Payten's living arrangements, up to 2000

8 James Mansfield Payten, the father of Ms Payten and the plaintiff, died on 11 September 1965. Perpetual was responsible for the administration of his estate, and Ms Payten was a beneficiary. Arrangements were made under which Ms Payten and her mother received income payments from Perpetual, presumably investment income from the father's estate. Those income payments continued during Ms Payten's lifetime.

9 After the father's death, Ms Payten and her mother resided with the plaintiff for 2-3 months. Ms Payten told the plaintiff that she did not feel able to live on her own, and so she continued to live with her mother. By his will, the father left the Kirribilli unit in trust for his widow, and to Ms Payten upon her mother's death. Ms Payten and her mother lived together at the Kirribilli unit until the mother died on 30 October 1999.

10 When her mother died, Ms Payten went to stay with the plaintiff and his family at Cooranbong for some weeks and then returned to the Kirribilli unit. Until mid-2000 she lived alternately at Kirribilli and the Shelly Beach property. In mid-2000 she moved permanently to Shelly Beach and hired carers to assist her, from such organisations as "Dial-an-Angel". The Kirribilli unit was then rented out.

Ms Payten's relationships with the plaintiff, Ms Dibb and Ms Graham, up to March 2003

11 In 1998 and 1999 Elvira Dibb was working for the Chris Smith Nursing Service. She became a carer for Ms Payten's mother, and eventually she became a close friend of Ms Payten. Ms Payten's health was good in 1999, but by the end of 2002 Ms Dibb had started to work for her again (on her own account rather than for the Chris Smith Nursing Service) because Ms Payten had an operation for bowel cancer and her health was not good. On her evidence, she remained close to Ms Payten until her death. There is other evidence (described below) that certain events happened regarding cheques and that Ms Payten did not trust Ms Dibb with her cheque book, but according to Ms Graham, Ms Payten told her she remained fond of Ms Dibb after those events. I therefore accept that there was a close friendship between Ms Payten and Ms Dibb in 2002 and 2003.

12 The plaintiff gave evidence that he had a conversation with Ms Payten while she was still living at the Kirribilli unit. His evidence was that she said to him, "I will leave the Kirribilli unit to you or your children on my death." I accept that she said so, but there is no evidence that she ever acted on that statement. The plaintiff also gave evidence which I accept, that in the year 2000 the deceased asked him to assist her with organising her tax returns and other financial matters. He said he organised a filing cabinet and filing system for her and explained how to use it.

13 Edith Graham first came into contact with Ms Payten in the year 2000. At the time, she was working for Dial-an-Angel and was employed to attend at Ms Payten's home as a carer for a 10-day period while she was recovering from an operation. Ms Graham said (and I accept) she became a very good friend of Ms Payten and maintained regular contact after she stopped working for her, and they shared a holiday in Hawaii for a week from about 22 March 2002.

14 Early in 2003, Ms Payten asked the plaintiff to help her sort out her correspondence and accounts, and he spent some weeks doing so. He said that the accounts were substantially in arrears. Ms Dibb said that the plaintiff took all Ms Payten's paperwork to his house to look after, and that is consistent with the plaintiff's evidence.

Ms Dibb's financial relationship with Ms Payten

15 In cross-examination Ms Dibb gave some inconsistent evidence as to her relationship with Ms Payten. She said her duty was to take daily care of Ms Payten in all her needs for 24-hours during the week, but not on the weekends. This included shopping and depositing money at the bank, but she could not recall whether she withdrew money. She said Ms Payten wrote cheques for her for "payment", but there was no regular payment - "It was whatever she felt like at the time" (T 65). She said the amounts varied between $5,000 and $10,000 in respect of a period of two or three months. But later she said that the amounts were not "payments", but rather they were gifts and she did not receive anything for her services, and they acted out of love for one another. She said the arrangement was that when she began to assist Ms Payten, Ms Payten said to her, "If you look after me, I'll take care of you".

16 Ms Dibb said Ms Payten gave her a gift by cheque of $30,000. She was shown a photocopy of a cheque drawn on Ms Payten's account at the Commonwealth Bank dated 6 November 2001 for $30,000. She said Ms Payten was "always" giving her cheques when she needed money, but she could not recall the amounts of the cheques. Later she explained that the $30,000 cheque was to reimburse her because she had paid most of the expenses on an overseas holiday they had taken together, since Ms Payten's credit card had a limit of $3,000 and she had run out of money. Then she appeared to say (at T 78) that there were two cheques for $30,000. She denied that she had forged them.

17 She was asked about another cheque for $5,000 which she had received, and she said that the cheque had been "sent back and stopped, the reason being that it was wrong amount on the cheques that was put on there" (T 71). She said she told Ms Payten to stop payment because they had argued about it. Then she was shown a copy of a letter to Ms Payten from the Commonwealth Bank dated 26 September 2002 telling her that a cheque for $5,000 presented for payment on 25 September had not been paid, giving as the "dishonour answer" the explanation "forged or counterfeit instrument". When shown the letter she said, "Yes, I know this", although she later maintained that she had not seen it. She explained that she had bought some furniture for Ms Payten to use at Ms Dibb's house when Ms Payten came to stay, but Ms Payten said it was too much money. Ms Dibb said she wrote the amount on the cheque but she did not forge the signature. She said she and Ms Payten stopped the cheque but the Bank "put it under 'forgery'". She said the Bank told Ms Payten that it was forgery and wrote her the letter because Ms Dibb had written the cheque, but Ms Payten regretted what occurred. She said Ms Payten gave her the $5,000 six weeks later so she could pay off the credit card that she had used to buy the furniture.

18 It is not necessary for me to make direct findings on the matters summarised in my last three paragraphs. The importance of this evidence relates to the credit of Ms Dibb and provision of a motif for Ms Payten to make a new will.

19 The plaintiff gave evidence that on three occasions between 2001 and the date of her death, Ms Payten told him she was worried about her cheque book and did not want Ms Dibb to get her hands on it, and that she was locking the cheque book in her filing cabinet. In light of my general findings on credibility (set out below) and the evidence about cheques summarised above, I accept the plaintiff's evidence on this point.

20 Ms Graham gave evidence that in the period from December 2001 to early 2002 Ms Payten had a number of conversations with her regarding Ms Dibb's use of Ms Payten's cheque books. She recalled, in particular, a conversation between them at David Jones department store in December 2001 or early in 2002, as follows:

Ms Payten: "Edith, you won't believe what I'm going to tell you now, Vera's had one of my cheques, I have been to the bank and they have told me that a cheque for thirty thousand dollars has been cashed from my account. It was drawn to Vera, I didn't draw that cheque."
Ms Graham: "Well, is she going to pay it back?"
Ms Payten: "She will pay it back over time."
Ms Graham: "Why didn't you involve the police?"
Ms Payten: "I've let her know she could go to prison over all this, but believe it or not I am very fond of her."

