Re Estate of Hall (deceased)
[2011] SASC 117
•20 July 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of LISA KAREN HALL (DECEASED)
[2011] SASC 117
Judgment of The Honourable Justice Gray
20 July 2011
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - REVOCATION - METHODS OF REVOCATION - DESTRUCTION OR MUTILATION, OR STRIKING OUT PORTIONS - PRESUMPTION OF DESTRUCTION OF LOST WILL ANIMO REVOCANDI
Application for an order that probate of the deceased's will, as contained in a copy, be granted to one of the executors of the deceased's will - the deceased's will was executed at her solicitor's office on 18 December 2009 - the deceased retained the original copy of the will - the deceased died on 9 June 2010 - the deceased's original will has not been found, but a copy has been located - where the presumption of revocation arises on the facts - whether the presumption of revocation has been rebutted.
Consideration of the principles relating to lost wills.
Held: application granted - the presumption of revocation has been rebutted - probate of the deceased's will, as contained in a copy, is granted limited until the original will or a more authentic copy is brought into and left in the Probate Registry of this Court.
Wills Act 1936 (SA) s 8; Probate Rules 2004 (SA) r 68 and r 77, referred to.
In the Estate of Engelhardt Deceased [2010] SASC 196; In the Estate of Roediger Deceased [1967] SASR 118; Cahill v Rhodes [2002] NSWSC 561; Curley v Duff (1985) 2 NSWLR 716; In the Will of Molloy [1969] 1 NSWR 400; Gair v Bowers (1909) 9 CLR 510; Allan v Morrison [1900] AC 604; Welch v Phillips (1836) 1 Moo PC 299; McCauley v McCauley (1910) 10 CLR 434; Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993); Colvin v Fraser (1929) 2 Hag Ecc 266; In the Estate of Gerard Deceased (2007) 251 LSJS 176; Gordon v Beere [1962] NZLR 257; Sugden v Lord St Leonards (1876) LR 1 PD 154; Finch v Finch (1867) LR 1 P & D 371; Re Estate of Simkin [1950] VLR 341, considered.
In the Estate of LISA KAREN HALL (DECEASED)
[2011] SASC 117Testamentary Causes Jurisdiction
GRAY J:
Introduction
This is an application by summons for an order that probate of the last will and testament of Lisa Karen Hall, the deceased, as contained in a copy, be granted to the applicant, Fred Michael Reiter, that grant being limited until the original will or a more authentic copy of it is brought into and left in the Probate Registry of this Court.
The application was supported by affidavits of the defendant’s solicitor, Tanya Ryan, of 11 May 2011 and 25 November 2010, an affidavit of the applicant of 25 November 2010, affidavits of the defendant’s parents, Kevin Jack Hall and Glenda Margaret Hall, of 25 November 2010 and 24 June 2011 and an affidavit of Trudy Brennan of 27 June 2011. In making the findings recorded in these reasons, I have acted on the affidavit evidence.
The Facts
The deceased died at Daw Park on 9 June 2010 aged 46 years. She died a spinster without issue. Her partner was not a domestic partner under the Family Relationships Act 1975 (SA) at the date of her death.[1] Shortly after the deceased’s death, her partner died unexpectedly.
[1] See Family Relationships Act 1975 (SA) section 11A.
The deceased’s estate comprised real estate at Christies Beach in South Australia, at Grassy in Tasmania and at Naracoopa in Tasmania, valued by the Valuer-General at $250,000.00, $84,000.00 and $25,000.00 respectively; car, caravan, household and personal effects, which were estimated to be worth $3,500.00; shares in companies valued at $28,253.36; and, cash and superannuation assets in the sum of $244,335.40. The liabilities in the deceased’s estate were for funeral expenses, credit card debt and a mortgage, comprising a total of $12,728.17.
On 18 December 2009, the deceased executed a document purporting to be her last will and testament at her solicitor’s office in the presence of her solicitor and Noeleen May Ryan. Both witnesses were present when the deceased signed the will and both attested and signed the will in the deceased’s presence.
