Proud v Proud
[2012] WASC 134
•26 APRIL 2012
PROUD -v- PROUD [2012] WASC 134
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 134 | |
| Case No: | CIV:2731/2011 | 26 MARCH, 11 APRIL 2012 | |
| Coram: | EM HEENAN J | 26/04/12 | |
| 30 | Judgment Part: | 1 of 1 | |
| Result: | Probate in solemn form of law of copy of lost will in form to be settled by a Probate Registrar limited until proof of the last will or a more authentic copy thereof Liberty to apply in relation to the form of the grant All parties' costs in the proceedings to be paid out of the estate | ||
| B | |||
| PDF Version |
| Parties: | STEPHEN JAY PROUD SIMON PROUD MICHAEL JAMES PROUD NEIL PROUD JANE PROUD RUBEN JAY NKULULEKO PROUD by his Guardian ad litem CONNIE MURRAY LEWIS CHARLES PROUD by his Guardian ad litem CONNIE MURRAY NATASHA SUZANNA PROUD by her Guardian ad litem CONNIE MURRAY JAKE CHRISTOPHER MICHAEL McARDLE by his Guardian ad litem CONNIE MURRAY CONNIE MURRAY (as representative for unborn grandchildren and great-grandchildren of Collin Jay Proud (dec)) |
Catchwords: | Probate Proof in solemn form of lost will Solicitor's copy of will available Testamentary capacity Presumption of destruction with intention to revoke rebutted Anterior will duly executed Anterior will providing for children's spouses, grandchildren and great-grandchildren Joinder of infant beneficiaries under earlier will Order for appointment of representative defendant for unborn grandchildren and great-grandchildren Doubt as to effect of limitations on vesting Nature and duration of grant |
Legislation: | Wills Act 1970 (WA) |
Case References: | Cahill v Rhodes [2002] NSWSC 561 Corbett v Newey [1996] 3 WLR 729 Curley v Duff (1985) 2 NSWLR 716 Deeks v Greenwood [2011] WASC 359 Harris v Knight (1890) 15 PD 170 In the Estate of C R Phibbs (Deceased) [1917] P 93 McCauley v McCauley (1910) 10 CLR 434 Orifici as Executor of the Estate of Rosario Giuseppe Orifici v Orifici [2007] WASC 74 Re Webb, Smith v Johnston [1964] 1 WLR 509; [1964] 2 All ER 9 Sawyer v McKenzie [2011] WASC 215 Scarpuzza v Scarpuzza [2011] WASC 65 Welch v Phillips (1836) 1 Moo PC 302; 12 ER 828 Woodward v Golstone (1886) LR 11 App Cas 469 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
5 Collier Street, Wembley, in the State of Western Australia, retired, deceased BETWEEN : STEPHEN JAY PROUD
- SIMON PROUD
Plaintiffs
AND
STEPHEN JAY PROUD
SIMON PROUD
MICHAEL JAMES PROUD
NEIL PROUD
JANE PROUD
First Defendants
RUBEN JAY NKULULEKO PROUD by his Guardian ad litem CONNIE MURRAY
LEWIS CHARLES PROUD by his Guardian ad litem CONNIE MURRAY
NATASHA SUZANNA PROUD by her Guardian
ad litem CONNIE MURRAY
JAKE CHRISTOPHER MICHAEL McARDLE by his Guardian ad litem CONNIE MURRAY
Second Defendants
- CONNIE MURRAY (as representative for unborn grandchildren and great-grandchildren of Collin Jay Proud (dec))
Third Defendant
Catchwords:
Probate - Proof in solemn form of lost will - Solicitor's copy of will available - Testamentary capacity - Presumption of destruction with intention to revoke rebutted - Anterior will duly executed - Anterior will providing for children's spouses, grandchildren and great-grandchildren - Joinder of infant beneficiaries under earlier will - Order for appointment of representative defendant for unborn grandchildren and great-grandchildren - Doubt as to effect of limitations on vesting - Nature and duration of grant
Legislation:
Wills Act 1970 (WA)
Result:
Probate in solemn form of law of copy of lost will in form to be settled by a Probate Registrar limited until proof of the last will or a more authentic copy thereof
Liberty to apply in relation to the form of the grant
All parties' costs in the proceedings to be paid out of the estate
Category: B
Representation:
Counsel:
Plaintiffs : Mr R Guerrini
First Defendants : No appearance
Second Defendants : Mr M Curwood
Third Defendant : Mr M Curwood
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Solicitors:
Plaintiffs : Vincent Partners
First Defendants : No appearance
Second Defendants : Curwood & Co
Third Defendant : Curwood & Co
Case(s) referred to in judgment(s):
Cahill v Rhodes [2002] NSWSC 561
Corbett v Newey [1996] 3 WLR 729
Curley v Duff (1985) 2 NSWLR 716
Deeks v Greenwood [2011] WASC 359
Harris v Knight (1890) 15 PD 170
In the Estate of C R Phibbs (Deceased) [1917] P 93
McCauley v McCauley (1910) 10 CLR 434
Orifici as Executor of the Estate of Rosario Giuseppe Orifici v Orifici [2007] WASC 74
Re Webb, Smith v Johnston [1964] 1 WLR 509; [1964] 2 All ER 9
Sawyer v McKenzie [2011] WASC 215
Scarpuzza v Scarpuzza [2011] WASC 65
Welch v Phillips (1836) 1 Moo PC 302; 12 ER 828
Woodward v Golstone (1886) LR 11 App Cas 469
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1 EM HEENAN J: Collin Jay Proud, late of 5 Collier Street, Wembley, retired statistician, died on 6 August 2011 in his 86th year. He had been born on 24 July 1926. At the date of death he was a widower.
2 Mr Proud was survived by his five adult children, two of whom, Stephen Jay Proud and Simon Proud, are the plaintiffs in this action, and all five of whom are the first defendants.
3 By these proceedings the deceased's two eldest sons are seeking a grant of probate in solemn form of law of what they propound is a copy of the last will of their father said to have been duly made and executed on some date, now unknown, between September 2010 and the end of January 2011 but which has been lost. A solicitor's copy of that will as prepared but not executed, together with evidence as to instructions given for the preparation of the will and its despatch to the testator for execution, has been adduced in support of this action.
4 There is evidence from members of the family that the deceased had spoken to them on various occasions after January 2011 to the effect that he had remade his will and that the new will could be found among his books and papers at his home in Collier Street, Wembley. The evidence is to the effect that the late Mr Proud had a very large collection of books, papers, newspapers, articles and other similar materials accumulated in his home and that the shelves and tables were stacked high with such materials without any regular or, at least to others, apparent system. On occasions when the deceased spoke to members of his family about having made a new will he told them it would be found in the house and pointed generally in the directions of his piles of collected materials.