21 Ms Graham's evidence is consistent with the evidence about cheques summarised above. I accept Ms Graham's evidence.

22 According to the plaintiff's evidence, which I accept, in March 2003 Ms Payten authorised him to sign cheques on her behalf. He said she told him, "I do not want Vera to have access to my cheque book or know my financial position". He went to her bank at Bay Village and obtained the appropriate authority form. She signed the form and he returned it to the Bank.

23 Ms Dibb denied that there were any difficulties between her and Ms Payten respect of finances. In my view, the true position was as described by Ms Graham.

The plaintiff's retrieval of the March 2002 Will

24 Ms Payten spent about two weeks in Gosford Hospital, where she was treated for secondary lung cancer, and was discharged on 9 April 2003.

25 The plaintiff gave evidence that, when Ms Payten was in Gosford Hospital (that is, I infer, late in March or early in April 2003), she asked him to retrieve her will from the Bank. He had to sign a release form and retrieved an envelope from safe custody at the Commonwealth Bank Gosford, and delivered to her at the Hospital. He said she told him that the envelope contained the will dated 7 March 2002. According to the plaintiff, Ms Payten said to him:

"I want to rewrite my Will, will you pick up a will kit from the newsagent for me?"

26 The plaintiff's evidence is that he took home with him from Gosford Hospital some paperwork regarding the payment of Ms Payten's accounts, but he denied taking the March 2002 Will home with him. He said that the document he collected from the Commonwealth Bank had been handed to him in a sealed custody envelope, and that he delivered the envelope unopened to his sister in hospital. He said that he did not see his sister's will prior to her death.

27 Later in March 2003, according to the plaintiff, he went to a newsagent at Ms Payten's request, to obtain a will kit, but was unable to do so. By the time he next visited Ms Payten she had returned to her Shelly Beach home, and (according to the plaintiff's evidence) she told him she would get a will kit herself.

28 Ms Dibb said in cross-examination that Ms Payten told her that her brother Warren had collected her will from the Commonwealth Bank, and that he was taking care of it. She said she accompanied Ms Payten to Warren's house to retrieve the will. The evidence about that subject is considered below. In view of my conclusions about the credibility of witnesses, set out below, I have decided to prefer the plaintiff's evidence to the evidence given on behalf of the defendant on these matters. Therefore I accept the plaintiff's evidence as to his collection of the custody envelope and delivery of it to Ms Payten in hospital. I also accept his evidence about their conversations concerning a will kit.

Ms Payten's telephone call to Perpetual

29 Affidavit evidence was given by two witnesses who were, at the relevant time, officers of Perpetual. The evidence was to the effect that one of them, Kevin Kegg, who had dealt with Ms Payten as a beneficiary of her father's estate, received a telephone call from her, in which she told him she wanted to discuss changing her will. He told her he did not handle wills and would transfer her to someone in the legal services department. He then transferred the call to George McLean, without being told what changes she wanted to make.

30 Mr McLean gave evidence that he received the transferred call and Ms Payten said to him:

"I am thinking about changing my Will. I am not well at the moment. Can I make an appointment to come and see you to discuss it when I am better?"
Mr McLean said he replied:
"That is fine. I will wait to hear from you."

31 His evidence was that he did not hear from her again. She did not give him any particulars or instructions about what she had in mind, and he did not recall keeping any notes of the conversation.

32 In his affidavit, Mr McLean said the conversation was in early 2003 but he did not recall the exact date. Mr Kegg said the conversation occurred about two or three weeks before Ms Payten's death on 26 May 2003, but he did not recall the exact date. However, at the hearing evidence was adduced showing that Mr McLean wrote a letter to Ms Payten dated 10 April 2003, referring to a telephone conversation on 9 April 2003, and saying matters had been left on the basis that she would telephone to make an appointment to see him when she had recovered sufficiently from an operation, and that when they met it would be necessary for him to take full particulars of her assets and family as well as her wishes in relation to the will.

33 This evidence satisfies me that the conversation Ms Payten had with Mr Kegg, transferred to Mr McLean, occurred on 9 April 2003. I infer that on 9 April 2003 Ms Payten was contemplating making a new will but had not done so.

34 Ms Dibb gave evidence that she was present at Ms Payten's home when Ms Payten rang Perpetual and spoke to Mr Kegg and, she said, another person. She dated the conversation at about 12 May 2003. I infer from the evidence of Mr Kegg and Mr McLean that there was only one conversation, and as I have said, the written evidence dates that conversation at 9 April. Ms Dibb claimed that she heard Ms Payten talk about her will, and that she heard her ask, "Is there any threat to my Will from Warren, my brother?" Ms Dibb said she did not hear the answer. However, neither Mr Kegg nor Mr McLean gave any evidence that the validity of the March 2002 Will was discussed, and in view of my approach to the credibility of Ms Dibb's evidence as a whole, I find on the balance of probabilities that Ms Payten did not discuss that matter during her telephone call to Perpetual.

The evidence of Ms Payten's nephew and nieces

35 Warwick Payten gave evidence of his last visit to Ms Payten at her Shelly Beach home, during which he returned to her some photographs. He said that she told him that she had "redone" her will. He was pressed in cross-examination to be specific about the time of the visit, but was unable to recall. According to his oral evidence, the visit might have been at any time from late 2002 until about April 2003.

36 Warwick Payten also gave evidence of receiving a later telephone call from Ms Payten in which she inquired about the photographs, evidently forgetting that he had already returned them to her. He said she again raised the topic of a new will, saying:

"You and the family will be very happy with the terms of my new will. There will be significant moneys and some houses coming to the family. I have left some money for Edith as well because she has been a good friend for me."

37 Once again, he was unable to be specific about the time of a telephone call, when pressed in cross-examination. In his affidavit he had said that it was at some stage between Ms Payten's two hospitalisations, but in cross-examination he was not sure which two hospitalisations they might have been.

38 Karen Payten gave affidavit evidence that, approximately a month before Ms Payten's death, she had a telephone conversation with Ms Payten, who was in hospital. She said Ms Payten told her, "I will be looking after you and the girls. Kirribilli will stay in the family."

39 Joanne Payten gave evidence of a conversation she had with Ms Payten after she came out of hospital in April, about a month before she died. Ms Payten, who sounded weak on the phone, told her she was just home from hospital, and spoke about plans to buy a block of land to build another house. Ms Payten told Joanne that she had made a new will. When challenged in conversation, she was sure that her aunt had said "I've written a new will" and not "I'm writing a new will". She said her aunt told her that Vera would be given Shelly Beach, and that someone else whose name Joanne could not fully hear (a woman whose name began with the letter "E") would be given the Port Douglas property. According to Joanne Payten's affidavit, Ms Payten continued, "Kirribilli is to stay in the family, Warwick will be pleased about that, you girls will receive a little bit of money". In cross-examination, she explained that she assumed from what was said that the Kirribilli unit was to go to her brother, as her aunt would sometimes speak elliptically.

