Re Moschoudis

Case •

[2016] VSC 139

•

8 April 2016
IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PROBATE LIST

S PRB 2015 15743

GEORGE JASON MOSCHOUDIS & PAUL ANTHONY WESLEY-SMITH Plaintiffs
v
CONSTANTINE SOULTANAKIS Caveator

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JUDGE:

McMillan J

WHERE HELD:

Melbourne

DATE OF HEARING:

12 February 2016

DATE OF JUDGMENT:

8 April 2016

CASE MAY BE CITED AS:

Re Moschoudis

MEDIUM NEUTRAL CITATION:

[2016] VSC 139

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SUCCESSION — Where testator’s copy will found amongst his papers after his death —Where original will last seen in the possession of the testator and not found — Deceased’s children seek a grant of representation on intestacy — Beneficiary under copy will objects to a grant on intestacy on basis that presumption of revocation ‘animo revocandi’ is rebutted — Onus on beneficiary to rebut presumption — Welch v Phillips (1836) 12 ER 828 — Whiteley v Clune (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993) — Cahill v Rhodes [2002] NSWSC 561.

PRACTICE AND PROCEDURE — Where plaintiffs seek summary judgment — Whether caveator has no real prospect of success — Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 — Mandie v Memart Nominees Pty Ltd [2016] VSCA 4 – Civil Procedure Act 2010 (Vic), s 63(1).

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APPEARANCES:

 Counsel Solicitors
For the Plaintiff Mr W F Gillies R B Legal Pty Ltd (as agents for Jensens Solicitors)
For the Caveator Ms C H Sparke QC Williams & Lay Lawyers

HER HONOUR:

Introduction

  1. John Moschoudis died on or about 2 March 2015, aged 76 years (‘the deceased’).  He was survived by his two sons: the first plaintiff and Theodore Marc Moschoudis.

  1. By originating motion filed 15 October 2015, the plaintiffs seek a grant of letters of administration on intestacy of the deceased’s estate.[1] 

    [1]The application for the grant will be amended as the second plaintiff is not the next-of-kin of the deceased.

  1. On 11 February 2016, the deceased’s nephew (‘the caveator’) filed a caveat objecting to a grant on intestacy on the grounds that the deceased left a copy will dated 14 January 2003, the original of which can no longer be found.  The copy 2003 will appoints the caveator’s father as the executor of the deceased’s estate and leaves part of his estate to the caveator. 

  1. Where a will, last traced to the possession of the testator, cannot be found at the time of the testator’s death after all reasonable searches and inquiries, it is presumed to have been destroyed by the testator with the intention of revoking it, animo revocandi.[2] 

    [2]Welch v Phillips (1836) 1 Moo PC 299; (1836) 12 ER 828 (Parke B) (‘Welch v Phillips’); Colvin v Fraser (1829) 2 Hag Ecc 266; (1829) 162 ER 856 (Sir John Nicholl) (‘Colvin v Fraser’); Cahill v Rhodes [2002] NSWSC 561 (10 July 2002) (‘Cahill v Rhodes’); McCauley v McCauley (1910) 10 CLR 434, 438 (Griffith CJ) (‘McCauley’); Re Riordan [1961] VR 271; Whiteley v Clune (No 2) the estate of Brett Whiteley (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993) 27 (‘Whiteley v Clune’); Re Warren (deceased) [2014] QSC 101 (21 May 2014) [11] (Peter Lyons J); see also John G Ross Martyn and Nicholas Caddick (eds), Williams, Mortimer and Sunnucks on executors, administrators and probate (Sweet & Maxwell, 20th ed, 2013) 242 [14–28]; Alun A Preece, Lee’s Manual of Queensland Succession Law (Lawbook Co, 7th ed, 2013) [5.200].

  1. By letter dated 18 May 2015, the solicitors for the caveator informed the solicitors for the plaintiffs that in the event of an application for a grant of representation on intestacy being filed, the caveator would refer the issue of the copy 2003 will being a true copy of the original to the Court for determination.  In other words, the named executor in the copy 2003 will would file an application for a grant of representation of the copy 2003 will on the basis that the original was lost and not revoked by the deceased.

  1. The caveator contends that the presumption of revocation of the original 2003 will is rebutted because:

(a)the deceased was obsessive in retaining all of his documentation; and

(b)at the date of his death, the deceased kept the copy 2003 will in a separate folder and filed in a box with recent tax returns.  (The copy 2003 will was located by a friend of the caveator’s daughter in the deceased’s bedroom at his home in Glen Huntly.[3])

[3]Caveator’s Particulars of Grounds of Objection dated 11 February 2016, paragraphs 1(c) and 2.