5 Mr Proud had been living alone in the former family home for quite some time and he died there suddenly. Despite extensive searches by members of the family, the new will was never found. It is distinctly possible that it might have been inadvertently thrown out or destroyed when the house was cleared of the large quantities of books, papers, articles and documents already described or that this may even have inadvertently been the result of Mr Proud's own conduct during his lifetime.
6 What is clear is that the deceased gave instructions to his solicitors to prepare a new will for him making some material, but not extensive, modifications to an earlier will duly executed on 2 June 2004. The new will was prepared by the same solicitors who had prepared the 2004 will as a result of instructions to that effect given to them by the deceased at
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- first by telephone on or about 31 August 2010 soon later at a visit to his home by Mr Camillo D'Angelo, a solicitor in that firm, on the evening of 1 September 2010 in company with his solicitor partner, Mr Robert Guerrini.
7 Following those instructions a new will was prepared and sent to the deceased in draft form for approval under cover of a letter of 7 September 2010. On or about 11 September 2010 Mr D'Angelo spoke to the deceased by telephone, when the deceased said that he was happy with the proposed new will and intended to show it to his sons and to get back to the solicitor with further instructions. On or about 17 September 2010 the solicitors received a cheque from the deceased for the sum of $935, being the fee estimate quoted to the deceased for their services in preparing the amended will.
8 Various communications between the solicitors and Mr Collin Proud followed. These will be described in more detail later but, in short, they included a number of follow-up enquiries by the solicitors to see whether Mr Proud had any queries about the will and whether or not he was ready to finalise the document. By early January 2011, not having heard further from Mr Proud, Mr D'Angelo telephoned him once more and was then informed by the deceased that he had executed the new will in the presence of a neighbour or neighbours and, on being asked whether it had been properly witnessed and Mr D'Angelo offering to visit Mr Proud's home again to engross the will in final form, he was told by the deceased that Mr Proud was happy with what he had signed and that he would let him know if he wanted to change anything further. Mr Proud did not contact his solicitors again in relation to the will.
9 This action is for a grant of probate on the basis that the 2010/2011 will was duly executed by the deceased and not for proof of an inadequately executed or unexecuted testamentary instrument under Pt X of the Wills Act, there being no allegation that the deceased did not, in fact, execute the document in the presence of two subscribing witnesses as required by s 8 of the Wills Act. However, if the will were not executed by the deceased, then the earlier will of 2004 would be his last will and would determine the distribution of his estate. If, however, the 2010/2011 will had been duly executed but had been lost, then upon satisfactory proof of its terms it should be declared to be the last will of Mr Proud and would govern the distribution of his estate.
10 A third possibility is that the 2010/2011 was duly executed and became the last will of the deceased, so revoking the 2004 will, but that it
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- was later destroyed by the deceased with the intention that by doing so it should be revoked. In that case, in the absence of further will, the deceased would have died intestate and his estate would be distributable under the provisions of s 14 of the Administration Act 1903 (WA) which, in the circumstances of this family, would mean that the estate would be distributed in equal shares between his five children, the first defendants. So it is necessary for the court to consider which of these three possible outcomes is established to the sufficient degree of proof by the evidence.
The estate of the deceased
11 Mr Collin Jay Proud left an estate the net value of which is sworn to be $2,877,994.90. The principal assets are the deceased's house and land at 5 Collier Street, Wembley, which is owned solely by him and is unencumbered. In addition, he had a valuable portfolio of shares, bank and cash deposit accounts and some personal effects to a total value of $1,892,662.50, making the gross value of his estate $2,892,662.50. There is a series of relatively small debts, including funeral expenses totalling $14,667.64. Apart from the house, the deceased's single other most valuable asset is a parcel of shares in the Commonwealth Bank of Australia valued at approximately $1.766 million. The future disposition of the Wembley house and of the Commonwealth Bank of Australia shares features prominently in the two wills of 2004 and 2010/2011 respectively.
The deceased's family
12 Both of the wills make provision for the children of the deceased, their spouses, his grandchildren and great-grandchildren. It is necessary, therefore, to identify the various members of the deceased's family.
13 Stephen Jay Proud, the first plaintiff and the first named of the first defendants, is the eldest child of the deceased and his late wife, Pamela Joan Proud. Stephen was born on 31 January 1955 and was later married to Pearl Proud but was divorced from her in 2007. They had one child, Ruben Jay Nkululeko Proud, born on 6 May 1996, now nearly 15 years of age.
14 The second child of the deceased is Simon Proud, the second plaintiff and the second named of the first defendants. He was born on 30 December 1956 and is married to Joanne Proud. They have two children, Alley and Christian, who are twins, born on 26 February 1994. Accordingly, both are now over the age of 18 years.
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15 The third child, Neil Proud, was born on 4 March 1960 and was married to Isabel Hahnel, but was divorced from her in 2002. They had two children, Lewis Charles Proud, born on 14 April 1997, and Natasha Suzanna Proud, born on 22 December 1998. Lewis is now almost 15 years of age and Natasha is presently aged 13 years.
16 Michael James Proud, the fourth child of the deceased, was born on 12 June 1962. He has never been married and has no children.
17 The fifth and youngest child of the deceased is Jane Proud, born on 31 July 1964. She has been married but divorced her husband and there were no children of that marriage. She was later in a relationship with the father of her only child, Jake Christopher Michael McArdle, born 18 December 2000. Jake is now 11 years old. Jane Proud and Jake's father separated about five years ago.
18 None of the deceased's grandchildren has any children.
Joinder of parties and appointment of representative defendant
19 When this action came on for trial originally on 23 March 2012 only the plaintiffs and the first named defendants were then parties. As the evidence adduced then established that if the alleged will of 2010/2011 had not been made by the deceased, then the 2004 will would be his last will of the deceased, it followed that beneficiaries who may take a greater share of the estate under the 2004 will than under the 2010/2011 will and, even more so, beneficiaries who would take under the 2010/2011 will but would not be entitled to share in distribution in the event of an intestacy, all had an interest in the outcome of this litigation and that some of these affected beneficiaries or potential beneficiaries were infants.
20 I therefore directed that the trial should be adjourned and that notice of the action and of the plaintiffs' claims should be given to the affected beneficiaries or potential beneficiaries and that the infant beneficiaries should be joined as defendants and represented by a suitable guardian or guardians ad litem. Furthermore, because each of the two wills had the effect of including in the range of beneficiaries any further grandchildren and any great-grandchildren of the deceased as yet unborn, it would necessary to make provision for representation of such potential unborn grandchildren or great-grandchildren of the deceased who may yet be born.
21 In the time which elapsed from 23 March until 11 April 2012 notice of these proceedings was given to those other beneficiaries, not already
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- parties to the action, who are of age. They are Mrs Joan Proud, the wife of the second plaintiff, and their two children, Alley and Christian Proud, each now 18 years of age. Each of those three has filed a notice of intention to abide by the decision of the court and none wishes to be joined or heard. Mrs Joan Proud is the only spouse of any of the children of the deceased at the date of his death.