40 For reasons explained below, in my discussion of the credibility of witnesses, I accept the evidence of Warwick, Karen and Joanne Payten.

Ms Payten's visit to Ms Graham

41 Edith Graham gave affidavit evidence that in April 2003, Ms Payten contacted her and arranged to visit her. She said Ms Payten came to see her, by herself, in a taxi. According to Ms Graham's affidavit, Ms Payten said to her, "I have made a new Will, you have not been forgotten, I am not leaving Vera so much". In cross-examination, Ms Graham added that Ms Payten had told her that she was leaving the Shelly Beach house to Ms Dibb, and that the reason she was not leaving so much to Ms Dibb was "because of the cheques". When pressed, she maintained firmly that Ms Payten had told her "I have made a new will", not "I'm making a new will" or "I'm going to make a new will".

42 Although she placed the visit in April in her affidavit, in cross-examination she said that the visit occurred a couple of days before she left Australia for a trip to England, and that her departure for England had occurred about five days before Ms Payten died. It seems to me her oral evidence should be preferred over her affidavit, in this respect. It is likely that her recollection of the time of her departure for England, in relation to the time of Ms Patten's death on 26 May 2003, would be reasonably accurate, and her recollection of the time of the visit by reference to her departure for England is more likely to be correct that her more abstract recollection of the month in which the visit occurred. My conclusion, therefore, is that the visit occurred in the third week of May 2003, around 19-21 May.

43 Ms Dibb gave evidence that after she was discharged from hospital on 9 April, Ms Payten needed a nurse to assist her and she used a wheelchair to get around. But she also gave evidence that she and Ms Payten visited the plaintiff in a hire car on about 17 April (as discussed below). Her evidence, if believed, would therefore not establish that Ms Payten was physically incapable of visiting Ms Graham in a taxi in the third week of May. Ms Dibb said she made arrangements for a daily diary to be kept by Ms Payten's carers and herself, recording daily activities. She said she was not aware of Ms Payten visiting Ms Graham. But it appears that she was not in a position to deny categorically that the visit occurred.

44 The plaintiff gave evidence in cross-examination that on the occasions when he saw her after discharge from hospital, Ms Payten looked fatigued, but she did not behave like someone who was not well. He said that when he saw her away from her home, she had someone with her, and he confirmed that she was having constant nursing care at home. On the whole, this evidence is consistent with the notion that Ms Payten was well enough to travel alone by taxi to visit Ms Graham.

45 Weighing up the evidence as a whole, I accept Ms Graham's evidence that the visit occurred. Having regard to my assessment of the credibility of witnesses, set out below, I accept Ms Graham's evidence as to the content of her conversation with Ms Payten during the visit.

The visit of Ms Payten and Ms Dibb to the plaintiff's home

46 On about 17 April 2003, Ms Payten and Ms Dibb visited the plaintiff's home. Ms Dibb said that the visit was on 15 May, but I prefer the evidence of the plaintiff and his wife, June, who identified 17 April as the day of the visit, on the general grounds of credibility discussed below. There is a dispute as to the purpose of the visit and what occurred.

47 The plaintiff and his wife gave evidence that the reason for the visit was for Ms Payten to show his wife and him the rings that she intended to give their daughters. The plaintiff denied that he gave his sister any envelope or document on that day, and his wife said she did not recall her husband giving his sister any document or envelope.

48 According to Ms Dibb, Ms Payten arranged for a hire car to take them both to the plaintiff's house to collect Ms Payten's will, which the plaintiff had held for safekeeping while she was in hospital. She said she was present in the lounge room of the plaintiff's house with Ms Payten and June Payten, when the plaintiff gave Ms Payten an envelope which had the words "Last Will and Testament" on it. She said Ms Payten took three rings out the package and showed them to the plaintiff and his wife, saying which of them would go to each of their daughters. She said she heard Ms Payten say that Warwick was to have $100,000 from the estate, and that "the rest of the estate will go to my good and loyal friend Vera". She said that she returned to the Shelly Beach home with Ms Payten and when they arrived, Ms Payten put the envelope on the dresser in her bedroom.

49 Ms Dibb and Ms Payten had a three-day holiday together in Nelson's Bay, ending on about 21 April 2003. In her affidavit and in a typed note received in evidence as Exhibit P3, she fixed the date as 21 May, but she gave the date 21 April several times in cross-examination. On balance, I accept her evidence that the date was 21 April rather than her evidence that it was 21 May. She gave affidavit evidence that, while they were driving back from Nelson's Bay, Ms Payten told her:

"I have left you my entire estate except for three rings that I have left my three nieces and for my nephew Warwick $100,000. I am glad that Warren cannot touch the Will."

50 Ms Dibb gave affidavit evidence that on the night of their visit to the plaintiff's house, Ms Payten put the envelope in the filing cabinet in the spare room. But in cross-examination she said that the envelope remained on the dresser until after she and Ms Payten returned from the short holiday in Nelson's Bay. She said that on the night of their return, Ms Payten asked her to bring the will to her in the second bedroom, which contained the filing cabinet. She did so, and Ms Payten put it away in the second drawer of the filing cabinet, which she then locked.

51 Having regard to my view about the credibility of witnesses, discussed below, I find it more likely than not that Ms Payten brought the March 2002 Will home with her to Shelly Beach from hospital on 9 April, and that the purpose of the visit to the plaintiff's home was, as he said, for Ms Payten to explain her intentions about the rings. The March 2002 Will was found at the Shelly Beach house after Ms Payten died. It is unnecessary for me to find whether it was on top of the dresser for a time, whether it was placed in the filing cabinet and locked, or whether it was placed in a chest of drawers (where it was found, according to the plaintiff's case). My view about the credibility of witnesses also leads me to reject Ms Dibb’s evidence, not corroborated, of her conversation with Ms Payten while driving home from Nelson’s Bay.

Events after Ms Payten's death

52 Ms Payten returned to Gosford Hospital on about 21-23 May 2003. She died in hospital on 26 May 2003. At 5:30 a.m. on that day the plaintiff received a telephone call from the hospital informing him of Ms Payten's death. At about 8 a.m. he telephoned Ms Dibb and a friend of Ms Payten, Enid Lowndes, to inform them of the death.

53 After being informed of Ms Payten's death, Ms Dibb went to the Shelly Beach house. She said in cross-examination she went there alone (her son Adam said he did not go to the house on that day), in order to collect her personal belongings. She said she removed her clothing from the premises. She denied that she had searched for a will. She said the phone rang while she was there, and she answered it, and the caller was a lady called Enid. Her presence at the house on 26 May is supported by other evidence.