  1. Pursuant to s 63 of the Civil Procedure Act 2010 (‘CP Act’), the plaintiffs seek summary judgment and orders that the caveat and the proceeding based upon the caveat be dismissed.[4]

    [4] On 12 February 2016, the plaintiffs sought leave to issue a summons seeking orders, consistently with s 63(1) of the CP Act, that the caveat and the proceedings based upon the caveat be dismissed, and the caveator pay the plaintiffs’ costs of and incidental to the application and the proceedings generally. Leave was granted and the summons was subsequently filed nunc pro tunc on 15 February 2016.

    Applicable principles

    Application for summary judgment under the CP Act

  2. Pursuant to s 63(1) of the CP Act, the court may give summary judgment in a civil proceeding if satisfied that a claim has no real prospect of success. In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd, Warren CJ and Nettle JA (as his Honour then was) explained the of the meaning of the phrase ‘no real prospect of success’ as follows:

    … the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success; that the ‘real chance of success’ test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test; and that, as the law is at present understood, the real chance of success test permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent’s case is not ‘hopeless’ or ‘bound to fail’, it does not have a real prospect of succeeding.[5]

    In the more recent decision of Mandie v Memart Nominees Pty Ltd, the Court of Appeal referred to various authorities and canvassed the different language used in those authorities to explain what the test ‘no real prospect of success’ means as it appears in s 63 of the CP Act.[6]   In short, the concept has been said to apply to claims that are ‘fanciful’[7], ‘futile’[8] or ‘unarguable’.[9]  Those descriptions were treated as being synonymous with the ‘no real prospect’ test, and with each other, by the Court of Appeal in Mandie.[10]

    Probate principles concerning the presumption of revocation animo revocandi

    [5]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, 39 [29] (‘Lysaght’).

    [6]Mandie v Memart Nominees Pty Ltd [2016] VSCA 4 (5 February 2016) [43]–[47] (Kyrou, Ferguson and McLeish JJA) (‘Mandie’).

    [7]Lysaght (2013) 42 VR 27, 39 [29].

    [8]Utility Services Corporation Ltd v SPI Electricity Pty Ltd (2012) 35 VR 628, 641 [48] (Dixon AJA).

    [9]Ibid 629 [1] (Bongiorno JA), 630 [8] (Beach AJA).

    [10]Mandie [2016] VSCA 4 (5 February 2016) [47].

  3. The principles to be applied in cases concerning a probate application with respect to a lost will were set out in Cahill v Rhodes, where Campbell J stated as follows:

    … it must be established that there actually was a will, or a document purporting to embody the testamentary intentions of a deceased person; second, it must be shown that that document revoked all previous wills, third, the presumption that when a will is not produced it has been destroyed must be overcome, fourth, there must be evidence of its terms, and fifth, there must be either evidence of due execution or that the deceased person intended the document to constitute his or her will.[11]

    [11]         Cahill v Rhodes [2002] NSWSC 561 (10 July 2002) [55]. Also, pursuant to s 12(2)(f) of the Wills Act 1997, a will may be revoked, inter alia, by the testator, or some person in his or her presence and by his or her direction, burning, tearing or otherwise destroying the will with the intention of revoking it.

  4. Where a will or codicil is last traced into a testator’s possession and the original document cannot be found at the time of his death after all reasonable searches and inquiries, the presumption arises that the testator has destroyed the document with the intention of revoking it, animo revocandi, unless there is sufficient evidence to rebut any presumption.[12]   Before the presumption arises, the Court must be satisfied that the will was in the testator’s repositories or elsewhere. 

    [12]Cahill v Rhodes [2002] NSWSC 561 (10 July 2002) [58], citing Colvin v Fraser and Welch v Phillips.