Prior to executing the will, the deceased read it in the presence of her solicitor and she appeared to her solicitor to have understood the will and its contents. The deceased informed her solicitor that the will complied with her instructions.
Following execution, the deceased’s solicitor photocopied the will and handed the original and one photocopy to the deceased as well as a letter explaining the importance of keeping the original will safe. The solicitor retained a photocopy of the executed will for her file.
The deceased did not inform her parents or the executors named in the will of the location of her original will. The original will has not been found. The two named executors in the will are Ms Brennan, a close friend of the deceased, and Mr Reiter, Ms Brennan’s husband and the applicant in the present proceeding.
The deceased’s papers and personal items at her home property in Christies Beach have been searched. In particular, the deceased’s parents searched a spare room in that property which contained many boxes of papers and records which were not in any specific order. The deceased’s parents deposed that most of the documents were receipts of paid accounts and other outdated papers. The deceased’s parents destroyed the documents which they believed were redundant, resulting in the majority of the documents being destroyed.
There was a filing cabinet in the spare room which was said to have held the deceased’s more important documents. The deceased’s parents deposed that some of the folders in the cabinet appeared to have been opened or upset in some way. A friend of the deceased had stayed in the house during the deceased’s convalescence. The deceased’s parents deposed that the deceased’s friend may have disturbed the folders. No evidence was forthcoming from the deceased’s friend as, it was said, the deceased’s parents do not know the friend’s name or contact details.
The house of the deceased’s late partner was also searched, inquiries were made at the Commonwealth Bank as to whether the original will of 18 December 2009 was held in a safety deposit box and an advertisement was placed in the Advertiser Newspaper seeking information regarding the missing will. These further searches were also unsuccessful.
A photocopy of the deceased’s will of 18 December 2009 was obtained from the deceased’s solicitor. It is this copy in respect of which a grant of probate is sought in the present proceeding.
On 15 June 2011, the Registrar of Probates, pursuant to rule 77 of the Probate Rules 2004 (SA), referred the summons to me for consideration.
The Application
The summons was brought pursuant to rule 68 of the Probate Rules, which relevantly provides:
68.01An application for an order admitting to proof a nuncupative will made in accordance with section 11 of the Wills Act, 1936, or a will contained in a copy, a completed draft, a reconstruction or other evidence of its contents where the original will is not available, may be made without notice to any other party to the Registrar by summons in the Form No. 33.
…
68.02The application shall be supported by an affidavit setting out the grounds of the application and by such evidence on affidavit as the applicant can adduce as to -
(a) the due execution of the will;
(b) its existence after the death of the testator (or if the will cannot be found at the testator's death such evidence as shall rebut a presumption of its revocation by the testator); and
(c) the accuracy of the copy or other evidence of the contents of the will;
together with the consents in writing to the application given by all persons who may be prejudiced by the grant:
Provided that if a person who is prejudiced by the application is not sui juris or cannot be ascertained or found, or if the Registrar is satisfied that in the circumstances it is just and expedient to do so, the Registrar may dispense with such consent.
Missing wills has been the subject of much judicial commentary. The following considerations for admission of a copy of a missing will to probate have been conveniently extracted from that commentary:
·that the original will existed;[2]
·that the original will was duly executed;[3] or, if the original will does not fulfil the formalities required by legislation, that it satisfies the legislative requirements allowing it, as an informal will, to be admitted to probate;[4]
·that there is evidence of the terms of the original will;[5]
·that the copy will is an accurate and complete copy of the original will;[6]
·that thorough searches have been conducted to find the original will,[7] including publishing advertisements regarding the missing original will;[8]
·that the original will revoked all pre-existing wills;[9]
·the circumstances surrounding the absence of the original will;[10]
·that all persons prejudiced by the application, if it is granted, have consented to the application and are sui juris;[11] and
·that the presumption of revocation does not arise or has been rebutted.[12]
[2] In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; In the Estate of Roediger Deceased [1967] SASR 118, 120; Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 718; In the Will of Molloy [1969] 1 NSWR 400.