54 Counsel for the plaintiff submitted that Ms Dibb was the person with the greatest interest in a new will not being found, and said that in view of the fact that Ms Dibb went to the Shelly Beach home shortly after she learned of Ms Payten's death and had the opportunity to search it and find any new will document, I should conclude that if the new will was destroyed, it was not destroyed by Ms Payten. I am not prepared to make such a finding, on the evidence before me. There is evidence (considered below) that in a telephone conversation some days after Ms Payten's death, Ms Dibb said she had seen a will leaving her the Shelly Beach house and leaving Ms Graham a large sum of money. It is unlikely that she would have made such a statement if she had already found and destroyed that will.

55 During the same morning the plaintiff was informed that Ms Dibb and some of her children were at the Shelly Beach home. He went there and found the house empty. Later he went to Ms Dibb's home and demanded that she give him her key to the Shelly Beach home, and she did so.

56 On the same day he telephoned Perpetual and spoke to Izabela Bianca Levay, a client relations manager, and told her that Ms Payten had died and that, at that stage, he did not know who were her executors or even if she left a will.

57 On 27 May 2003 the plaintiff arranged for a locksmith to change the locks to the Shelly Beach home. On the same day or one or two days later, the plaintiff and his wife, June Payten, together with a family friend called Jack Braithwaite, attended the Shelly Beach home to search for a will. The plaintiff gave evidence (which I accept) that they found jewellery secreted at various places around the home, and that Mr Braithwaite found the March 2002 Will in a chest of drawers in the spare bedroom. The plaintiff said (and I accept) Ms Payten had told him at some time, "I need to hide my jewellery because of Vera".

58 On 30 May 2003 Ms Levay telephoned the plaintiff and he told her that he had found a handwritten will appointing Perpetual as executor and Elvira Dibb as sole beneficiary. They discussed funeral arrangements and keys for the Shelly Beach property. The plaintiff told her that he was contemplating making a claim on the estate since he had not been mentioned in the March 2002 Will as a beneficiary.

59 Later she met him at the Shelly Beach property and he handed her the March 2002 Will, some documents of Ms Payten, the keys and three rings. He repeated that he would probably be making a claim on the estate, and said that he wanted the Kirribilli property. After the plaintiff left the Shelly Beach property, Ms Levay met Ms Dibb at the same place and had a discussion with her. According to Ms Levay's evidence, Ms Dibb told her that Ms Payten had been in touch with Mr McLean of Perpetual to make an appointment regarding a new will, but she died before any appointment was scheduled.

60 In cross-examination, and in a typed note admitted into evidence as Exhibit P4, Ms Dibb disagreed with Ms Levay's evidence. She said in cross-examination that Ms Payten had telephoned Mr Kegg to find out whether her will was "okay" (T 114). She said Mr Kegg put her on to another solicitor and she spoke to the other solicitor, and after completing her phone call, she said to Ms Dibb that the will was fine and there was nothing wrong with it. I infer that Ms Dibb's evidence refers to the telephone call made by Ms Payten 19 April 2003, described above. Ms Dibb continued, saying that Ms Payten's told her:

"Because I made this informal will, I'd like to go and make one that's formal with a solicitor and to make sure that everything's fine with it, and things like that, the way it's going to stay and nothing's going to interfere with it."

61 I do not accept Ms Dibb's evidence on this subject, having regard to my findings about the telephone conversation on 9 April and my general view of her credibility. I accept the evidence of Ms Levay.

62 On 16 June 2003 the plaintiff telephoned Ms Levay and told her he had just heard that there might be a later will, and she told him that she would need more information. On 16 August 2004 Perpetual wrote to the solicitor who had acted for Ms Payten on the purchase of the Shelly Beach property, and the solicitor replied on 17 August 2004, saying he did not act for Ms Payten in respect of any will or other property transaction.

Ms Dibb's two telephone calls to Ms Graham

63 Evidence was given on behalf of both parties of two telephone calls made by Ms Dibb to Ms Graham in England, shortly after 26 May. The contents of one of the conversations are not controversial, but there is disagreement as to the contents of the other conversation. It does not matter which conversation came first or precisely when they occurred. Ms Graham said in her affidavit that the controversial conversation occurred early in June, but in cross-examination she appears to have accepted that it was earlier, possibly as early as 27 May.

64 According to the evidence of Ms Dibb, her son Adam and her daughter Cara, Ms Dibb's telephoned Ms Graham on 27 May to tell her that Ms Payten had died. According to their evidence, nothing else of relevance was said on that occasion, and specifically, there was no discussion about a will. There was a second telephone conversation, which Ms Dibb and her two children say occurred on the following day.

65 Ms Dibb's evidence was that she made a second telephone call on 28 May 2003 between 6 and 7 p.m., from her home. Her children Adam, Cara and Rosena were present. She said the conversation was as follows:

Ms Dibb: "Edith. I'm sorry to have to ring you again but Warren says he can't find Janice's Will. I know he's got it because he is the only one who had a key to the filing cabinet where I saw her lock it up. What I have rung about is do you know the solicitors where she had her Will done?"
Ms Graham: "No. I believe she had one of those Will kits. She bought it from either the paper shop or the post office, I don't know which one."
Ms Dibb: "Would you know who witnessed it for her?"
Ms Graham: "You can try the JPs at Bay Village."
Ms Dibb: "Thank you. I will go and try them. I'll get back to you."

66 Ms Dibb, and her son Adam, agreed in cross-examination that during her conversation she said to Ms Graham "I've seen the envelope" or "I've seen it", but Ms Dibb insisted she had not seen the actual will. She denied that she was referring to any will other than the March 2002 Will. She denied saying that she had been left the house in Shelly Beach or that Ms Graham had a large sum of money coming to her.

67 Adam Dibb gave evidence about both telephone conversations. His account of the second conversation was very close to his mother's account of it. He said he did not hear Ms Graham's responses to what his mother said on either occasion. Cara Murray (Ms Dibb's daughter) gave evidence that she was present during both telephone conversations. Her evidence of what she heard her mother say is very similar to her brother's evidence. Like her brother, she did not hear Ms Graham's responses. Both Adam and Cara denied that their mother had mentioned the Shelly Beach property or that Ms Graham was entitled to money under Ms Payten's will.

68 Ms Graham did not deny Ms Dibb's account of the content of the conversation (although she said it occurred during the first telephone call), but she insisted that more was said. She gave evidence that the following was said:

Ms Dibb: "Do you know where Janice's will is?"
Ms Graham: "No".
Ms Dibb: "I have seen the Will."
Ms Graham: "Well, what was in it then?"
Ms Dibb: "I have been left the house at Shelly Beach and she hasn't forgotten you either. She's left you a large sum of money."
Ms Graham: "I didn't expect much. How much has she left me?"
Ms Dibb: "Well, I can't tell you that."