  5. The position as to the presumption of revocation is summarised by Campbell J in Cahill v Rhodes in the following four points:

    The present position would now seem to be as follows: - 1. although, where a Will is traced into the possession of the testator and is not forthcoming on his death, there is a presumption that he destroyed it animo revocandi, the presumption may be rebutted; 2. the strength of the presumption depends upon the character of the testator's custody over it (Sugden v Lord St Leonards; Allan v Morrison; McCauley v McCauley); 3. 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; Finch v Finch); 4. where a Will is lost or destroyed, and the presumption of destruction, animo revocandi, either, does not arise, or, is rebutted, its contents may be proved by parol evidence. The “rules” laid down in Sugden v Lord St Leonards are as follows: a. the contents of any lost instrument, including a Will, may be proved by secondary evidence; b. written and oral declarations of a testator made before, or after, the execution of the Will are admissible as secondary evidence of its contents; c. the evidence of a single witness, although interested, is admissible to prove the contents if his veracity and credibility are unimpeached; d. Probate may be granted of so much of the contents as may be proved, even though proof is not available of the entirety. It should, however, be noted that, at least insofar as (b) and (d) are concerned, Sugden v Lord St Leonards, although not overruled, has not escaped criticism (Woodward v Goulstone; Atkinson v Morris) so that it is improbable that the “rules” will be extended.”[13]


    [13]Ibid (citations omitted).

  6. Of the second point set out by Campbell J, being the character of the testator’s custody of the will, his Honour explained that this:

    … refers to facts concerning the physical arrangements the testator has for security of the Will – for instance, whether it is kept in a place which is locked or unlocked, if kept in a locked place, how many keys there are and who has them or has access to them, or whether the testator keeps his will in his coat pocket – who knows of the location of the Will, whether anyone besides the testator has access to the Will, and the extent to which the testator has been careful in looking after his Will.  All these are matters which can affect the likelihood of the Will being missing because the testator himself destroyed it, or because there is some other explanation for its absence, like that someone else removed it, or that the testator has merely lost it.[14]

    [14]Ibid [59].

  7. The third point set out by Campbell J was explained by his Honour when he rejected a submission that the use of the word ‘probable’ required the court to establish a ‘probability’ of destruction in order for the presumption to apply.  Of this third point, his Honour said, referring to Powell J’s decision in Whiteley v Clune:

    I do not accept that that submission applies Powell J’s third proposition correctly. If the submission were correct, then, every time a testator had made a complete disposition of his estate, and the will could not be found upon his death, the onus would for practical purposes be upon someone who opposed the granting of probate of that will to demonstrate that it was probable that it had been destroyed with the intention of revoking it. That would, in a very large proportion of cases, do away with the presumption entirely. That is not the law.[15]

    [15]Ibid [61].

  8. His Honour said that the phrase ‘probable destruction’ is not to be taken to suggest that anything other than the ordinary standard of proof appropriate in civil cases should be applied to the question of whether the will has been destroyed with an intention of revoking it, and that this conclusion is consistent with the authorities, including Whiteley v Clune, to the effect that the appropriate standard to apply is that applicable in ordinary civil cases, with the evidence required to rebut the presumption being ‘clear and convincing’.[16]

    [16]Ibid [56], [58], citing Re Ralston (deceased) (Unreported, Supreme Court of New South Wales, Hodgson J, 12 September 1996) 8-9; Re Wippermann (deceased); Wissler v Wippermann [1953] 1 All ER 764; [1953] 2 WLR 706; W J Atkinson, W J Pickering and J E N Russell (eds), Tristram and Coote’s probate practice (Butterworths, 21st ed, 1960) 641; Herbert Clifford Mortimer, J H G Sunnucks, John G Ross Martyn and K M Garnett (eds), Williams, Mortimer and Sunnucks on executors, administrators and probate (Stevens, 16th ed, 1982) 187, 249; Re Riordan [1961] VR 271, 282 (Sholl J); Whiteley v Clune (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993) 26-27.

  9. Also in relation to the third point, Campbell J considered the strength of the presumption of revocation and considered the authorities of Sugden v Lord St Leonards and Finch v Finch, concluding that:

    What Sugden v Lord St Leonards, and Finch v Finch, show is that if the testator has made a will which makes a careful and complete disposition of his property, and an examination of the circumstances relevant to the deceased’s testamentary intentions between the time of the making of that will and the time of his death does not reveal anything which shows that the testator had any reason to revoke the will by destroying it, the strength of the presumption is weakened to such an extent that it is overcome.  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. [17]

    [17]Ibid [68] (citations omitted).

  10. In McCauley vMcCauley, Griffith CJ stated that ‘if the probabilities of loss or destruction are equal, the presumption of destruction must prevail’.[18]  Rebutting the presumption does not require the caveator to show how the copy will came to be lost or destroyed; rather, he must establish that the presumption does not apply in the circumstances.[19]

    [18]McCauley (1910) 10 CLR 434, 440.