22 Also, on the application of the plaintiffs on 11 April 2012 I ordered that each of the four infant grandchildren of the deceased, namely Ruben Jay Nkululeko Proud, Lewis Charles Proud, Natasha Suzanna Proud and Jake Christopher Michael McArdle should be joined as second defendants in the action and that Connie Murray be appointed as guardian ad litem for each of those infant defendants, having consented to act as guardian and her suitability to act in that capacity having been verified by the affidavit of Mr M Curwood sworn 5 April 2012.
23 In addition, again on the application of the plaintiffs and with the consent of her counsel, I ordered that Mrs Connie Murray should be joined as a third defendant, being so appointed pursuant to RSC O 18 r 13 to represent any unborn person within the classes of further grandchildren or great-grandchildren of the deceased who may be born and so become a potential beneficiary under either of the wills of the deceased. By her counsel, Mrs Murray consented to that appointment and submitted to the court that she supported the plaintiffs' claim for proof of the alleged lost will of 2010/2011. As guardian ad litem of each of the four infant grandchildren, and again through her counsel, Ms Murray adopted the same position.
24 Each of the first defendants, the five children of the deceased, had earlier also joined in in supporting the plaintiff's claim for probate of the alleged lost will of 2010/2011. Prior to the first day of the trial on 23 March 2012, each of the five first named defendants had filed a notice of intention to abide by the decision of the court and they maintained those positions upon the joinder of the additional defendants.
25 By orders and directions made by a Registrar at a status conference on 15 February 2012 it was directed that the plaintiffs should enter this action for trial on an undefended basis to be heard on the affidavit evidence filed by 1 March 2012. Since then, as a result of the directions and orders joining the additional defendants made on 23 March 2012, some further affidavits have been filed and, without objection, it has been accepted that these additional affidavits should be accepted as evidence at this trial. No party has sought to cross-examine any deponent, nor has any
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- party sought to adduce other evidence save for the tender by the plaintiffs of their father's death certificate. The trial has, therefore, proceeded on an uncontested basis but, nevertheless, it is necessary for the plaintiffs to prove on the balance of probabilities that the copy of the lost will being propounded is a copy of the last will of the deceased and is unrevoked so that it should be admitted to probate.
The earlier will of 2 June 2004
26 The solicitor, Mr Camillo D'Angelo, then as now a member of the firm of Vincent Partners Lawyers of North Perth, received instructions from the late Mr Collin Jay Proud in 2004 to prepare for him his last will and testament. He duly did so and that will was executed by the deceased in the presence of Mr D'Angelo and his partner, Mr Robert Guerrini, as witnesses on 2 June 2004. A copy of that will is in evidence annexed to the affidavit of Mr D'Angelo sworn 14 February 2012.
27 By the June 2004 will the deceased appointed his two sons, Stephen Jay Proud and Simon Proud, to be joint executors and trustees with further provisions appointing successively other children should those two be unable or unwilling to act. The will directed that the executors should hold all of the testator's estate on trust subject to payment of all debts and testamentary and administration expenses, and that they should then hold the testator's estate as follows:
1. That the house situated at 5 Collier Street, Wembley (or any other house at which the testator was living at the time of his death) should be sold and that the net proceeds of the sale and any cash forming part of the estate should be used for the purchase of Commonwealth Bank shares (or if the Commonwealth Bank ceased to exist or its shares could not be purchased, in any one or more of the three largest Australian banks then trading).
2. That all personal effects not disposed of prior to the testator's death should be distributed equally between his children.
3. That his estate should then be held upon a trust to be known as the C J Proud Estate Trust on the following terms:
(i) for the maintenance and renewal of the lease of the testator's grave and grave plaque maintenance costs during the lifetimes of his children, grandchildren and great-grandchildren;
- (ii) for the annual payment of one-half of 1% of the annual income of the trust to be paid from the dividend income to the trustee;
(iii) that the trust income should be distributed every six months to each of the deceased's children in equal shares during their lifetimes and after their death to their spouses for the life of their spouses;
(iv) upon the death of each of the deceased's children and their respective spouses the income which would have been distributed to that child or spouse should be distributed equally amongst the biological children of that deceased child who survive the testator (his grandchildren);
(v) upon the death of each grandchild the income which would have been distributed to that deceased grandchild during his or her lifetime should be distributed equally amongst the children of the deceased grandchild;
(vi) upon the death of the last grandchild of the deceased the capital of the trust should be distributed equally to each of the deceased's great-grandchildren who survive his last living grandchild.
28 This will also contained an expression of the testator's wishes about the way his great-grandchildren should each consider dealing with their share of his estate but did not impose any obligations in that regard. The will also contained a number of other administrative and directory provisions which are not material in the present circumstances and which, therefore, need not be examined.
29 In the affidavit of the second named plaintiff and the second named first defendant, Simon Proud, he states that the deceased, his father, whom he visited regularly, told him of his intentions to amend his then existing will. In his affidavit Mr Stephen Proud says that his father referred to the existing will as one made in 2009 but, in the circumstances, this can only have been, or must have intended to have been, a reference to the 2004 will. The explanation given by the deceased to his son, Mr Stephen Proud, then was that he desired to amend his will to assist his children to be able to pay off their mortgages and to improve their security and, in the case of his daughter, Jane Proud, to overcome some significant financial difficulties which she was experiencing. The deceased's explanation was that he desired to achieve that goal by having the proceeds of the sale of
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- his house at 5 Collier Street available for distribution to his children upon his death. Later, in early September 2010, the deceased told Mr Simon Proud that he had given instructions to his lawyers to change his will to reflect those intentions.
30 I have earlier set out how Mr Camillo D'Angelo has deposed to having received instructions in August and September 2010 to prepare a new will for Mr Collin Jay Proud, how he and his partner, Mr Guerrini, visited the deceased to confirm those instructions, and how a will in draft terms embodying those instructions was sent to the deceased for approval under cover of a letter of 7 September 2010. The details of the events which then followed leading to Mr Proud's expression of satisfaction with the will, his statement that it had been executed and payment of the lawyer's account, have already also been briefly mentioned.
The 2010/2011 will
31 It is not possible to identify precisely when this will was formally executed, but the evidence is to the effect that any execution must have occurred between 7 September 2010 and early or mid-January 2011. This is no impediment to the proof of a will otherwise established by the evidence because, as I observed in Deeks v Greenwood [2011] WASC 359 [67], the absence of a date upon the document being propounded as the will of the deceased is not an obstacle, of itself, to a grant. This is because, in the absence of a contrary intention, a will is to be construed with reference to the property comprised in it to speak and take effect as if it had been executed immediately before the death of the testator - Wills Act 1970 (WA) s 26(1)(a) and, as observed by Waite LJ in Corbett v Newey [1996] 3 WLR 729, 734:
There is no requirement in law that the will should be dated. Lack of a date or the inclusion of the wrong date cannot invalidate a will.