[3] Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 719; In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; In the Estate of Roediger Deceased [1967] SASR 118, 120; Gair v Bowers (1909) 9 CLR 510.
[4] See for example, section 12(2) of the Wills Act 1936 (SA); see also, Cahill v Rhodes [2002] NSWSC 561, [53]-[55].
[5] Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 719.
[6] In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; In the Estate of Roediger Deceased [1967] SASR 118, 120.
[7] In the Estate of Engelhardt Deceased [2010] SASC 196, [20].
[8] In the Estate of Roediger Deceased [1967] SASR 118, 120.
[9] Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 718-719.
[10] In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; In the Estate of Roediger Deceased [1967] SASR 118, 120.
[11] In the Estate of Engelhardt Deceased [2010] SASC 196, [20]; In the Estate of Roediger Deceased [1967] SASR 118, 120.
[12] Cahill v Rhodes [2002] NSWSC 561, [55]; Curley v Duff (1985) 2 NSWLR 716, 719; Allan v Morrison [1900] AC 604. I return to the presumption of revocation and its implications later in these reasons.
In the within proceeding, there is evidence from the deceased’s solicitor who was one of the attesting witnesses to the will of 18 December 2009 that the execution of the will complied with all of the requirements in section 8 of the Wills Act 1936 (SA).[13] The solicitor also provided evidence that the copy will, the subject of the present application, was retained on the file for the deceased and was not removed or tampered with. In light of this evidence, I am satisfied that the original will existed, that the copy will sought to be admitted to probate is a complete and accurate copy of the original will, that there is evidence of the terms of the original will and that the original will was duly executed. Further, no issue arises as to the testamentary capacity of the deceased at the time of execution of the will.
[13] Section 8 of the Wills Act 1936 (SA) provides:
Subject to this Act, no will is valid unless it is in writing and executed in the following manner:
(a)it must be signed by the testator or by some other person in the testator's presence and by the testator's direction; and
(b) it must appear, on the face of the will or otherwise, that the testator intended by the signature to give effect to the will; and
(c) the signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d)the witnesses must attest and sign the will (but no form of attestation is necessary); and
(e) the signatures of the witnesses must be made or acknowledged in the presence of the testator (but not necessarily in the presence of each other).
I am also satisfied that all persons prejudiced by the application, if it is granted, have consented to it and are sui juris as the only persons prejudiced are the deceased’s parents who both meet these requirements. Further, I am of the view that the deceased’s will of 18 December 2009 revoked any pre-existing wills as it contained a revocation clause. In this respect, it is worth noting that there nothing before the Court that suggests that the deceased executed any wills prior to that of 18 December 2009.
As earlier set out, extensive searches have been undertaken. I am of the view that these searches were sufficiently thorough and that the original will cannot be found.
The consideration which I now turn to is the presumption of revocation. The presumption of revocation was described by Lord Wensleydale in Welch v Phillips in the following terms:[14]
…if a Will, traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and that presumption must have effect, unless there is sufficient evidence to repel it. …
[14] Welch v Phillips (1836) 1 Moo PC 299, 302 cited by Griffiths CJ and O’Connor J in the High Court in McCauley v McCauley (1910) 10 CLR 434, 438, 446.
In the present proceeding, there is evidence that the deceased’s solicitor handed the original will to the deceased after it was executed on 18 December 2009. There is no evidence which suggests that the deceased parted with possession of the will after that time. Accordingly, the presumption of revocation arises. However, the presumption of revocation is a presumption of fact, which may be rebutted by appropriate evidence.[15] It is the applicant who has the onus of rebutting the presumption.[16] Further, when determining if the presumption has been rebutted, the Court is “to consider the whole of the facts together, and draw what inference should be drawn from the totality of the evidence”.[17]
[15] Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993); see also, Colvin v Fraser (1929) 2 Hag Ecc 266; Welch v Phillips (1836) 1 Moo PC 299; In the Estate of Gerard Deceased (2007) 251 LSJS 176, [32].
