Supreme Court of WA|2007-05-04|Before: Hasluck J

ORIFICI as Executor of the Estate of ROSARIO GIUSEPPE ORIFICI -v- ORIFICI & ORS [2007] WASC 74 (4 May 2007)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : ORIFICI as Executor of the Estate of ROSARIO GIUSEPPE ORIFICI -v- ORIFICI & ORS

HEARD : 14 & 15 DECEMBER 2006, 9 MARCH & 13 APRIL 2007

BETWEEN : SIGNORINO ORIFICI as Executor of the Estate of ROSARIO GIUSEPPE ORIFICI

Succession - Wills, probate and administration - Proceedings by executors or administrators - Disputed Will not found - Principles bearing upon lost Will doctrine - Whether presumption of revocation has been rebutted - Elements required to establish probate of a lost Will - Application for proof of Will in solemn form dismissed - Finding that testator died intestate

Wills Act 1970 (WA), s 8, s 15, s 34, s 36

Wills, Probate & Administration Act 1898 (NSW), s 18A(1)

Cahill v Rhodes [2002] NSWSC 561

Curley v Duff (1985) 2 NSWLR 716

Dalton v Dalton, unreported; SCt of WA; Library No 970479; 24 September 1997

Orifici as Executor of the Estate of Rosario Giuseppe Orifici v Orifici [2007] WASC 74(S)

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

Whiteley v Clune (No 2); The Estate of Brett Whiteley, unreported; SCt of NSW; Library No 102594; 13 May 1993

1 In these proceedings the plaintiff, Signorino Orifici, seeks an order that the Court decree probate in solemn form of a Will dated 29 September 1977. This is said to be the Will of the plaintiff's late brother, Rosario Giuseppe Orifici, who died on 17 January 2001.

2 A signed copy of the 1977 Will could not be found following the deceased's death with the result that I must determine whether the ingredients for the application of the lost Will doctrine have been satisfied.

3 The plaintiff's case for such an order is supported by the third defendant, Vincenzo Orifici. It was common ground at the trial of the action that the third defendant is a son of the deceased by his first marriage.

4 The order sought by the plaintiff is opposed by the first defendant, Francesca Orifici, who is the widow of the deceased, and by the second defendant, Giuseppina Celenza, who is the daughter of the deceased. The second defendant is the sole issue of the union between the deceased and the first defendant, being the deceased's second marriage.

5 The 1977 Will purported to revoke all former Wills and testamentary dispositions and appointed the plaintiff and the first defendant (the deceased's wife) to be the executors and trustees of the Will.

6 By the terms of the disputed Will the trustees were to hold the residue of the deceased's estate for the first defendant for life and on her death, or if she predeceased him, to hold the residue for his daughter (the second defendant) and the son of the deceased's first marriage (the third defendant) in equal shares as tenants in common.

7 In opposing the relief sought by the plaintiff, the first and second defendants contend that the deceased died intestate with the result that his estate must be distributed in the manner allowed for by provisions of the Administration Act 1903 (WA) concerning entitlements on intestacy.

8 I note in passing that by s 14 of the Administration Act where a person dies intestate and leaves a husband or wife and issue and the net value of the intestate property (other than the household chattels) exceeds the sum of $50,000 the surviving husband or wife shall (in addition to the household chattels) be entitled to the sum of $50,000 absolutely together with interest on that sum and, of the residue, the surviving husband or wife shall be entitled to one-third and the issue shall be entitled to the other two-thirds subject to certain further statutory provisions.

9 It is apparent from the nature of the controversy between the parties that the first and second defendants are of the view that they would prefer to have the entitlements allowed to them on intestacy than the entitlements allowed for by the disputed Will. Further, they are opposed to the plaintiff's role as a possible executor of the estate.

10 The legal proceedings were commenced by a writ of summons issued by the plaintiff on 6 July 2004; that is, three years after the deceased's death. The defendants entered appearances and pleadings were exchanged by the parties.

11 In due course the plaintiff filed an affidavit of scripts pursuant to an order made by Registrar Boyle on 24 November 2004. Exhibited to the plaintiff's affidavit of scripts sworn 14 January 2005 was a file copy of the 1977 Will contended for by the plaintiffs. I will describe the facts and matters relied upon by the plaintiff concerning the alleged preparation and execution of the 1977 Will shortly. The plaintiff said in the affidavit of scripts that he did not know who had current possession or control of the 1977 Will.