32 As will be seen, the evidence points to the deceased having executed the will by early January 2011 at the latest, he having told Mr D'Angelo in the telephone conversation of early January that he had done so. Similarly, the deceased's conversations with his son, Simon Proud, also indicate that by September or October 2011 he was stating that he had signed the new will.
33 The solicitors at Vincent Partners, of course, had a copy of the new will in the form in which it had been prepared in draft and sent to Mr Proud under cover of the letter of 7 September as described. Mr Proud had also given a copy of the unsigned September 2010 will to his son,
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- Simon Proud, advising that that was his current will and for Simon to keep it for reference when he died. A copy of that document was produced by Mr Simon Proud and annexed to his affidavit of 30 November 2011.
34 The copy of the 2010 will sent to the deceased on 7 December 2010 shows that it was prepared by solicitors in style and layout similar to the 2004 will. It commenced with a conventional clause revoking all previous testamentary acts and declaring this to be the testator's last will and testament. Again, it appointed Stephen Jay Proud and Simon Proud as joint executors and trustees but with further provisions to appoint other children in succession should those two be unwilling or unable to act. Again, the whole of the estate of the deceased was left to the executors to be held on trust subject to the payment of all debts, testamentary and administration expenses.
35 The first major variation from the earlier will related to the disposition of the house and land at 5 Collier Street, Wembley. Under this version of his will Mr Proud directed that the Collier Street house (or any other house in which he resided at the time of his death) should be sold and that the proceeds of the sale should be dealt with by his trustees as follows:
(a) one-fifth to be applied firstly in reduction of the mortgage on the home of his daughter, Jane Proud, and the balance of that one-fifth interest to be given to Jane absolutely;
(b) four-fifths of the proceeds of the house to be divided between the deceased's four other children, who were named, in equal shares absolutely.
36 This will then provided that the residue of the estate should be held upon trust in a fund to be known as the 'C J Proud Estate Trust' upon the following terms:
(a) the testator's preference was that the trust should hold his Commonwealth Bank shares and invest the residue of the estate in acquiring additional Commonwealth Bank shares;
(b) that the lease of his grave should be maintained and renewed and that all renewal and grave plaque maintenance costs should be met from the income of the trust during the lifetimes of his children, grandchildren and great-grandchildren;
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- (c) that the trustee should be paid an annual payment equal to one-half of 1% of the annual income of the trust fund to be paid from the dividend income of the trust;
(d) the annual net income of the trust should be paid every six months in equal amount to each of the trusts established by the will.
37 The will then directed that the trust income should be distributed every six months to each of the deceased's children in equal shares during their lifetime. It further provided that upon the death of each child the income of the trust fund that would have been distributed to that child during his or her lifetime should be distributed in equal shares amongst the biological children of that child who survive the testator and live to attain the age of 18 years (the grandchildren). Next, the will provided that upon the death of each of the testator's grandchildren the income that would have been distributed to such grandchild during the lifetime of that grandchild should be distributed in equal shares amongst the children who live to attain the age of 18 years of that deceased grandchild, so that the great-grandchildren step into the shoes of their respective parents and share equally the benefits their parents would have enjoyed if they had survived. Next, the will provided that upon the death of the last grandchild the surplus income, if any, and the capital of the trust should be distributed in equal shares absolutely to the testator's great grandchildren who survive his last surviving grandchild and who live to attain the age of 18 years.
38 This testament also contained an expression of the testator's desire about how the great-grandchildren might each consider dealing with their share of his estate in their own wills and contained other comparable administrative and directory provisions which again need not be mentioned.
39 Notable changes in the 2010/2011 will when compared with the 2004 will include the following:
(a) the proceeds of the sale of the house and land at 5 Collier Street, Wembley (or any other residence of the deceased) are to be distributed equally between the five children of the deceased and, in the case of Jane Proud, to be applied first in the reduction of the mortgage on her home;
(b) no spouse of any of the children of the deceased is to receive any income from the trust fund;
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- (c) the eligibility of the grandchildren or great-grandchildren to share equally per stirpes in the share of income of the trust which his or her deceased parent would have shared had that parent lived becomes conditional upon that grandchild or great-grandchild living to attain the age 18 years; and
(d) that the determination of the trust and the distribution of accumulated income, if any, and capital should occur to the testator's great-grandchildren who survive his last surviving grandchild upon such great-grandchildren living to attain the age of 18 years.
40 From these differences it follows that under the 2010/2011 will, when compared with the 2004 will, there will be less capital, and accordingly less income, available for the trust fund and hence for grandchildren and great-grandchildren and payments of that income will likely be deferred because:
(a) the proceeds of the sale of the testator's house and land will be immediately distributable equally between his five children;
(b) the entitlement of the eligible grandchildren and great-grandchildren to the income from the trust fund becomes conditional upon each such grandchild and great-grandchild attaining the age of 18 years; and
(c) the final distribution of accumulated income, if any, and capital to eligible surviving great-grandchildren becomes conditional upon such great-grandchildren each attaining the age of 18 years.
41 It is possible that the final vesting of the trust established by this will may occur outside the perpetuity period and hence give rise to the need to wait and see or consider the partial invalidity of that trust - Pt XI Property Law Act 1969 (WA). It is also possible that there may be no great-grandchildren or none who survive the last surviving grandchild. Those possibilities might lead to a failure of the trust and a resulting trust to the testator producing a partial intestacy but any such difficulties may never materialise or, if they do, may lie far in the future. Nevertheless, they may have major problems if they do arise. There is no occasion to address them now and they were not raised in submissions but it may be unwise not to notice the potential for some of them to occur. For present purposes the only question for determination is whether or not the 2010/2011 testament is the last valid will of the deceased. The court is not presently asked to consider what might be the eventual effect of its
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- provisions or whether any of them is susceptible to future failure or invalidity producing yet further consequences, or a resulting partial intestacy.
The evidence
42 After the death of his wife Mr Collin Jay Proud continued to live in the family home at 5 Collier Street, Wembley, alone. He did not remarry nor establish any new relationship. He was on good terms with his children and grandchildren and, so it seems, spoke to them regularly. His two eldest sons, Dr Stephen Proud and his brother Simon Proud, visited him regularly. According to Mr Simon Proud, he used to speak to his father once or twice a week and visit him on average once a fortnight discussing many topics. Dr Stephen Proud visited his father most Sundays at his home, spending about two hours with him each time. It seems that these two brothers visited their father separately and were also in touch with each other.
43 As stated earlier, the late Mr Collin Proud told his son, Simon Proud, that he had made a will, which must have been a reference to the 2004 will, and that his brother Stephen and he, Simon, were the executors. Mr Simon Proud says that in about the middle of 2010 his father told him of his intention to amend the will, it being a common theme in many earlier similar conversations, that the deceased had wanted to help his children and also to make sure that his legacy continued once his children had died so he could help his grandchildren. According to Simon Proud, his father told him that he wanted to amend his will to assist his children to be able to pay off their mortgages and improve their security and, in the case of their sister Jane, to avoid her house being repossessed. The proposed means of achieving this was to provide that the proceeds of the sale of the house at 5 Collier Street should be available for that purpose.