    [19]Lippe v Hedderwick (1922) 31 CLR 148.

  11. The presumption of revocation is a presumption of fact that may be rebutted by appropriate evidence.[20]  The onus of rebutting the presumption falls on the caveator as he asserts that the original 2003 will is lost and that the named executor in the copy 2003 will intends to have the copy will admitted to probate.[21]

    [20]Whiteley v Clune (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993) 27; Colvin v Fraser (1829) 2 Hag Ecc 266; (1829) 162 ER 856 (Sir John Nicholl); Welch v Phillips (1836) 1 Moo PC 299; (1836) 12 ER 828 (Parke B).

    [21]          Re Gerard (deceased) (2007) 1 ASTLR 206; (2007) 251 LSJS 176; [2007] SASC 362 (10 October 2007) [34] (Gray J), citing Allan v Morrison [1900] AC 604 and Re Molloy [1969] 1 NSWR 400.

    The evidence

  12. In his affidavit sworn 11 February 2016, the caveator deposed that he, his sister and his parents had a close relationship with the deceased, with the deceased being the caveator’s godfather and best man at his wedding.  After the deceased’s divorce in 1983, the caveator’s family maintained close contact with him.  The deceased lived at his home in Glen Huntly from 1991 until his death.  The caveator visited him regularly to carry out maintenance work at his Glen Huntly home, such as mowing the lawn. 

  13. The deceased ceased coming to family functions after 2012 as a result of his failing health.  In the twelve months before his death, the deceased had cancer, heart and lung problems.  He became a recluse and was withdrawn.  The caveator said that during this time the deceased did not say anything about receiving assistance from his two sons and the caveator was aware of only two instances of contact between the deceased and his sons, being in 2003 and 2014.

  14. The first plaintiff disputed the caveator’s view of the deceased’s relationship with him and his brother.  He deposed that he and his brother both lived interstate but had been at the deceased’s home on many occasions during the deceased’s lifetime.  The first plaintiff had maintained regular telephone contact with the deceased after visiting him approximately five years ago.

  15. On 2 March 2015, the caveator attended the deceased’s house, as he said it was common for him to do.  He knocked on the front and back doors of the deceased’s home but did not receive an answer.  He then contacted the police who, upon forcing entry into the deceased’s house, discovered the deceased’s body.  

  16. The next morning, the caveator returned to the deceased’s house with his wife and daughter to search and clean it.  According to the caveator, it was apparent from the contents of the house and the fact that it was in a very untidy and messy state that the deceased was a hoarder.  They were occupied in cleaning the house for the whole of that day.

  17. During the clean-up, the caveator found a mobile phone and a handwritten note with a telephone number and the name ‘George’.  The caveator called the number and the first plaintiff answered the phone.  This was the first time the first plaintiff heard of his father’s death.  The caveator did not have the contact details of the deceased’s other son.

  18. On the next day, 4 March 2015, the caveator, his wife and his daughter returned to the deceased’s home and continued their search and clean-up of the home.  They were joined in the afternoon by a friend of the caveator’s daughter, Chris Gaunt.  The party of four found boxes that contained the financial and personal records of the deceased, stacked either near the back door or in the deceased’s bedroom.  The boxes were filled with papers for the past ten years filed in categories, in alphabetical and date order.  They proceeded to examine the content of the boxes.  During this process, Mr Gaunt discovered the 2003 copy will in a folder in a box in the bedroom that also contained the deceased’s recent tax returns.  The caveator deposed that they had examined every paper or envelope in the house and there were no other papers, envelopes or records of any description in the deceased’s house.  Sometime on that day, after locating the 2003 copy will, the caveator contacted the first plaintiff to arrange a meeting with him so he could give him a copy of the 2003 copy will. 

  19. Before they left the deceased’s home that day, the caveator and his three companions decided to take certain things from the home for safekeeping, including many of the deceased’s documents, stamp albums and certain paintings.  There eventuated a dispute between the parties in this proceeding as to what precisely the caveator and the others had taken from the deceased’s home and their authority to do so.  That dispute is not relevant to the issues now before the Court, save to note that on 10 February 2016 orders were made by the Court that all items taken from the deceased’s home by the caveator and the others were to be returned to the plaintiffs’ solicitors, together with a list of the items taken by them.