12 Order 37 rule 2 of the Rules of the Supreme Court 1971 (WA) provides that the Court may, before or at the trial of an action, order that all or any of the evidence therein shall be given by affidavit if the Court thinks that in the circumstances of the case it is reasonable so to order.

13 An order was made by Registrar Boyle dated 7 December 2005 to the effect that the evidence at trial was to be by way of affidavit with provision being made for cross-examination of the deponents.

14 A full summary of the subsequent procedural steps including reference to the filing and serving of affidavits and the resolution of a dispute concerning an affidavit sworn by the third defendant is set out in the judgment I handed down on 27 March 2007: Orifici as Executor of the Estate of Rosario Giuseppe Orifici v Orifici [2007] WASC 74(S).

15 I will not repeat what was said in the March judgment. In essence, having regard to the terms of certain programming orders when the trial of the action was adjourned on 19 June 2006, I held that the third defendant's affidavit was not admissible.

16 As a consequence of this ruling the evidence at the trial of the action was confined to those affidavits adduced by the parties which were held to be admissible and cross-examination relating to the same by counsel for the opposing party.

17 In summary, the plaintiff relied upon his affidavit of scripts, his affidavit sworn 3 February 2006, and two further affidavits sworn 8 June 2006 and his further or responsive affidavit sworn 20 October 2006. The first defendant relied upon her own affidavit sworn 28 June 2006.

18 It will now be useful to look at the background to the dispute.

19 It appears from the plaintiff's affidavit sworn 8 June 2006 that he came to Western Australia from Italy in 1949. Two years later he was joined by his brother, Rosario Giuseppe Orifici; that is, the deceased. At the time the deceased migrated to Australia he was separated from his first wife who remained in Italy. The deceased's first wife was pregnant at that time and gave birth to a son on 16 December 1951 being the third defendant, Vincenzo Orifici. The latter grew up in Italy and continues to reside in that country.

20 In 1959 the deceased met the woman who was destined to become his second wife, being the first defendant in these proceedings, Francesca Orifici. It is said by the plaintiff that the deceased and the first defendant started living together after the birth of their daughter, Giuseppina, who was born in Perth on 23 May 1960. As I have indicated, Giuseppina is the second defendant in these proceedings.

21 The deceased and the first defendant lived together in a de facto situation as man and wife for over 16 years. Then, as appears from a marriage certificate exhibited to the plaintiff's affidavit, the deceased and the first defendant were married at Perth on 22 December 1976.

22 It appears to be common ground between the parties that in or about 1958 the deceased purchased vacant land at 264 Colwyn Road, Bayswater. This was later subdivided with one of the lots thereby created being sold. The remaining lot, known in these proceedings as the "Bayswater property" was owned by the deceased as at the date of his death.

23 Further, it seems that in 1977 the deceased purchased a residential property at 163 Drake Street, Embleton, which thereafter was occupied by the deceased and the first defendant as the matrimonial home (the "Embleton property"). The deceased owned this property also as at the date of his death.

24 The plaintiff said at par 4 of his affidavit sworn 8 June 2006 that since about 1978 or 1979 the deceased had been an invalid pensioner due to a back injury. He received a lump sum payment of approximately $20,000 to $30,000 in respect of worker's compensation. This evidence was not disputed.

25 The plaintiff said also in the course of his evidence that he (the plaintiff) ran a service station and the deceased was accustomed to spend time at the service station helping out on a casual basis.

26 It emerged from the evidence before me, viewed as a whole, that apart from the sale of one of the two sub-divided lots at Bayswater in April 1999 and his compensation claim, the domestic and financial circumstances of the deceased did not change to any significant extent between his acquisition of the Embleton property in 1977 and his death 23 years later, on 17 January 2001.

27 It seems that for the greater part of that period he cohabited with his wife (the first defendant) at the Embleton property although there was some controversy between the parties at the trial concerning an occasion in the 1990s when the first defendant moved out of the matrimonial home for a period. There was also controversy as to what happened to the proceeds from the sale of the Bayswater lot, and as to the extent of the first defendant's earnings.

28 A further area of controversy concerned the nature of the deceased's relationship with his son in Italy; that is the third defendant. I will address these issues in due course.

29 The plaintiff's case in these proceedings is that not long after the marriage the deceased instructed a solicitor, Salvatore Martella, to prepare a Will. It is said that the Will of the deceased was executed at Mr Martella's office on or about 29 September 1977.

30 In his affidavit of scripts sworn 14 January 2005 the plaintiff described the grounds of his knowledge of the testamentary script of the deceased the subject of the proceedings.