44 In early September 2010 Mr Proud told his son Simon that he has instructed lawyers to change his will to reflect these intentions and that he was happy with the will as it had been prepared for him and that he signed it. According to Simon Proud, in subsequent discussions with his late father the subject of the father's will came up and his father indicated to Simon that he had signed the amended will and observed that he was happy that he had made the amendments. Mr Collin Proud gave a copy of the unsigned September 2010 will to Simon saying that this was his current will and for Simon to keep it for reference when he died. Simon Proud has identified that copy of the document as an annexure to his affidavit sworn 30 November 2011. Simon Proud believed, from
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- discussions with his father, that his father had signed the will and that the signed copy was to be found amongst the father's papers in a nominated drawer in his kitchen.
45 After the death of Mr Collin Proud, Simon and his brothers and sister thoroughly searched the kitchen and the entire house at Collier Street and found many unsigned copies of the amended will but no signed copy of the document. Simon Proud emptied his father safety deposit box but found no will. He enquired of his late father's bank whether there was any security box there or whether they held a will, and made similar enquiries of all his brothers and sister but without finding a signed copy of the will as amended.
46 On 12 November 2011 Simon Proud caused an advertisement to be published in the public notices section of The West Australian newspaper asking for any information known to persons about the whereabouts of the last will and testament of his father which was thought to have been made in about September 2010. However, there was no response to that advertisement.
47 From his knowledge of his father and his father's habits, Simon Proud believes that the deceased would not have left the signed copy of the will with anyone else other than his brother, Stephen, or himself and that he would only have kept a copy for himself and with his lawyers. Mr Collin Proud was known by his sons to have had a good relationship with his neighbour, Ms Connie Murray, and accordingly they enquired of her whether she had any knowledge of a signed copy of the will, but she had no such knowledge.
48 In the period after September 2010 in conversations with his son, Simon Proud, the deceased said many times that he had changed his earlier will to ensure that his daughter, Jane, could own a home for the future of her son, Jake.
49 Mr Simon Proud knows of no other will, codicil or testamentary document made by the deceased and is not aware of any revocation of what he believes to have been his father's last will. He is over the age of 18 years and has sworn that if granted probate, together with his brother, he will administer his father's estate according to law. Finally, he has no knowledge, information or belief of any previous application for probate or administration of his father's estate having been made.
50 Dr Stephen Jay Proud, the other plaintiff, also confirms that he is seeking to obtain a joint grant of probate in solemn form of what he
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- believes to be the lost last will of his late father made some time after September 2010.
51 According to Dr Stephen Proud, during his regular visits with his father throughout 2010, Mr Collin Proud told him that he intended to make some small amendments to his will, and in September 2010 his father told him that he had recently had his will amended to reflect those intentions. Dr Stephen Proud told his father that he had informed his brothers and sisters of the changes to the will which his father had described and that each was happy with his or her father's intentions and how they were relieved that he had amended his will in the manner described. According to Dr Stephen Proud, his father was 'proud and content with his amended will'.
52 Dr Stephen Proud had been present at his father's home on 1 September 2010 at the meeting between his late father and his solicitors, Mr Camillo D'Angelo and Mr Robert Guerrini, which has already been described in the evidence of Mr D'Angelo as the occasion on which the two solicitors attended the Proud home, following up an earlier telephone request, to take instructions for the preparation of a new will for the deceased. Dr Proud says that for some of this visit the solicitors spoke privately to his father.
53 Some time later, Mr Collin Proud told his son, Dr Stephen Proud, that the amended will had been received, was as he wanted it and that he had signed it. According to Dr Stephen Proud, his father's declared intention in amending the will was to make provision to assist his children to be able to pay off their mortgages and to improve their security and, in the case of his daughter, Jane Proud, to avoid her house being repossessed. This was to be achieved by utilising the proceeds of the sale of 5 Collier Street after the deceased's death for distribution to the five children so excluding it from the beneficiary trust into which the Commonwealth Bank shares were to be held. As a result of those changes, Dr Stephen Proud lent his sister, Jane, $14,000 to renovate her house for sale so that she would be able to clear her mortgage arrears and with the net balance added to her one-fifth share of her father's house sale proceeds she would be able to purchase a house, mortgage-free, for herself and her young son, Jake.
54 After Mr Collin Proud's death, Dr Stephen Proud, together with other members of the family, thoroughly searched the house for the amended will. They found many unsigned copies of the document but no signed copy. Again, as a result of his knowledge of his father and his father's
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- habits, Dr Stephen Proud believes that his father would not have left the original will with any third party. Dr Stephen Proud also made enquiries of Ms Connie Murray as to whether she had any knowledge of a signed copy of his father's will but was told that she did not.
55 Like the other children of the Proud family, Dr Stephen Proud is over the age of 18 years and has sworn that if granted probate together with his brother, Simon, he will administer his father's estate according to law.
56 In a supplementary affidavit sworn 29 February 2012 Dr Stephen Proud has elaborated on his late father's living arrangements. He described how the late Collin Jay Proud was an academic and a lecturer in commerce at the University of Western Australia during his working life. According to his son, Stephen, the deceased had read avidly during his lifetime and hoarded a large volume of literature. The home at 5 Collier Street, Wembley was full of piles of articles and writings on many different topics. In the living room, kitchen and other spare rooms of the home were stacks and stacks of such papers. Within these stacks, Stephen and his brother, Simon, collected a number of unsigned copies of their father's will (the same document which their father had told Stephen he had signed and which is annexed as an exhibit in these proceedings). According to Dr Stephen Proud, these hoards of books and articles were not organised in any particular way. For example the kitchen table was completely buried by them. Dr Stephen Proud believes that it is possible that his father placed the signed will of September 2010 in one of the many piles of papers, not remembering where in particular he had left it.
57 In the supplementary affidavit, Dr Stephen Proud again mentions how he had many conversations with his late father about the new will during late 2010 to mid-2011. According to Dr Stephen Proud, his father told him on a number of occasions that he, the father, thought that he had done the right thing with his estate by this new will in making sure that each of his children receive something immediately from the sale of his home after he died. Stephen remembers asking his father on two or three occasions, 'Dad, have you put the will in a safe place?' and his father responding on one occasion, 'Oh, yes, don't you worry about that. It's in here somewhere, probably in that lot', pointing to a stack of papers in the living room. On another occasion, his father said in response to a similar question, 'Yes, yes. It's all fine. It's in the house, all signed, sealed and delivered', and on yet another occasion his father said to him, 'Your brother and you will have a job to sift through this stuff some day, but it's here. It's all good and important stuff. I told you before, you will come across it.'