  1. On 5 March 2015, the caveator met the first plaintiff and gave him a copy of the 2003 copy will.  Neither the caveator nor any of his three companions have entered the deceased’s house since 5 March 2015.

  2. The first plaintiff deposed that he and his partner went to the deceased’s house after he received a telephone call from the caveator informing him of his father’s death. On that first occasion, neither he nor his partner found the letter from Mr Rowan, solicitor, referred to at [29] below.

  3. The next time the first plaintiff went to the deceased’s home was on the morning of the funeral, held in the afternoon of 27 March 2015.  The first plaintiff, his brother and his brother’s wife went to the deceased’s home.  When they entered the house, it was immediately apparent to them that, despite what the caveator has said concerning their clean-up of the house, the house was extremely messy, dirty and untidy.  Photographs of the state of the house exhibited to the affidavit of Kirsten Miller sworn 12 February 2016 confirm this state of affairs. 

  4. In the course of their searches, the first plaintiff’s sister-in-law found a sealed envelope inside a kitchen cabinet.  The discovery of the envelope was the subject of some contention.  The first plaintiff gave evidence, without objection from the caveator, of the circumstances of the discovery of the envelope, and was cross-examined on the issue.  The first plaintiff said that during their searches on that day when they were each in different rooms, his sister-in-law called his brother and him into the kitchen.  When they entered the kitchen, his sister-in-law was standing in the room holding an envelope and pointing to a cupboard in a kitchen cabinet as the place where she had found it.  The first plaintiff said that when they first went in to the deceased’s home, the doors of the kitchen cabinet were closed.  The envelope was sealed and together they opened the envelope.  It contained a letter dated 18 May 2006 from Mr Andrew Rowan, solicitor, addressed to the deceased.  It was common ground that Mr Rowan was the deceased’s former solicitor.  The letter from Mr Rowan stated that he had enclosed:

    (a)the original will executed by the deceased on 14 January 2003; and

    (b)sundry Australia Post receipts and correspondence with the Salvation Army.

  5. Inside the envelope they found the sundry receipts and correspondence together with a copy will of the deceased executed in 1985 but not the original 2003 will.  Attached to Mr Rowan’s letter was a copy of his letter which, in accordance with the letter’s instructions, was for the deceased to ‘acknowledge receipt by signing and dating copy letter attached’.  This copy letter had been signed and dated ‘18/5/2006’ by the deceased.  The original 1985 will was located a few days later by the plaintiffs’ solicitors at the offices of the solicitors who had prepared that will.

  6. The first plaintiff, his brother and his brother’s wife then attended the deceased’s funeral held at around 2pm that day.  Neither the caveator nor his family attended the deceased’s funeral.

  7. On 30 March 2015, the caveator’s solicitors, Williams & Lay, informed the plaintiffs’ solicitors that they acted on behalf of the caveator’s family.  In response, the plaintiffs’ solicitors informed Williams & Lay, amongst other things, that the deceased had updated his will, that they were in the process of locating the updated will, that they would conduct a search to see if it was at the deceased’s property and they sought confirmation as to whether the clients of Williams & Lay were in possession of the original 2003 will. 

  8. The plaintiffs’ solicitors sent a further letter dated 16 April 2015 again asking Williams & Lay whether they had the original 2003 will, and informing them of the location of the letter from Mr Rowan and that the plaintiffs would apply for letters of administration of the deceased’s estate when they received a death certificate for the deceased. 

  9. The plaintiffs’ solicitors sent a further letter dated 23 April 2015 to Williams & Lay asking if they had the original 2003 will and requesting contact details for the solicitor and the witnesses to the will.  No reply was received to these requests.

  10. In the meantime, Williams & Lay contacted Mr Rowan, who responded to them by email dated 23 April 2015.  In that email, Mr Rowan stated that he recollected the deceased attended his office after receiving his letter dated 18 May 2006 requesting that the deceased collect the contents of his deed packet held by him.  Mr Rowan believed that the deceased would have signed a receipt for the contents of his deed packet, which contents included the original 2003 will.  He also believed that the closed deed packet and receipt are held in storage and he can check this when he returns from overseas.  Mr Rowan said he had a further recollection that the deceased subsequently telephoned him requesting that he prepare a new will for him.  Mr Rowan did not accept the deceased’s instructions as he was no longer operating a general practice at that time.  He recalled referring him to John Curtain & Associates as he had been referring any clients who contacted his office with such matters to these solicitors.  Mr Rowan has since been informed by Mr Nick Nikolaidou of John Curtain & Associates that the deceased never contacted their office.  Mr Rowan said the deceased expressed reluctance to visit solicitors based in the city, telling Mr Rowan that he might use local solicitors instead.