[16] Welch v Phillips (1836) 1 Moo PC 299, 302; In the Estate of Gerard Deceased (2007) 251 LSJS 176, [34]; see eg, Allan v Morrison [1900] AC 604.
[17] Gordon v Beere [1962] NZLR 257, 266.
One factor which is commonly considered when determining whether the presumption of revocation has been rebutted is the character of the testator’s custody over the will.[18] In the present proceeding, consideration of this factor is of little assistance as there is no evidence as to the means by which the deceased stored the will of 18 December 2009.
[18] Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993) citing Sugden v Lord St Leonards (1876) LR 1 PD 154; Allan v Morrison [1900] AC 604; McCauley v McCauley (1910) 10 CLR 434.
Another factor which is commonly considered is whether the will makes a careful and complete disposition of the testator’s property. Campbell J in Cahill v Rhodes, drawing on the earlier decisions in Sugden v Lord St Leonards[19] and Finch v Finch,[20] relevantly observed:[21]
What Sugden v Lord St Leonards, and Finch v Finch, show is that if a testator has made a Will which makes a careful and complete disposition of his property, and an examination of the circumstances relevant to the Deceased's testamentary intentions between the time of the making of that Will and the time of his death does not reveal anything which shows that the testator had any reason to revoke the Will by destroying it, the strength of the presumption is weakened to such an extent that it is overcome. This is no more than a particular application of how the factual presumption can be overcome by circumstantial evidence which shows, on the balance of probabilities, that, even though the Will is missing at the testator's death, it is more likely than not that the reason for it being missing is something other than that the testator destroyed it with the intention of revoking it.
[19] Sugden v Lord St Leonards (1876) LR 1 PD 154.
[20] Finch v Finch (1867) LR 1 P & D 371.
[21] Cahill v Rhodes [2002] NSWSC 561, [68]; see also, Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993).
In the present proceeding, the deceased’s will makes a careful and complete disposition of her property. It relevantly provides:
3I GIVE DEVISE AND BEQUEATH the following:-
(a) my caravan my dog “Sky” and my vacant block of land at Naracoopa King Island in the State of Tasmania to my partner CHRISTOPHER JOHN ROLL-
(b) all my surfing gear and equipment to my friend LEANNE BISHOP …
(c) my red utility motor car to RAYMOND who is the neighbour of my said partner Christopher John Roll-
(d) my silver dolphin necklace and anklet to CELENA REITER-
(e) my pearl necklace and earrings to my mother GLENDA MARGARET HALL-
(f) the balance of my jewellery watches and personal effects to my mother the said GLENDA MARGARET HALL to retain or share as she wishes.
4I DIRECT my Trustees to sell my house property at … Christies Beach in the State of South Australia and to distribute the net sale proceeds to ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS [SA] INCORPORATED ANIMAL WELFARE LEAGUE OF SA INCORPORATED WORLD SOCIETY FOR PROTECTION OF ANIMALS THE HUMANE SOCIETY GUIDE DOGS FOR THE BLIND [SA DIVISION] HAHNDORF INTERIM ANIMAL SHELTER INCORPORATED WHALE AND DOLPHIN CONSERVATION SOCIETY and WORLDWIDE FUND FOR NATURE in equal shares AND I DECLARE that the receipt of an authorised officer of the respective organisations shall be full and sufficient discharge for my Trustees.
5I DIRECT my Trustees to hold my house property at … Grassy King Island aforesaid as follows:-
(a) as to one-half share thereof for my brother GREGORY JACK HALL-
(b) and as to the remaining one-half share thereof for my sister MIRANDA JANINE GORDON and her husband DAVID GORDON in equal shares or for the survivor of them-
AND I DIRECT that on the failure of either of the shares in my said house property the failed share shall be added to the other share.
6I DIRECT my Trustees to pay the sum of $5,000.00 [Five Thousand Dollars] to each of them my nieces RENEE HALL TAYLA GORDON BRONTE HALL SACHA HALL BELLA HALL and GREER HALL my greatniece TAMEEKA HALL and my greatnephew JACK HALL who shall survive me for their own use and benefit but preferably applied towards their education or personal advancement AND I FURTHER DIRECT my Trustees to pay the additional sum of $5,000.00 [Five Thousand Dollars] to a charity chosen by each of my said nieces greatniece and greatnephew as I would like to instil in them the importance of giving to others.