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58 During one of these discussions, the deceased told his son, Dr Stephen Proud, that he had signed the will in front of a neighbour and friend. His son, Stephen, did not think it important to ask his father who these witnesses might have been and was not then aware of the potential significance of this information either generally or in that case. Dr Stephen Proud does not know who his father might have called upon to witness his signature to a will. The only person he could think of is the next-door neighbour, Ms Connie Murray, but, as already mentioned, enquiries of her revealed that she had no information about such a will.
59 According to Dr Stephen Proud, his father's health began to deteriorate in about March or April of 2011. However, there is no suggestion that he suffered any loss or reduction in mental capacity. The causes of death noted on the death certificate, acute myocardial infarction (immediate) associated with other chronic heart and lung disease, does not suggest otherwise. Dr Stephen Proud does not believe that his father would have knowingly disposed of the new will or would have done anything else to revoke or amend it without informing him and/or other members of the family. In all the discussions between Dr Stephen Proud and his father, the deceased referred to this last will as his current will.
60 Earlier in this narrative I set out the evidence from the solicitor, Mr Camillo D'Angelo, of his communications with the late Mr Collin Proud about making a new will; the visit to the Proud residence on 1 September 2010, together with Mr Guerrini, to obtain instructions for the new will; and the posting of a draft proposed will to Mr Proud under cover of the letter of 7 September 2010 for approval. It is necessary to recount in more detail the evidence relating to communications between the solicitors for Mr Proud from early September 2010 onwards.
61 The letter from Vincent Partners Lawyers to Mr Collin Proud of 7 September 2010 accompanying the draft will, omitting formal parts, read as follows:
I note that the substantive change to the Will is that you now direct your home at 5 Collier Street, Wembley is sold and the proceeds divided equally between your children on the basis that Jane's interest be applied towards the reduction of her mortgage (see clause 3(b)(i)). If Stephen follows through with his intention to assist Jane with a loan to pay out her existing mortgage, Stephen will become the Mortgagee, therefore, the funds would be applied in reduction of his loan to Jane. The balance, if any, would go to Jane (as with her siblings).
The Will otherwise provides that:
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- (a) your existing Commonwealth Bank shares and other assets be applied as originally instructed, namely to maintain the lease of your grave at Pinnaroo Valley, and the remaining matters referred to in your existing Will (see clause 3(b)(ii));
(b) your grandchildren and great-grandchildren must live to attain the age of eighteen years to receive their income distributions and eventual capital distribution (see clauses 3(c) to (g) inclusive).
In all other material respects your Will remains unchanged.
As to fees for the amendment, in the absence of any further queries or amendments, I would be prepared to mark the time for taking and confirming instructions, drafting the amendments, finalising and witnessing the Will at say '$850 plus GST for a total of $935 (or approximately 2.5 hours).
In the absence of any queries or other amendments, please let me know when you would like to execute the Will and I will make arrangements to attend your home so that you may execute it at your convenience and in comfort.
Please contact me in the event that you have any queries.
…
Vincent Partners
62 From this it is evident that Mr D'Angelo contemplated that Mr Proud would respond by advising whether or not any changes to the draft will were desired and, if they were, arrangements would then be made for them to be implemented. It is also clear that, whether or not changes to the draft will were desired, Mr D'Angelo anticipated that on confirmation by Mr Proud of satisfaction with the will in its final form, he, Mr D'Angelo, might call at the Proud home and see to the finalisation of the will, by which he must be regarded as meaning that he would, if so requested, attend for the due execution of the testament. It is also obvious that the reference to the solicitors' fees was a statement of intention to charge the fee proposed and that an actual account for payment was not, at that point, being rendered.
63 Mr D'Angelo then telephoned Mr Proud on or about 11 September 2010 and was told by his client that Mr Proud was happy with the amended draft will and would show it to his sons and get back to Mr D'Angelo with further instructions. Mr D'Angelo offered to be available to speak to his sons to address any issues if so desired and said that Mr Proud could otherwise get back to him at his convenience.
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64 The receipt of a cheque from Mr Proud for $935 on or about 17 September 2010 surprised Mr D'Angelo and he asked his secretary to contact Mr Proud and ask why the cheque had been sent because he, Mr D'Angelo, thought that they still needed to meet and confirm that the amended draft will was satisfactory and, if so, to make arrangements to finalise the will and that his firm, Vincent Partners, had not at that stage issued any tax invoice.
65 The next step was that on 5 October 2010 Mr D'Angelo received a message from his secretary that Mr Proud had telephoned the office of Vincent Partners to say that he had paid his account and had found the will satisfactory but was waiting for his son to come back from Europe and would then call Mr D'Angelo to finalise the will. A contemporaneous email message from the secretary to Mr D'Angelo confirms this communication.
66 Some time afterwards Mr D'Angelo received a further message from Mr Proud to the effect that he had misplaced his copy of the amended draft will and, on having his staff follow up that message on the afternoon of 14 December 2010, Mr D'Angelo received a message to the effect that Mr Proud had found the amended draft will. Again, a contemporaneous email from his secretary confirming this communication with Mr Proud is annexed to the affidavit of Mr D'Angelo.
67 Next, on 16 December 2010, Mr D'Angelo instructed his secretary to telephone Mr Proud to enquire whether he had any queries about the testament or whether he was then ready to finalise the will. A message came back to Mr D'Angelo from his secretary to report that Mr Proud had said that he had sent copies of the will to the family and was still amending a few things and would get in touch with the firm at the start of the new year.
68 Mr D'Angelo's final recollections of the matter are that, on his return to work after the vacation in early January 2011, he himself telephoned Mr Proud to check the position about the new will. Mr D'Angelo says that Mr Proud informed him that he had executed the amended draft will in the presence of a neighbour or neighbours, whereupon Mr D'Angelo reminded him that his will needed to be properly witnessed. Mr D'Angelo recalls that Mr Proud's explanation meant that he had signed the amended draft will on plain paper so he offered to visit Mr Proud to deliver an engrossed and bound copy of the will, but Mr Proud replied to the effect that he was happy with what he had signed and would let Mr D'Angelo know if he wanted to change anything. The file was left open at Vincent
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- Partners in case Mr Proud contacted Mr D'Angelo again but Mr D'Angelo has no recollection of Mr Proud contacting him again either in relation to his will or any other matter.
69 From this it appears that Mr Collin Proud must have kept the draft will in an unexecuted form for some time after it was received from Vincent Partners under cover of the letter of 7 September 2010. Obviously, many copies of that document were made by the deceased presumably in order to discuss it with his children and to provide copies to them for reference. Indeed the evidence establishes that such a copy of the testament was given by the deceased to his son, Simon, some time later. It is also apparent that Mr Proud had probably not executed the will by 16 December 2010 as this was the occasion on which he explained to Mr D'Angelo's secretary that he had sent copies of the document to his family and would contact the solicitor in the new year. However, by the time Mr D'Angelo contacted Mr Proud after the Christmas/New Year vacation, the deceased must have taken some steps to have the will executed because he told Mr D'Angelo that he had done so and declined the latter's offer to come to his home with an engrossed copy of the will for execution.
