The Estate of Robert Lindley Palfreyman

[2024] TASSC 32

[2024] TASSC 32

COURT:	SUPREME COURT OF TASMANIA
CITATION:	The Estate of Robert Lindley Palfreyman [2024] TASSC 32
PARTIES:	THE ESTATE OF ROBERT LINDLEY PALFREYMAN:
VICKI MARGARET RAYNER
FILE NO:	2677/2022
DELIVERED ON:	1 July 2024
DELIVERED AT:	Hobart
HEARING DATE:	28 February 2024
JUDGMENT OF:	Brett J
CATCHWORDS:

Succession – Making of a will – Testamentary instruments – When lost, mislaid, destroyed or not available – Evidence – Sole beneficiary collected will from solicitors after death of testator – Will lost before application for probate made – Sufficient evidence for probate of lost will.

Aust Dig Succession [1044]

Legislation:

Probate Rules 2017, r54

Wills Act 2008, s8

Cases:

Blake v Knight [1843] 3 Curt 547
Blasutto v Fantin; the Estate of Maria Delfina Blasutto [2000] NSWSC 258
Corbett v Newey and Ors [1998] Ch 58
Curley v Duff [1985] 2 NSWLR 716

McFadyen v Bluett [2017] TASSC 72

REPRESENTATION:

Counsel:

Applicant:  self-represented

Judgment Number:	[2024] TASSC 32
Number of paragraphs:	13

Serial No 32/2024 File No 2677/2022

THE ESTATE OF ROBERT LINDLEY PALFREYMAN

REASONS FOR JUDGMENT BRETT J
1 JULY 2024

1             Robert Lindley Palfreyman died on 13 August 2011. He is survived by the applicant, with whom he was in a significant relationship at the time of his death, his former wife from whom he was divorced in 1980 and three adult children who were then aged 47, 46 and 23 years.

2             The applicant seeks an order that a will executed by Mr Palfreyman on 19 June 2003, and evidenced by a copy annexed to her affidavit, be admitted to proof. The effect of this is that there be a grant of probate in solemn form in respect of the will. The original will is not available because it has been lost. The evidence permits an inference that the will is the last testamentary document executed by the deceased before his death. It is rational on its face and was clearly prepared by a solicitor. The

copy provided, which is a photocopy of the executed will taken from the solicitor’s file, demonstrates

that it has been properly executed in accordance with the formal requirements of s 8 of the Wills Act 2008. In particular, it appears to be signed by the testator, and the signing clause claims that this was done in the presence of two witnesses, a solicitor and a secretary, who have each attested and signed the will. The will appoints the applicant as executor and the sole beneficiary. Those with a relevant interest in the estate, in particular Mr Palfreyman's children, have all been notified of the application and each of them has provided a statutory declaration making it clear that they do not wish to contest the order sought by the applicant.

3             In those circumstances, the fact of due execution gives rise to a presumption that the testator possessed adequate testamentary capacity when he made the will. Further, this is a case in which it would be appropriate to not require detailed proof of due execution having regard to "the production of an apparently duly executed will, rational on its face": Blake v Knight [1843] 3 Curt 547, referred to by me in McFadyen v Bluett [2017] TASSC 72 at par 39.

4             It follows that the prerequisites for a grant of probate in solemn form have been met. In particular, it can be presumed that the testator possessed adequate testamentary capacity when he made the will, the will is the last valid testamentary disposition made by him, and all persons with a relevant interest have been given the opportunity to be heard. However, there are two issues which need to be addressed before proceeding to probate. Firstly, on the copy of the will provided to me, there seems to be a mistake made in the attestation clause with respect to the date of the will. The evidence of the applicant establishes that the will was executed on 19 June 2003. However, the attestation clause says "this 19th day of June Two thousand nine hundred and three". I conclude that this is a typographical error not noticed by the testator or the witnesses at the time of execution. In my view, the mistake is of no significance. In Corbett v Newey and Ors [1998] Ch 58, Waite LJ (with whom the other judges agreed), in a decision of the English Court of Appeals said this:

"Before coming to the arguments, I should state that it is common ground between all parties that there is no requirement in law that a will should be dated. Lack of a date or inclusion of the wrong date cannot invalidate a will."

5            Accordingly, I conclude that the error as to the date does not affect the validity of the will, nor the presumptions that arise from its apparent due execution.

6             The more difficult question is that the original will is not available. The evidence of the applicant, which I accept, is that she collected the original will from the solicitors who had prepared it, Dobson Mitchell Allport, on 27 March 2014. She has produced the acknowledgement of receipt of this document retained by the solicitors. In evidence before me, the applicant said that she had a "glimmer of a memory" of collecting the document. She did not apply for probate at the time because she was not aware that she needed to do so. It is only now that it has been suggested to her that if she wishes to sell

2   No 32/2024

her house, she may need probate, that she has made the application. The house was owned jointly by

the testator and her, but as tenants in common, not in joint tenancy. Hence, the testator’s interest did not

pass to her automatically on his death, but rather as part of his estate.

7             The applicant said that when she decided to make the application, she looked for the will but was unable to find it. She satisfied me that she has made a thorough search, but it seems that the original will has gone missing between the time that she collected it from the solicitors and when she made the decision to apply for probate. She cannot explain its loss, other than it may have been inadvertently

destroyed or lost during a “clearing up process”. I accept this evidence.

8             Upon realising that the original will had been lost, she obtained a certified copy of the executed document from Dobson Mitchell Allport. The photocopy had obviously been retained by the solicitors on their file. That copy has been annexed to her affidavit and received in evidence.

9             When the applicant appeared before Holt AsJ on the return of the application, his Honour suggested to her that in addition to obtaining evidence as to the attitude of the persons interested, namely the testator's children, she should also place an appropriate advertisement with the Law Society and make enquiries with the Public Trustee concerning the existence of a will of the testator. The applicant has done this. Neither avenue of enquiry has produced a result. Of course, such enquiries in the circumstances were unlikely to locate the original will because it was lost by the applicant in her home, but they at least give comfort to the Court that there was no subsequent testamentary document created by the testator.

10 There is no question that a lost or unavailable will can be admitted to proof, provided that the evidence supports such an order. This is the assumption which underpins r 54 of the Probate Rules 2017. In Curley v Duff [1985] 2 NSWLR 716, Young J set out the matters which "must be established when it is sought to have probate of a lost will". They are:

1      It must be proved that there was actually a will.

2        It must be shown that that will revoked all previous wills.

3      That the presumption of destruction by the testator is rebutted.

4      There must be evidence of its terms.

5      There must be evidence of due execution.

11   See also Blasutto v Fantin; the Estate of Maria Delfina Blasutto [2000] NSWSC 258.

12           It is apparent from the evidence I have discussed, that all of these matters are established. This includes the rebuttal of the presumption of destruction. This, of course, is simply and conclusively rebutted by the fact that the original will was still held by the solicitors well after the death of the testator, and until its collection by the applicant in 2014.

13          Having regard to all of this, it is appropriate and in the interests of justice that there be a grant of probate. Accordingly, I make the following orders:

1      I declare that the copy will annexed to the applicant’s affidavit sworn 5 October 2022,

marked with the letter B, is a true and correct copy of the will of Robert Lindley Palfreyman

executed on 19 June 2003.

2      I declare further that the said will is not available because it has been lost after the death of

Mr Palfreyman.

3      I grant probate in solemn form of the said will, as it is contained in the copy referred to

above.

4      The Registrar and the applicant shall have liberty to refer the matter back to me if any further

orders or directions are required to give effect to these orders.