7I GIVE the balance of my real and personal estate wherever it may be located to my Trustees upon trust to pay all my debts funeral and testamentary expenses (including any death duties and capital gains taxes for which my estate is or may become liable) and the legacies bequeathed above AND I DIRECT that my Trustees shall hold the residue of my estate for my parents KEVIN JACK HALL and the said GLENDA MARGARET HALL in equal shares or for the survivor of them absolutely and if neither survive me then for such of them my said nieces RENEE HALL TAYLA GORDON BRONTE HALL SACHA HALL BELLA HALL and GREER HALL my said greatniece TAMEEKA HALL and my said greatnephew JACK HALL as shall survive me and shall have attained or shall attain thirty years of age and if more than one in equal shares absolutely.
There is no evidence which indicates that the deceased had revoked or that she wished to revoke her will. In fact, there is evidence to the contrary, in particular, that provided by Ms Brennan.
Ms Brennan was a close friend of the deceased from the early 1970s until the time of the deceased’s death. In about October 2009, the deceased informed Ms Brennan that her condition could not be cured and asked Ms Brennan to act as an executor of her will. She informed Ms Brennan that she trusted Ms Brennan to carry out her wishes. Ms Brennan agreed to act as an executor of the will. Ms Brennan’s husband, the applicant in the present proceeding, also agreed to act as an executor.
Ms Brennan deposed that the deceased informed her that she was of the view that people should not “profit” from another person’s death and that she intended to leave the bulk of her estate to charity. It is evident from the terms of the will set out above that the deceased’s most significant asset, her home property at Christies Beach, was left to several charities.
Just prior to Christmas in 2009, Ms Brennan received a copy of the deceased’s will in the mail. In January 2010, Ms Brennan informed the deceased that she had received the will and that she was glad that the deceased had sorted out her will. Ms Brennan discussed aspects of the will with the deceased. During this discussion, Ms Brennan deposed that the deceased clearly indicated that she was happy with the contents of her will.
In about March 2010, Ms Brennan visited the deceased in hospital and again discussed the will. Ms Brennan asked the deceased if she was still happy with everything that was in her will and offered to contact the deceased’s solicitor if the deceased wanted any changes made. The deceased informed Ms Brennan that she was “happy with it” and did not want to make any changes.
About four weeks prior to the deceased’s death, Ms Brennan asked the deceased if she had documented details of her assets and bank accounts. The deceased informed Ms Brennan that she had written all of her express wishes in a notebook. The deceased described the physical appearance and the location of the notebook to Ms Brennan. She informed Ms Brennan that in her notebook, she had set out the individual recipients of her property on her death and had included her wishes as to the arrangements for her funeral. The deceased said “everything you will need to know is in the book”. The deceased’s parents deposed that she also informed them that everything they needed to know could be found in her notebook.
The notebook included a list of the deceased’s “wishes” regarding who is to receive certain items of the deceased’s property, a list of funeral invitees, a list entitled “funeral plans” and a list entitled “legals”. The list entitled “legals” contained, inter alia, the names of the executors of the deceased’s will and the name of the deceased’s solicitor. It also contained instructions not to resuscitate the deceased and not to donate her organs. The “wishes” section of the notebook relevantly provided:[22]
[22] The contents of the notebook were handwritten. Strikethrough appears in original.