69 Perpetual objected to Ms Graham's evidence of what she was told by Ms Dibb, but I found that this was evidence that might (if admissible) be adduced by the plaintiff under s 48(4)(b) of Evidence Act 1995 (NSW), as evidence of the contents of a document not available to the plaintiff; and although Ms Graham's evidence of what she was told by Ms Dibb was firsthand hearsay, it was admissible under s 64(3) since Ms Dibb had been called to give evidence and her recollection of the contents of the will would have been fresh in her memory when her representation to Ms Graham was made.

70 The correct version of what I shall call, for convenience, "the second telephone conversation" (without making a finding as to the temporal sequence) is a matter of importance. I have decided to accept Ms Graham's evidence and therefore to reject the evidence given by Ms Dibb and her two children, for the reasons set out in my discussion (below) of the credibility of their evidence.

71 Ms Dibb gave evidence that she had never seen any will of Ms Payten, and the only document she had ever seen that she understood was Ms Payten's will was the envelope marked "Last Will and Testament" which (she said) she saw Ms Payten receive from her brother Warren and put in her filing cabinet. That is inconsistent with my finding that she told Ms Graham she had seen the Will, and therefore I reject Ms Dibb's evidence.

72 Ms Dibb said in cross-examination that she went to Bateau Bay Village after her conversation with Ms Graham and spoke to three elderly Justices of the Peace there. They told her that they would not be able to recall whether any particular person had come to them for the witnessing a will. Although this evidence is not corroborated, it is plausible and was not challenged, I accept it. It was an agreed fact at the hearing that the deponent of the affidavit of attesting witness for the purposes of the application for probate of the March 2002 Will did not witness a later will by Ms Payten.

Credibility of witnesses

73 I was favourably impressed by the plaintiff and his wife as witnesses, and I accept their evidence as their truthful recollection of the events.

74 I have no reason to doubt the credibility of the evidence of their children, Karen (who was not cross-examined), Joanne and Warwick. Joanne gave her evidence in a straightforward way and it was not put her in cross-examination that her evidence was other than her truthful recollection of the events. Warwick also struck me as an open, straightforward witness. He was pressed to be specific about the timing of his visit and his telephone conversation with Ms Payten but his statement that she had told him she had "redone" her will was not directly challenged. I accept their evidence.

75 Some of the evidence of Ms Graham was challenged in cross-examination. She had some difficulty recollecting the dates on which events occurred; in particular, she accepted in cross-examination that she was wrong to have located Ms Payten's visit in April 2003 rather than about a week before Ms Payten's death on 26 May, and that her first phone call from Ms Dibb was on 27 May rather than early in June. She insisted in cross-examination that Ms Payten had told her, during the visit, that she was leaving the Shelly Beach house to Ms Dibb and was not leaving her so much because of the cheques, although she had not mentioned these matters in her affidavit. Nevertheless, assessing her evidence as a whole my view is that she presented as a witness who was attempting to give a truthful account of the matter and on occasions she frankly accepted that she had been wrong or incomplete in her affidavit. I have reached the conclusion that I should accept the evidence she gave in the witness box.

76 There is no challenge to the credibility of the evidence given on behalf of the defendant by its present and former officers, but the plaintiff challenges the evidence given by Ms Dibb and her two children.

77 Ms Dibb gave inconsistent answers in cross-examination, when questions were put to her about her financial relationship with Ms Patten and about cheques made out in her favour by Ms Payten. I have summarised this evidence above. In my opinion her evidence on those subjects, when consistent, was evasive and sometimes implausible. In particular, her evidence that she and Ms Payten stopped payment on the $5,000 cheque because it was for the wrong amount was implausible in light of the Bank's letter. Assessing her evidence as a whole, I have decided that it would be unsafe to accept Ms Dibb's evidence where it was challenged and not externally corroborated. I do not regard corroboration by her children as external corroboration for this purpose.

78 I turn to the evidence given by Ms Dibb's children, Adam and Cara. There were some inconsistencies amongst the three witnesses, mostly on matters of a peripheral kind, but also on some important matters - whether the second and important telephone call was taken by Ms Dibb in her bedroom or in the kitchen, and whether Rosena typed Adam's statement. The fact that the three affidavit accounts of the second conversation are almost word-for-word identical is itself a basis for concern about the reliability of the evidence. At the time of the second telephone call, Cara was caring for her very young baby (either in the bedroom or the lounge room, and possibly breast-feeding the baby, depending upon which version is accepted). Adam was watching a movie on television ("The Matrix", he thinks). They gave evidence of what they heard their mother say while they were doing these other things. There is no dispute that she said things along the lines of their common version. The question is whether she said the additional things to which Ms Graham deposed, about seeing a will in which she was left the Shelly Beach house and there would be money for Edith. In my view, in all the circumstances, their denials that any such things were said are unreliable.

79 I was invited by counsel for the plaintiff to draw an adverse inference from the fact that Rosena, who was said to be present during the telephone conversations, has not been called as a witness. Where there are three witnesses giving evidence on behalf of the defendant about what they heard at the time, I would not regard it as appropriate to draw an adverse inference from the simple fact that the fourth person present has not been called to give evidence. I have decided to reject the defendant's evidence of the second telephone conversation for the reasons set out above, without relying on the plaintiff's submission on this point.

The law

80 According to s 7 of the Wills, Probate and Administration Act 1898 (NSW), a will is not valid unless it is in writing, signed by the testator, and witnessed in accordance with that section. Section 17 prescribes formalities for the revocation of a will. A will may be revoked (apart from a marriage or termination of marriage):

· by another will, made in compliance with s 7 (s 17(2));

· by some writing declaring an intention to revoke the will, executed in the manner in which a will is required to be executed by s 7 (s 17(3)(a));

· by burning, tearing or destruction in accordance with s 17(3)(b); or

· by some writing on the will, or by any dealing with the will, by the testator or someone in the presence of the testator and by the testator's direction, if the Court is satisfied from the state of the will is that the writing was made or the dealing was done with the intention of revoking the will (s 17(3)(c)).

81 The formalities associated with making or revoking of a will have been mollified by s 18A, subsection (1) of which provides:

"A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in accordance with the formal requirements of this Act, constitutes a will of the deceased person, an amendment of such a will or the revocation of such a will if the Court is satisfied that the deceased person intended the document to constitute the person's will, an amendment of the person's will or the revocation of the person's will."

82 Thus, a will may be revoked, under s 18A, by any document intended by the deceased to constitute the revocation of his or her will.