  11. The plaintiffs’ solicitors did not have Mr Rowan’s contact details and made enquiries through the Law Institute of Victoria.  As a result of those enquiries, the Law Institute sent a letter from the plaintiffs’ solicitors to Mr Rowan. 

  12. By letter dated 26 May 2015 to the plaintiffs’ solicitors, Mr Nick Nikolaidou of John Curtain & Associates responded to their enquiries on behalf of Mr Rowan.  Mr Nikolaidou informed the solicitors that Mr Rowan had located another letter dated 10 May 2006 addressed to the deceased advising him that because Mr Rowan had relocated offices, it was no longer possible for him to hold documents in safe custody and the deceased should advise him where to send his documents.  Mr Rowan then referred to the letter dated 18 May 2006 which acknowledged that the deceased collected the original will on 18 May 2006. 

  13. In respect of the making of the deceased’s 2003 will, Mr Rowan recalled that the deceased contacted him in 2003.  He advised Mr Rowan that he was to undergo a medical procedure and he wanted to prepare a new will urgently.  Mr Rowan accordingly prepared the 2003 will which was signed by the deceased before he underwent his medical procedure. 

  14. Mr Rowan said that he strongly suspects that after the deceased collected the original will from him on 18 May 2006, the deceased contacted a local solicitor to prepare a new will.  Mr Rowan recommended to the plaintiffs’ solicitors that letters be written to local solicitors to enquire about the original 2003 will.  He suggested that the firm like Boothby & Boothby be contacted as he believes he may have mentioned them to the deceased as a suitable firm to draw his will.  He also recommended that the plaintiffs’ solicitor contact Russell Kennedy, a firm that Mr Rowan was previously associated with, as when the deceased initially contacted Mr Rowan about a new will he was also chasing the whereabouts of the title to his property, which was located at Russell Kennedy.  The plaintiffs’ solicitors contacted both firms and neither firm holds a safe custody packet on behalf of the deceased.  

  15. Mr Nick Nikolaidou’s letter also attaches the email from Mr Rowan dated 23 April 2015 sent to Williams & Lay.  Mr Nikolaidou advised the plaintiffs’ solicitors that his letter to them would be sent to Williams & Lay so that both solicitors were fully informed of the exchange of correspondence from Mr Rowan.

  16. The plaintiffs deposed to undertaking extensive searches for the original 2003 will and have not been able to locate it.  By affidavit sworn 2 October 2015 in their application for a grant of representation, the plaintiffs deposed that they had made careful enquiry and search but were unable to find any will of the deceased, save for the original 2003 will which had been traced back to the possession of the deceased but had not been located.  They referred to Mr Rowan’s letter dated 18 May 2006 requesting the deceased acknowledge receipt of the original 2003 will by signing and dating a copy of the letter, and said that this letter acknowledging receipt was signed by the deceased and dated 18 May 2006.

  17. The plaintiffs’ extensive searches for the original 2003 will included contacting 36 firms of solicitors, State Trustees, the Salvation Army and searching the wills index located at the Court.  They also advertised in the Law Institute Journal, the Victorian Government Gazette and the Caulfield Glen Eira Leader newspaper.  In addition, their solicitors sent an email to 35 solicitors in the Glen Huntly area.  None of the searches, emails, telephone calls or advertisements located the original 2003 will, an updated original will or an updated copy will of the deceased.

  18. In his affidavit sworn 11 February 2016, the caveator deposed that contact had been made with 15 firms of solicitors to establish whether they held the original 2003 will.  Each of the firms contacted informed the caveator that they had no record of holding the deceased’s will.

  19. Despite extensive searches and enquiries being made by both the plaintiffs and the caveator, the original of the 2003 copy will has never been found.  The discovery of the envelope containing the letter from Mr Rowan at the deceased’s home puts the last known whereabouts of the original 2003 will in the hands of the deceased as at 18 May 2006. 

    Consideration

  20. The caveator accepts that there was an original 2003 will that revoked all previous wills and that it was duly executed by the deceased.  He also accepts that the original 2003 will can be traced into the hands of the deceased as at 18 May 2006 and that it ‘is not forthcoming on his death’.[22]  The evidence of both the first plaintiff and the caveator establishes that after extensive searches and enquiries the original 2003 will has not be found.