Lisa Hall – WILL 23/11/09
Wishes
Chris Roll
- Caravan
- Block of land on King Island at Naracoopa
- My dog Sky
Leeanne Bishop (Trainbuddy) (friend)
- My surfing paraphernalia collection
Renee Hall (niece)-My jewellery (except ring that Chris gave me – that goes with me)Miranda + David Gordon (1/2) & Greg Hall (1/2) (sister & brother-in-law and brother)
-Equal share of sale of house on King Island – … Grassy
PTO
Raymond (Chris Roll’s next door neighbour)
- my red ute
Charities
RSPCA, WSPA,
Greenpeace, Humane Society Animal Welfare League, Guide Dogs for the Blind, Hahndorf Interim Animal Shelter Inc. (including PATS HELP Inc) Whale & Dolphin Conservation Society WWF (Worldwide Fund for Nature)- Equal share of sale of house at … Christies Beach (valued approx $250,000 – house)
Renee Hall, Tameeka & Jack Hall Bronte, Sacha, Bella, Greer Hall Tayla Gordon
$10,000 each. To be given as $5,000 towards their favourite charity. Ideally, the $5,000 cash to go toward their education or personal advancement.
Mum + Dad
- My eternal heartfelt thanks and gratitude
fthat they chose me to be part of their life. I feel so lucky and blessed to have had them as my parents, role models and best friends. Their love & support during my bad times was overwhelming- Mum & dad – “thanks for signing the contract”!
- Also, any monies from 2 bank accounts – Streamline & Cash Mgt Trust @ C/Wealth Bank.
- Also, any work entitlements from payroll, super (EquipSuper – 2 accounts), death & disability policy, Origin & Telstra shares
- My jewellery collection to be divided as they see fit between Mum, Miranda, Renee, Trudy & Janet.
- My dinner set (their engagement present to be distributed as they want + TV table (rattan?)
CELENA REITER TO GET MY DOLPHIN NECKLACES + ANKLET
MUM TO GET PEARL NECKLACE & EARRINGS CHRIS GAVE ME
[Original emphasis.]
It is evident that the deceased’s will of 18 December 2009 was in substantially similar terms to the “wishes” section of the notebook. It may be inferred that the deceased was content with the terms of her will of 18 December 2009 at least until four weeks prior to her death which was when she made the statements about the notebook to Ms Brennan. Further, a few days prior to the deceased’s death, Ms Brennan assured the deceased that she would make sure all of the deceased’s wishes would be carried out. Ms Brennan deposed that, in response, the deceased thanked her. Ms Brennan further deposed that at no time did the deceased make any mention that she had changed her mind in any way about what she wanted to occur after she died.
As earlier mentioned, I am of the view that the deceased made a complete and careful disposition of her property in her will of 18 December 2009. I am also of the view that the deceased’s testamentary intentions did not change between 18 December 2009 and the date of her death. Accordingly, the circumstantial evidence establishes, on the balance of probabilities, that, even though the will of 18 December 2009 cannot be found, it is more likely than not that the reason for it being missing is something other than that the deceased destroyed it with the intention of revoking it. In my view, the most likely explanation for the missing will is that it was inadvertently discarded by the deceased’s parents when they were sorting through the documents in the spare room at the deceased’s home property at Christies Beach. Another possible explanation is that the will was discarded by the unnamed friend of the deceased. It is settled that destruction of a will by someone other than the testator without the knowledge and consent of the testator does not revoke the will.[23]
[23] See for example, Re Estate of Simkin [1950] VLR 341, 342.
I am satisfied that there is sufficiently strong evidence to rebut the presumption of revocation. Accordingly, the present application relevantly satisfies the considerations extracted earlier from judicial commentary relating to the admission to probate of a copy of a missing will. In those circumstances, I am of the view that it is appropriate to make the order sought.
Conclusion
I am satisfied that the copy will the subject of this application is a complete and accurate copy of the last will of the deceased and that the original will existed, was duly executed and revoked any previous wills. Further, there is evidence of the terms of the original will and all persons prejudiced by the present application have consented to it and are sui juris. Upon consideration of the evidence as a whole, I am satisfied that there is a higher degree of probability that the will was lost, rather than destroyed by the deceased with the intention of revoking it. Accordingly, I am satisfied that the presumption of revocation has been rebutted.
I make an order that probate of the last will and testament of Lisa Karen Hall executed on 18 December 2009, as contained in a copy, be granted to Fred Michael Rieter, limited until the original will or a more authentic copy of it is brought into and left in the Probate Registry of this Court.
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