70 Rightly or wrongly, Mr Proud must have been satisfied personally by then that the will had been duly executed because he made no further attempts to communicate with Mr D'Angelo about the matter. Previously, it was he who had initiated the approach to the solicitors in late August 2010 to request that a new will be made and he had followed up outstanding matters concerning the will from time to time after the receipt of the draft under cover of the letter of 7 September 2010. There is no reason to suppose that Mr Proud would have neglected to attend to any outstanding formalities which he believed may be necessary to give effect to the new will and, as noted, there is no suggestion that he was suffering from any incapacity which might have caused or contributed to any such neglect. Indeed, the evidence of Stephen and Simon Proud from various conversations with their late father indicates that the late Mr Proud stated and believed that the making of the new will had been completed. He had, of course, duly made an earlier will in 2004 and from that experience, if not otherwise, must have been aware of the need for formal execution of the will in the presence of two witnesses. He was also reminded by Mr D'Angelo in the conversation of early January 2011 of the need for the will to have been properly signed and witnessed.
71 Obviously, there is no direct evidence of the new will being signed by the testator or witnessed by any witness. What then is the position in
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- relation to the plaintiffs' obligation to prove, directly or indirectly, due execution of the document in order to obtain a grant of probate?
Proof of due execution
72 Because this is an application to prove a lost will of the deceased, the usual obligation upon the plaintiffs to prove due execution remains. This is not a case in which there is any attempt to prove an informal will where any shortcomings in due execution or even lack of due execution may be dispensed with by the court under the powers contained in Pt X of the Wills Act and, in particular, s 32. In the absence of any direct evidence of due execution the question which arises is whether or not there is circumstantial evidence which would justify the court drawing an inference that the lost will was duly executed. This raises the question of what use may be made of declarations by the testator as to execution of the will. In this respect, the learned authors of Williams, Mortimer & Sunnucks Executors, Administrators And Probate (19th ed) [24-05] write:
Declarations, whether oral or in writing, made by the testator before or after the execution of the will are admissible to show the contents of a lost will but declarations made after execution are not admissible as to the fact of execution itself. This must be shown in some other way because of the statutory requirements as to execution - Walker v Solicitor for Affairs of HM Treasury (1961) 105 SJ 531; Barkwell v Barkwell [1928] P 91 at 96. The cogency of such evidence depends upon the nearness in time of the execution and the declaration: Sugden v Lord St Leonards (1876) 1 PD 154, 242, 252.
73 Furthermore, a lost will may be the subject of a grant even if evidence of execution is incomplete: Harris v Knight (1890) 15 PD 170 and Re Webb, Smith v Johnston [1964] 1 WLR 509; [1964] 2 All ER 9 and although the witnesses are not known - In the Estate of C R Phibbs (Deceased) [1917] P 93 but the evidence must be of extreme cogency - Woodward v Golstone (1886) LR 11 App Cas 469, 475 as set out and described in Tristram & Cootes Probate Practice (28th ed) [32.43].
74 Re Webb, Smith v Johnston was a case of a proof of a lost will, the original having been destroyed by enemy action in Britain during the Blitz in 1940. Proof was achieved by producing a draft which identified the attesting witnesses but one of whom, when called, could not remember witnessing the document, although she had a recollection of being present at the occasion when the testator signed the will. Faulks J admitted the draft will to probate notwithstanding the absence of direct evidence of it being duly witnessed, saying:
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- The question here is whether the court is entitled to say that although there is no such affirmative evidence, the completed draft being used as secondary evidence to prove the contents of the last will, the maxim omnia praesumentur rite esse acta allows the court to say that there being an attestation clause in the completed draft, which speaks to the regularity of the execution of the document, that in the absence of cogent negative evidence is enough. In my view that is enough.
75 In Re Phibbs' Estate probate was granted of an epitome of a lost will as, indeed, was the case in Sugden v Lord St Leonards. In Phibbs' case there was evidence that the testator had made a will which was duly executed and after his death the will had been sent by registered post to a solicitor in Dublin but the package never reached its destination. It was shown to have been practically certain that the letter, and many others, was destroyed by fire which occurred at the General Post Office in Dublin during the Easter uprising in 1916. There was secondary evidence as to the contents of the will and that it contained a proper attestation clause but no-one could recollect the names and addresses of the attending witnesses although clerks in the firm of solicitors who had prepared the will swore that it had been duly executed. Low J was satisfied that the testator did duly execute the will in the terms set out in the epitome and that the court ought pronounce for that notwithstanding the lack of identity of the witnesses.
76 The essential question, therefore, is whether on all the evidence, circumstantial and otherwise, the court can be satisfied that this will was duly executed, realising that the loss of the original is itself a factor which renders normal proof of due execution difficult by itself. With respect, I agree and adopt the observations the learned authors, in Halsbury's Laws of England (5th ed) vol 103 at 716 in the following passage:
A person who sets up an alleged will and is unable to produce it, or any copy or draft of it, or any written evidence of its contents, is bound to prove its contents and its due execution and attestation by evidence which is clear and satisfactory. It seems that the standard of proof required is the ordinary standard of proof in civil cases, namely the establishment of a reasonable balance of probability. If an intention on the part of the alleged testator to do some formal act is established, and the evidence is consistent with that intention having been carried into effect in the proper way, the court may infer the actual observance of all due formalities as a matter of probability - Harris v Knight(1890) 15 PD 170.
77 Harris v Knight is of some guidance. There the widow of the deceased produced a document at his funeral in 1877 which she asserted was a duly executed will leaving part of his estate to her. One of the alleged witnesses, the testator's son, there and then disputed the
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- authenticity of a signature of one of the witnesses, which purported to be his. No steps were taken to prove the will but the widow continued to occupy the house and land until her death in 1885, eight years later, in apparent reliance on the testament. After her death, one of her daughters sought to prove the will but it could not be found, and by then both alleged subscribing witnesses were dead. No copy or draft of the will could be found and there was no proof that it contained any attestation clause but its existence and contents and the handwriting of the testator and one of the witnesses were proved. By majority, Lindley and Lopes LJJ (Cotton LJ dissenting) the Court of Appeal upheld a grant of probate of the lost will based on the presumption of the trial judge, Butt J, that it had been duly executed. In joining in the decision to uphold the grant, Lindley LJ undertook an examination of the application of the maxim omnia praesumentur rite esse acta at 179 - 180 and said:
The maxim … is an expression, in a short form, of a reasonable probability, and of the propriety in point of law of acting on such probability. The maxim expresses an inference which may reasonably be drawn when an intention to do some formal act is established; when the evidence is consistent with that intention having been carried into effect in a proper way; but when the actual observance of all due formalities can only be inferred as a matter of probability. The maxim is not wanted where such observance is proved, nor has it any place where such observance is disproved. The maxim only comes into operation where there is no proof one way or the other; but where it is more probable that what was intended to be done was done as it ought to have been done to render it valid; rather than that it was done in some other manner which would defeat the intention proved to exist, and would render what is proved to have been done of no effect …
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- Mr Proud, including the copy now being propounded for proof, contains a conventional attestation clause and places for each of two witnesses to subscribe their signatures, and for writing their names, addresses and occupations, clearly signifying that completion of such formalities was necessary.