    [22]Cahill v Rhodes [2002] NSWSC 561 (10 July 2002) [58]; Whiteley v Clune (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993) 26-27.

  21. Thus the presumption that the deceased destroyed the original 2003 will with the intention of revoking it animo revocandi arises, unless there is sufficient evidence to rebut it.

  22. The caveator submits that the rebuttal of the presumption of revocation as it arises in respect of the original 2003 will requires a full investigation.  He says that the evidence currently before the Court is such that it could not be concluded that his case had no reasonable prospect of success for a number of reasons.

  23. The first reason relied on by the caveator is that, because the deceased was obsessive in retaining all documentation and he kept the copy 2003 will in an important place, it is unlikely that he would destroy the original 2003 will.  The caveator’s evidence is that the deceased’s financial and personal records for the past ten years were stored and filed in alphabetical and date order in boxes, located at either the back door or in his bedroom.  The copy 2003 will was found in a folder in a box that contained the deceased’s recent tax returns, the box being located in the deceased’s bedroom. 

  24. This reason, in part, refers to the character of the deceased’s custody of the original 2003 will.[23]  The physical arrangements that the deceased had for keeping documents for the past ten years (being 2005 to 2015), at least according to the caveator, was in part an orderly arrangement if they were stored in boxes but various other documents and records were kept there as well.  The storage of the documents was not secure, but simply kept in various rooms in the deceased’s house.  Otherwise, the house was messy and untidy.   

    [23]Cahill v Rhodes [2002] NSWSC 561 (10 July 2002) [59], referred to at [11]-[12] above.

  25. Given the care the deceased took to retain various documents and records and, as contended by the caveator, that he was obsessive in retaining his documentation, it is unlikely that the original 2003 will is lost.  The fact that the original 2003 will was last known to be in the deceased’s possession and has not been found amongst the various documents stored in his house or elsewhere after his death means that, on balance, the presumption that the deceased destroyed the original 2003 will with the intention of revoking it has not been rebutted by the caveator.

  26. The conclusion that the original 2003 will was destroyed by the deceased is supported by the contents of Mr Rowan’s email dated 23 April 2015 and the letter from his solicitors dated 26 May 2015 where Mr Rowan stated that the original 2003 will was prepared by him and executed by the deceased as a matter of urgency before the deceased had a medical procedure and, after collecting it on 18 May 2006, the deceased later requested Mr Rowan to prepare a new will for him. 

  27. The second reason relied on by the caveator was that because the deceased kept the copy 2003 will in his boxes, the original 2003 will would not have been destroyed by him.  This reason is related to the first reason as it relies on the deceased being obsessive in retaining his documentation.  Two copy wills were found in the deceased’s belongings, being copies of the 1985 will and the 2003 will respectively.  Copy wills are usually sent to clients after the execution of an original will.  In the case of the deceased, the original 2003 will was kept in safe keeping by Mr Rowan until it was collected by the deceased on 18 May 2006.  Despite thorough and extensive searches conducted after the death of the deceased, the original 2003 will has not been found.  On balance, given that the deceased collected the original 2003 will and informed Mr Rowan that he wanted a new will, and given the thorough and extensive but ultimately unsuccessful searches for the original 2003 will after the deceased’s death, the evidence again fails to rebut the presumption that the deceased destroyed the original 2003 will animo revocandi. 

  28. The third reason relied on by the caveator was that it would be unlikely that the deceased would destroy his original 2003 will and then do nothing about signing a new will.  As stated above, the deceased did do something about signing a new will in that he requested Mr Rowan to prepare a new will for him.  Mr Rowan was unable to do so but he referred the deceased to other solicitors for this purpose.  The fact that the deceased sought to engage Mr Rowan to prepare a new will for him further supports the presumption that the original 2003 will was destroyed by the deceased. 

  29. The fourth reason relied on by the caveator is that the Court cannot be satisfied that the envelope containing Mr Rowan’s letter and the sundry receipts was in the possession of the deceased when he died because the caveator and his three companions did not find it when they searched the deceased’s house on 3 and 4 March 2015.  This reason is, in reality, a veiled allegation that the first plaintiff somehow destroyed the original 2003 will.