83 Great cases such as Sugden v Lord St Leonards (1876) 1 LR 1 PD 154 have established a doctrine, under the Wills legislation prior to the introduction of s 18A, by which the Court will recognise a lost will and admit it to probate. In Curley v Duff (1985) 2 NSWLR 716, Young J (as the Chief Judge in Equity then was) summarised the ingredients that must be present as follows (at 718-9):

"As I understand it, five matters must be established when it is sought to have probate of a lost will. First, it must be established that there actually was a will (see Re Molloy [1969] 1 NSWR 400), secondly, it must be shown that that will revoked all previous wills, thirdly, that the presumption that when a will is not produced it has been destroyed must be overcome (see Allan v Morrison [1900] AC 604), fourthly, there must be evidence of its terms, and fifthly, evidence of due execution (see Gair v Bowers (1909) 9 CLR 510)."

84 His Honour was speaking before the enactment of s 18A, at a time when the formalities prescribed for the making and revocation of wills were not subject to any such exception. The application of the doctrine of lost wills in a statutory environment which recognises the informal written expression of testamentary intentions requires modification of Young J's five requirements. Campbell J made the adjustment in Cahill v Rhodes [2002] NSWSC 561 (10 July 2002). He said (at [55]) that the five modified ingredients are as follows (I have highlighted the modifications):

"First, it must be established that there actually was a will, or a document purporting to embody the testamentary intentions of a deceased person ; second, it must be shown that that document revoked all previous wills; third, the presumption that when a will is not produced it has been destroyed must be overcome; fourth, there must be evidence of its terms; and fifth, there must be either evidence of due execution or that the deceased person intended the document to constitute his or her will ."

85 In the case before Campbell J, a soldier had made a formal will in favour of Ms Rhodes as sole beneficiary, at a time when he was intending to marry her. They lived together for a while, and then separated. There was clear evidence that he told various people, including independent persons such as his army superior and army friend, that he had made a new will naming his sister as executrix and his mother as sole beneficiary, but this will was not found.

86 Campbell J was satisfied on the evidence that the first two ingredients of the modified lost wills doctrine were present, given the strength of the evidence that a new will had been made and the evidence of its terms, which were inconsistent with the terms of the previous will. Nevertheless, his Honour denied the mother's application for probate of the lost will, on the ground that the third ingredient was not present. He found that the presumption of revocation was reinforced by the evidence, rather than rebutted, because there was evidence that the deceased was having some doubts about the appropriateness of the new will after he had made it, and did not regard his separation from Ms Rhodes as final. Since his Honour found that a new will had been made revoking the prior will, and the new will was presumed to have been revoked, the result was that the deceased died intestate and letters of administration were granted to his mother.

87 I respectfully agree with Campbell J's formulation of the modified lost wills doctrine. The question is whether the five ingredients have been satisfied here.

88 To a substantial degree, the plaintiff in the present case relies on evidence of statements by the testator, Ms Payten. Under the older case law, statements made by a person after the alleged execution of the will by him or her were not admissible as evidence of such execution: for example, Gair v Bowers, 9 CLR at 521 per Griffith CJ, 526 per O'Connor J, and 530 per Higgins J, in each case citing Atkinson v Morris [1897] P 40. However, as Hodgson J pointed out in In the Estate of Ralston (Supreme Court of New South Wales, 2 September 1996, unreported; BC9604329), that has been affected by two statutory changes. The first is the enactment of s 18A(2) of the Act, which authorises the court to have regard to any evidence relating to the manner of execution or testamentary intentions of the deceased, including evidence of statements made by the deceased, in forming its view as to whether a document not executed in accordance with the formal requirements of the Act embodied the testamentary intentions of the deceased. The second is the hearsay provisions of Evidence Act, and especially ss 63 and 64. Hodgson J said (BC9604329 at 7):

"It is clear that those two provisions mean that generally the hearsay rule no longer makes declarations by a deceased person concerning execution of a will inadmissible to prove due execution."

89 According to the Evidence Act, s 140, in a civil proceeding such as the present one, the court must find the case of a party proved it is satisfied that the case has been proved on the balance of probabilities. The section requires the court to take into account the nature of the cause of action, the nature of the subject-matter of the proceeding, and the gravity of the matters alleged. Reference is often made to the proposition, derived from Briginshaw v Briginshaw (1938) 60 CLR 336, that when applying the civil standard of proof to a case that may involve questions of fraud, the court must have a "comfortable satisfaction" that the case has been established before finding for the plaintiff. But in Pedler v Richardson (Supreme Court of New South Wales, 16 October 1997, unreported; BC9705263), a lost will case, Young J observed (BC 9705263 at 10-11), that "caution must always be had against picking up glosses and tags and one must look to see what the actual principle in Briginshaw and later cases is". He concluded that the most that could be said was that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion, while ultimately it remains incumbent on the judge determine the issue by reference to the balance of probabilities.

90 In the Ralston case, Hodgson J (BC9604329 at 8-9) agreed with an earlier formulation of the standard of proof in a lost will case, namely that there should be "clear and convincing proof similar to that appropriate to other classes of case where the court is asked to give effect to parol arrangements in circumstances where the law requires, or the parties have chosen, that a particular matter be recorded in some formal way (see, for example, Pukallus v Cameron 56 ALJR 907 at 911; Blackney v Savage and Sons [1973] VR 385 at 389; Maks v Maks 6 NSWLR 34 at 36; Whittet v State Bank of NSW 24 NSWLR 146 at 151-4), or where the Court is asked to make a finding concerning a legal transaction by a deceased person (see, for example, Birmingham v Renfew 57 CLR 666 at 674, 681-2)".

91 Hodgson J continued:

"However, this does not mean that what is required is other than proof on the balance of probabilities: cf Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-1. In a case such as this, I believe that what is required is that the party bearing the onus of proof must be sufficiently diligent in calling available evidence, because the Court will not be prepared to act on material which it considers inadequate …".

92 This passage was followed and applied by Campbell J in Cahill v Rhodes. A similar approach was taken by Parker J in Dalton v Dalton (Supreme Court of Western Australia, 24 December 1997, unreported; BC9704735), his Honour concluding by saying (BC9704735 at 4) that in applying the balance of probabilities standard, "the court must be vigilant, being fully cognisant of the dangers of error and fraud, and the gravity of the consequences flowing from any finding made".

93 In the present case, while it is necessary for the court to take into account, inter alia, the gravity of the conclusion that the only will found after Ms Payten's death has been defeated on the basis of oral evidence by the plaintiff’s children and one of the deceased’s carers of her statements about the existence and some of the contents of the will, in the last analysis the case is to be assessed by the application of the civil standard of balance of probabilities.

(1) The existence of a will or s 18A document

94 The strongest evidence for the existence of a new will is Ms Dibb's statement in her telephone conversation with Ms Graham on about 28 May 2003, against her interest, that she had seen "the will", some of the contents of which she then described. The description of the contents is inconsistent with the contents of the March 2002 Will. What she had seen, therefore, was another will.