79 It is quite true that there is no evidence of actual execution or attestation of this will nor any evidence as to who might have been the subscribing witnesses apart from Ms Connie Murray. It is also clear that there were vast quantities of books, newspapers, articles and other writings accumulated in the house and that the deceased himself explained to one of his sons that the original will would be found among them. Despite comprehensive searches, it never was but such was the state of affairs that any particular document, including this will, if among this large quantity of other papers, could have been lost, discarded or destroyed inadvertently either by the deceased or by others coming into the house after his death.
80 In practical terms, the decision to be made is to determine whether the plaintiffs have shown it is more probable than not that such an original document did exist and has been inadvertently lost or destroyed. Is this more probable than the contrary possibility that no such original document ever existed and that the deceased simply failed or neglected to have the will executed and witnessed? That is essentially a question of fact and, taking everything into consideration, I must say that I consider it more probable that the deceased did have the will duly executed and that it was lost than the contrary possibility, namely that it was never signed and never duly executed. That contrary possibility would be inconsistent with the particular achievement which Mr Proud had deliberately set out to accomplish and for which he had received advice as to the method of implementation. Accordingly, this is an occasion for the application of the maxim and for drawing an inference that the original of this will was duly executed and witnessed in accordance with s 8 of the Wills Act - which is the conclusion which I have reached.
Proof of the lost will
81 There remains for consideration the possibility that the loss of this will may be due to the 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 s 15(c). The existence of 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
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- destroyed animo revocandi has been fully described and explained in a series of recent authorities, including Orifici as Executor of the Estate of Rosario Giuseppe Orifici v Orifici [2007] WASC 74 (Hasluck J); Dalton v Dalton (Unreported, Library No 970479, 24 September 1997) (Parker J); Scarpuzza v Scarpuzza [2011] WASC 65; and in Sawyer v McKenzie [2011] WASC 215. In the last of those cases I referred to the decisions of Welch v Phillips (1836) 1 Moo PC 302; 12 ER 828 and McCauley v McCauley (1910) 10 CLR 434 as containing authoritative statements of the principles applying and then said at [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] W.N. 174. The presumption may also be rebutted by evidence that the testator lacked the necessary capacity to revoke the will by destroying it.
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- will is so slight as to be insignificant and that the evidence adduced instead supports the conclusion that the will has been inadvertently lost or destroyed without any intention of revocation.
Requirements for proof of a lost will and the nature of any ensuing grant
83 The principles contained in the authorities dealing with the requirements for the grant of probate of a lost will were examined fully by Hasluck J in Orifici; Re the Estate of Rosario Giuseppe Orifici v Orifici [2007] WASC 74. I gratefully accept his Honour's analysis and, as a result, it is sufficient to confine these observations to the following summary. The formal requirements for the validity of the will are set out in s 8 of the Wills Act 1970 requiring the document to be in writing, to be signed or acknowledged by the testator in the presence of at least two witnesses present at the same time who attest and subscribe the will in the presence of the testator. In Curley v Duff (1985) 2 NSWLR 716 Young J identified five matters to be proved where it was sought to grant representation of a lost will. These were that it must be established that there actually was a will; secondly, that such will revoked all previous wills; thirdly, that the presumption of destruction with the intention of revocation is rebutted; fourthly, that the terms of the will or sufficient of them be established; and fifth and finally, that there be shown to have been due execution. Following amendments to the Wills Probate and Administration Act in New South Wales to make provision for informal wills, the principles were considered again by Campbell J in Cahill v Rhodes [2002] NSWSC 561 who observed that to take account of the amendments in the legislation providing for informal wills, the five requirements formulated by Young J in Curley v Duff needed to be modified and that they should from then on be regarded as being:
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 the 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.
84 In Orifici v Orifici Hasluck J then observed [59]:
In addressing these various issues, the decided cases indicate that the standard of proof to be applied is the civil standard of proof, namely, proof on the balance of probabilities: The Public Trustee in and for the State of Western Australia as Administrator of the Estate of Edward Plucinski (dec) v Suwalska [2004] WASC 226 at [12]. However, it seems that in
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- 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: Dalton v Dalton (Unreported, SCt of WA, Library No 970479, 24 September 1997 per Parker J at 4).
85 In the present case the five elements have been established. Clearly, the solicitors Vincent Partners prepared a new will for Mr Proud and sent it to him for consideration and, if approved, execution. Authentic copies of that will before execution have been produced showing that the document contained a clause revoking all previous wills, establishing the contents of the proposed testament and containing a conventional attestation clause. The evidence which I have examined and considered positively rebuts the presumption arising from the loss of the will that it may have been destroyed with the intention of revocation. In this case, the only issue upon which there might be considered to be any doubt was whether or not the will was duly executed but, for reasons which have already been set out, I am satisfied that an inference should be drawn that it was.
Form of grant
86 At [24-02] of Williams, Mortimer & Sunnucks, Executors, Administrators & Probate the learned authors observe that where an original will or codicil is lost, destroyed or damaged and an application is made for an order admitting it to proof as contained in a carbon copy, draft, photocopy or reconstruction the grant made, if the will has been lost, is limited until the original or a more authentic copy is proved and if the will has been destroyed the grant which issues is limited until a more authentic copy is proved. This is to provide for the contingency that the original of a lost will or a more authentic copy of a destroyed will might subsequently be produced and become the subject of a further grant - known as a cessate grant (Tristram and Coote's Probate Practice (28th ed, 1995) 13.81, 13.82).
87 It follows that in the present case I conclude that Collin Jay Proud made his last will and testament on a date unknown but between 7 September 2010 and 31 January 2011, and probably in early January 2010, and that will is unrevoked. There should be a grant of probate in solemn form of law of that will in the form of its unexecuted draft annexed to the affidavit of the plaintiff Stephen Jay Proud, sworn 9 December 2011, notwithstanding that that copy of the will is not executed. The grant should be to the plaintiffs Stephen Jay Proud and Simon Proud, the lawful sons of the deceased and the executors named in
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- the will. This grant of probate shall be limited until the original or a more authentic copy of the will is proved. The actual terms of the grant shall be settled by a Probate Registrar of the court and there will be liberty to apply in relation to any matter or issue arising concerning the terms of the grant.
88 The costs of these proceedings should be paid by the estate.
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