  30. Both the first plaintiff and the caveator refer to the state of the deceased’s house.  It was extremely messy and untidy when the caveator and his three companions went into the house.  The first plaintiff found that the house remained extremely messy and untidy when he went to the house after the caveator, with not much evidence of a clean-up or tidy up, as asserted by the caveator.  The photographs exhibited to the affidavit of Kirsten Miller confirm this state of the house as on the morning of 27 March 2015. 

  31. Whilst the caveator relies on the deceased being obsessive in retaining his documentation in a particular manner and deposes that he and his three companions ‘had examined every paper or envelope in the house and there were no other papers, envelopes or records of any description in the deceased’s house’, in the context of the state of the house, it is a broad statement that carries little in the circumstances.  It is not surprising that the caveator and his three companions missed finding the envelope in the kitchen cabinet when they searched the deceased’s house on 3 and 4 March 2015 as their primary focus was the contents of the deceased’s boxes of documents and the removal of the deceased’s items that were subsequently ordered to be returned to the solicitors for the plaintiffs.

  32. The first plaintiff’s evidence was that the sealed envelope was found in the kitchen cabinet.  The envelope did not contain the copy 2003 will but it did contain the copy 1985 will, Mr Rowan’s letter, the deceased’s signature on Mr Rowan’s copy letter indicating that the deceased had collected the original 2003 will on 18 May 2006 and the sundry receipts. The fact that it was found in the kitchen cabinet and not in the deceased’s boxes of ordered documents suggests that the deceased did not regard the papers as important.  There is no available inference from the evidence to support the caveator’s veiled allegation that the plaintiffs destroyed the original 2003 will.

  33. The final reason relied on by the caveator is that, because the deceased remained on good terms with the children of his brother and because the copy 2003 will makes a careful and complete disposition of the deceased’s property, the circumstances do not point to a probable destruction animo revocandi by the deceased of the original 2003 will.

  34. This final reason refers to the third point set out by Campbell J in Cahill v Rhodes.[24]  As stated by Campbell J, the use of the word ‘probable’ in the context of the presumption of revocation does not require the court to find a probability of destruction in order for the presumption to apply.  If this were so, every time a testator made a complete disposition of his estate and the will could not be found, the onus would be on a party who opposed the granting of probate of that will to show that it was probable that it had been destroyed by the testator with the intention of revoking it.  This would almost do away with the presumption of revocation entirely.[25]  As stated by Campbell J, where a testator has made a will that makes a careful and complete disposition of his property, there must be an examination of the circumstances of the testator’s testamentary intentions between the time of the making of the will and the time of death to establish if there is any reason for the testator to revoke the will by destroying it.[26]  

    [24]Referred to above at [13]-[15].

    [25]Cahill v Rhodes [2002] NSWSC 561 (10 July 2002) [61].

    [26]Ibid [68].

  35. For the purposes of this final reason, I have assumed that the deceased remained on good terms with the children of his brother.  This is despite the fact that none of them attended the deceased’s funeral, which is surprising given that they remained on good terms with the deceased.

  36. However, between the making of the original 2003 will and his death, there were a number of circumstances that establish that the deceased revoked the original 2003 will, aside from his relationship with the caveator and his siblings.  The first is that the original 2003 will was executed by the deceased as a matter of urgency before he was about to undergo a medical procedure.  The second is that after the deceased collected his original 2003 will from Mr Rowan on 18 May 2006, he later asked Mr Rowan to prepare a new will for him and Mr Rowan referred the deceased to other legal firms who could assist him as Mr Rowan no longer prepared wills.  This supports the inference that the deceased wanted to make a new will.  There is also the fact that the deceased kept his documents in his home and despite extensive searches and enquiries, the original 2003 will has not been found.  These circumstances establish that the deceased probably revoked his original 2003 will by destroying it.

    Conclusion

  1. I am satisfied on the balance of probabilities that the original 2003 will was probably destroyed by the deceased during his lifetime, with the intention of revoking it and making a new will.  I am satisfied that the caveator has failed to rebut the presumption of revocation animo revocandi and that his case has no real prospect of success within the meaning of s 63(1) of the CP Act and as applied by Lysaght and the subsequent authorities. 

  2. Accordingly, pursuant to s 63(1) of the CP Act, the caveat and the proceeding based on the caveat is dismissed.

  1. The plaintiffs also seek orders for costs against the caveator.  Failing agreement on the costs, I will hear further submissions from the parties.


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Cahill v Rhodes [2002] NSWSC 561
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