95 That evidence is reinforced by

· Ms Payten's statement during her visit to Ms Graham on about 19-21 May that she had made a new will, that Ms Graham had not been forgotten, that she was not leaving Vera so much because of the cheques, and that she was leaving the Shelly Beach house to Vera;

· Ms Payten's statement to Warwick during his visit, at some time from late 2002 until about April 2003, that she had "redone" her will, and her later statement to him on the telephone that he and his family would be very happy with the terms of her new will, and the general description of its contents;

· Ms Payten's statement on the telephone to Joanne about a month before she died, that she had made a new will under which Vera would be given Shelly Beach, another named person would be given the Port Douglas property, Kirribilli would stay in the family and the girls would receive a little bit of money; and

· Ms Payten's more general statement to Karen, about a month before she died, that (without specifically mentioning a new will) she would be looking after the girls and Kirribilli would stay in the family.

96 The evidence in favour of the existence of a new will is not as strong in this case as it was in Cahill v Rhodes, because the witnesses here are not as disinterested as they were in that case. Nevertheless, it firmly points to the conclusion that Ms Payten made a new will after the March 2002 Will.

97 I am satisfied on the balance of probabilities that Ms Payten's new will has been lost. The plaintiff and Mr Braithwaite searched the Shelly Beach house which was Ms Payten's residence at the time of her death and found only the March 2002 Will. An inquiry was made before the hearing with the solicitor who had acted for Ms Payten on the purchase of the Shelly Beach property, and he was unable to assist. The attesting witness to the March 2002 Will who swore an affidavit in support of the application for probate of that will did not witness a later will by Ms Payten. It is true that there is no evidence of inquiries with solicitors in the Bateau Bay area, but on the other hand there is no evidence that Ms Payten was a client of any solicitors in that area. On balance, the inquiries that have been made are sufficient to establish that the will has been lost.

(2) Revocation of the March 2002 Will

98 In contrast with Cahill v Rhodes, here there is only skimpy evidence about the contents of the new will. It may be summarised as follows:

· the Shelly Beach house was given to Ms Dibb (evidence of Ms Graham, in her account of her telephone conversation with Ms Dibb and her account of Ms Payten's visit to her; and evidence of Joanne Payten (in her account of her telephone conversation with Ms Payten));

· Ms Dibb was not given "so much" because of the cheques (evidence of Ms Graham concerning Ms Payten's visit to her);

· the Kirribilli unit stayed in the family (evidence of Joanne Payten), or "some houses" came to the family (evidence of Warwick Payten);

· Ms Graham was not forgotten and was left a large sum of money (Ms Graham's evidence of her telephone conversation with Ms Dibb) or "some money" (evidence of Warwick Payten);

· the "girls" (the plaintiff's three daughters, I infer) were given "a little bit of money" (evidence of Joanne Payten) or "significant moneys" were given to the family (evidence of Warwick Payten);

· an unidentified person received the Port Douglas property (evidence of Joanne Payten);

· perhaps, the three rings were given, respectively, to Joanne, Karen and Lissa (evidence of the plaintiff and his wife concerning the visit by Ms Payten and Ms Dibb to their house on about 17 April).

99 These dispositions were made in a document described as a "new will" rather than an informal s 18A document. Under s 17 of the Act, a will may be revoked by a later will, and this may occur even if the later will has been lost, as Cahill v Rhodes shows. But the revocation of a will that has been duly executed is not established by the execution of a subsequent will that has not been found, unless the later will is clearly proved to have contained an express revocation of the earlier will, or dispositions inconsistent with those in the earlier will: Gair v Bowers (1909) 9 CLR 510, especially at 529-530 per Isaacs J, citing Nawab Sahib Mirza v Mussammat Umda Khaanam (1892) LR 19 Ind App 83, at 89 per Lord Macnaghten.

100 The mere fact that the later instrument is described as a "new will" is insufficient to establish inconsistency, just as it is insufficient to describe the later instrument as the "last will": Cutto v Gilbert (1854) 9 Moo PC 131; 14 ER 247; Kitkat v King [1930] P 266; In the Goods of Petchell (1874) LR 3 P & D 153; In the Will of Cullen (1907) 7 SR (NSW) 29. The approach of the older cases was that there would be no inconsistency unless the two sets of dispositions were incapable of standing together, and where they were, the later dispositions revoked the former only to the extent of the inconsistency: Re Day (1907) 7 SR (NSW) 484; In the Will of Cullen, supra; Re Buckley [1952] VLR 17; Chichester v Quatrefages [1895] P 186; Re Hawksley [1934] Ch 384. But the more modern approach seems to be that the issue is one of construing the testator's intention, so that a later instrument may be held completely to supersede an earlier, although the two are not entirely inconsistent, if the court can discern that this was the testator's intention (s 18A; In the Will of Page [1969] 1 NSWR 471; Aoun v Clark [2000] NSWSC 274), and oral and extrinsic evidence is admissible for this purpose (In the Estate of Brian [1974] 2 NSWLR 231; Re Fairhurst [1976] 1 NZLR 51; see K Mason and LG Handler, Wills, Probate and Administration Service, New South Wales (looseleaf, Butterworths) at [1065.6]).

101 Although the evidence of the dispositions in the new will is incomplete, my view is that those incomplete dispositions are inconsistent with the dispositions in the March 2002 Will. Strictly it is consistent with the proposition that Ms Dibb was to receive the residuary estate including the Shelly Beach house, to say that she was to receive the Shelly Beach house. But when the evidence of the testamentary intention is that she was to receive the Shelly Beach house and not to receive "so much" as was provided in the earlier will, it can be seen that the two dispositions are inconsistent. Although the evidence about the Kirribilli unit staying in the family is not specific enough to prove the contents of a disposition of the Kirribilli unit, it is enough, in my view, to establish inconsistency, pro tanto, with the residuary clause in the March 2002 Will. And the evidence of the circumstances in which Ms Payten made statements about her new will indicates, to my mind, a testamentary intention inconsistent with the maintenance of any of the dispositions in the March 2002 Will. The evidence as a whole establishes general inconsistency and not merely a partial inconsistency which would lead to the preservation of some of the earlier dispositions.

102 For these reasons, my conclusion is that the second ingredient is satisfied.

103 My conclusion that the first two ingredients have been satisfied entails the consequence that the March 2002 Will has been revoked by the new will, provided that the fifth ingredient is also satisfied. If the presumption of revocation of the new will applies, then there is an intestacy (as in Cahill v Rhodes), and the old will is not revived, having regard to s 19(1) of the Act. If the presumption of revocation has been rebutted, where not all of the terms of the new will are in evidence, a question arises as to whether part of the will can be recognised and admitted to probate, or there is an intestacy. Where the court is not satisfied as to the terms of the lost will but concludes that it effectively revoked an earlier will, the result is intestacy: Dalton v Dalton, BC9704735 at 12.

(3) Presumption of revocation

104 In Cahill v Rhodes, Campbell J (at [58]ff) referred to and adopted Powell J's exposition of the presumption of revocation, made in Whiteley v Clune (No 2); The Estate of Brett Whiteley (Supreme Court of New South Wales, 13 May 1993, unreported). I respectfully do likewise.

105 Campbell J also considered Sugden v Lord St Leonards and Finch v Finch (1867) LR 1 PD 371. He concluded (at [68]):

"What Sugden v Lord St Leonards and Finch v Finch show is that if the testator has made a will which makes a careful and complete disposition of his property, and an examination of the circumstances relevant to the deceased's testamentary intentions between the time of the making of that will and the time of his death does not reveal anything which shows that the testator had any reason to revoke the will by destroying it, the strength of the presumption is weakened to such an extent that it is overcome."

106 In the present case, I am not in a position to know whether Ms Payten, by her new will, made "a careful and complete disposition" of her property, because the evidence of the dispositions is incomplete. However, in my view there is reasonably strong evidence to rebut the presumption of revocation of the new will. The evidence indicates that Ms Payten decided to reduce Ms Dibb's share of the estate because of the cheques, that is, because of some experience that, I infer, included her experience with respect to the cheque that was returned unpaid by the Bank on 26 September 2002. The fact that she did not immediately act after that experience is partly explained by the evidence that she remained fond of Ms Dibb. It may also be explained because, in September 2002, she was not as ill as she subsequently became. It appears from the evidence that Ms Payten decided to do something about making a new will only when she came out of hospital on 9 April. It is plausible that her illness would have provoked her to do something about her testamentary intentions, which included giving Ms Dibb a lesser share of her estate.

107 There is nothing to indicate that she had any subsequent change of heart. Indeed, her conversation with Ms Graham during her visit occurred only about a week before she died. My conclusion is that the presumption of revocation of the new will has been rebutted in this case.

(4) Evidence of the terms of the new will

108 I have summarised the evidence of the terms of Ms Payten's new will under heading (2) Revocation of the March 2002 Will. Plainly the evidence falls well short of establishing the complete contents of the new will. Indeed, with one exception, all the terms, including the terms relating to the Kirribilli unit and gifts of money, are much too vague and uncertain to be the subject of any grant of probate or other recognition.

109 However, there is one term which seems to me, on the balance of probabilities, to have been established. This is the term that the Shelly Beach house was given by the new will to Ms Dibb. This term emerges from Ms Graham's evidence of what Ms Dibb said to her in their telephone conversation after Ms Payten died, when Ms Dibb told her that she had seen the will. It is also supported by Ms Dibb's oral account of her conversation with Ms Payten during Ms Payten's visit, not long before she died. And it is supported by the evidence of Joanne Payten, in her account of her telephone conversation with Ms Payten about a month before she died.

110 In Whiteley v Clune (No 2), Powell J reviewed the case law and summarised the status of the presumption of revocation in four propositions. His fourth proposition (BC9301902 at 27) was as follows:

"Where a will is lost or destroyed, and the presumption of destruction, animo revocandi , either does not arise, or is rebutted, its contents may be proved by parol evidence. The 'rules' laid down in Sugden v Lord St Leonards (supra) are as follows:
a. the contents of any lost instrument, including a will, may be proved by secondary evidence;
b. written and oral declarations of a testator made before, or after, the execution of the will are admissible as secondary evidence of its contents;
c. the evidence of a single witness, although interested, is admissible to prove the contents if his veracity and credibility are unimpeached;
d. probate may be granted of so much of the contents as may be proved, even though proof is not available of the entirety.
It should, however, be noted that, at least insofar as (b) and (d) are concerned, Sugden v Lord St Leonards (supra) although not overruled, has not escaped criticism ( Woodward v Goulstone (1886) LR in 11 App Cas 469; Atkinson v Morris [1897] P 40) so that it is improbable that the 'rules' will be extended."

111 This passage was quoted with approval by Campbell J in Cahill v Rhodes, although (as explained) it was not applied because the presumption of revocation had not been rebutted. Proposition (d) implies that in the present case, having regard to my findings, probate may be granted of Ms Payten's new will insofar as it makes a gift of the Shelly Beach house to Ms Dibb, even though proof of the full terms of the will is not available. Powell J's suggestion that proposition (d) will not be extended does not, in my view, prevent me from applying it here. The proposition was applied by Young J in Pedler v Richardson, BC 9705263 at 22, where his Honour said, after citing proposition (d):

"What is customary in such cases is for the applicant to produce in the short minutes of order the best reconstruction of the will that he can. If the Court is satisfied that that reconstruction is the will, it may grant probate. In the instant case, as Mr Hickey has clearly indicated that he will renounce probate, letters of administration cta will issue instead. In other cases, letters of administration cta may be granted annexing so much of the contents of the will as have been proved until a more authentic version comes to light."

(5) Evidence of due execution or intention that the new document constitutes the will

112 I have dealt with the standard of proof of due execution in a lost will case. In the present case there is no evidence by an attesting witness and no other specific evidence of execution at all, but only evidence of statements by Ms Payten that she had made a new will, and some evidence of its contents. However, the enactment of s 18A has fundamentally changed the nature of this ingredient of the lost will doctrine. It is now sufficient for the court to be satisfied, after considering all the admissible evidence, that a document was brought into existence embodying the testamentary intentions of the deceased, although not executed formally as a will.

113 My findings with respect to the other four ingredients imply the conclusion, which I now reach, that Ms Payten made a new will some time after 9 April which, whether or not it was formally executed, was a document purporting to embody her testamentary intentions, and was intended by her to constitute her will and to revoke the March 2002 Will.

Conclusions

114 It follows that, in my opinion, each of the five ingredients for the application of the lost will doctrine has been satisfied. At the end of the hearing I expressed some doubt as to whether this conclusion was available on the evidence, but having now reviewed all of the evidence in light of the decided cases, I am firmly persuaded that this is the correct conclusion to reach.

115 The appropriate course, as suggested by the observations of Young J in Pedler v Richardson, quoted above, is to revoke the grant of probate of the March 2002 Will and to grant letters of administration cta, annexing the best reconstruction of the partial terms of the will that can be made in light of my findings. It may be appropriate that such letters of administration be granted to Perpetual, in light of Ms Payten's dealings with it and its longstanding involvement in her financial affairs, but I shall receive any submissions that the parties may wish to put on that matter.

116 I shall direct the plaintiff to bring in draft short minutes of orders to reflect these reasons for judgment, and to prepare (as suggested by Young J) a reconstruction of Ms Payten's new will in light of my findings. I shall fix a time to hear submissions on the form of orders and also on the question of costs.

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