31 The plaintiff said that on 29 September 1977 he drove the deceased from the premises of Martella & Ozich, barristers and solicitors in Northbridge, to his business premises. Later that day the deceased attended at the plaintiff's business premises for a number of hours. During the time that the plaintiff spent with the deceased on that day he was told by the deceased that the latter had signed a Will. The deceased also described the contents of the Will during their discussion.

32 According to the plaintiff, the deceased told the plaintiff that the plaintiff was the trustee of the Will. He said to him that in the Will he had left a life estate to his wife, and that on her death, his two children would receive equal shares of his estate.

33 The plaintiff went on to say this in his affidavit of scripts:

"6. I do not know who has current possession or control of the Will.

7. At no time during his lifetime did the Deceased tell me that he had revoked the Will.

8. After the Deceased died, I contacted Salvatore Martella, the solicitor who the Deceased told me had prepared the Will.

9. I have perused a document, which I believe to be an unsigned copy of the Will. I have perused an affidavit of Salvatore Martella, which is evidence of the terms of the Will."

34 By his affidavit sworn 10 January 2005 Mr Martella asserts that he was admitted to practice as a legal practitioner on 23 December 1970 and commenced practise in partnership with Vladimir Veselko Ozich on 11 January 1971 under the business name of "Martella & Ozich". They continued in partnership until 31 December 1985.

"4. I was engaged by Rosario Orifici ("the Deceased") to prepare his will in or about September 1977.

5. I have known the Plaintiff, for many years. I believe I first met him when I was a student, or perhaps in the early days of my practice as a legal practitioner.

6. I remember the Deceased attended at my office in James Street, Northbridge in the said State, when he gave me instructions to prepare his will. I have perused my file, and from the file I note the Deceased first attended on 16 September 1977. His will was prepared, and then he returned to execute his will, which I say occurred on or about 29 September 1977. I say this because the date of the account rendered for the will was usually the date of the execution of the will.

7. I remember signing the will as a witness. I cannot recall whether the other attesting witness was the late Robert Donald Charles Jacquet or my then partner, Vladimir Veselko Ozich, though I think it was Robert Donald Charles Jacquet.

8. The reason that I remember the Deceased coming into my office was because I knew him fairly well.

9. The Deceased came in on his own to execute the will.

10. The Deceased took the signed will when he left the office.

11. I retained an unsigned carbon copy of the will in my file. Annexed hereto, and marked 'A' is a true carbon copy of the will that was prepared by the firm of Martella and Ozich for the Deceased. The original thereof was signed by the Deceased and witnesses as set out in paragraph 7 above.

12. On 15 January 2001, I received a telephone call from Barnadette Lloyd from Cottage Hospice, asking whether I had prepared a will for the Deceased.

13. I replied that I had prepared a will for the Deceased."

36 The document described by Mr Martella in his affidavit as a true carbon copy of the Will that was prepared by his firm (marked as Exhibit "A" to the affidavit) is on yellow paper. It appears to be a typed carbon copy or file copy of an original document. It is undated and not signed. There are no annotations, by ticks or initials of the kind often made by solicitors on file copy documents, which suggest that the original Will was executed by the testator, or which permit the reader to identify the witnesses.

37 The file copy of the disputed 1977 Will reads as follows:

"I, ROSARIO GIUSEPPE ORIFICI of 163 Drake Street, Embleton in the State of Western Australia, Furnaceman HEREBY REVOKE all former Wills and Testamentary dispositions heretofore made by me AND DECLARE this to be my last Will and Testament.

1.___I APPOINT my wife FRANCESCA ORIFICI and my brother SIGNORINO ORIFICI (hereinafter called 'my Trustees') the Executors and Trustees of this my Will AND I DECLARE that the expression 'my Trustees' shall where the context so admits include and refer to the Trustees or Trustee for the time being.

2.___I GIVE DEVISE AND BEQUEATH all my real and personal estate whatsoever wheresoever situate and of what kind or nature soever unto my Trustees UPON TRUST after payment of my just debts funeral and testamentary expenses and all duties death estate probate succession or other wise State or Federal upon the whole of my dutiable estate TO HOLD the residue thereof for my wife the said FRANCESCA ORIFICI for life AND on her death or if she shall predecease me TO HOLD the residue thereof for my daughter GIUSEPPINA ORIFICI and my son of a previous marriage VINCENZO ORIFICI (which son resides in Italy and has always resided in Italy) in equal shares as tenants in common absolutely.

IN WITNESS whereof I have hereunto set my hand to this my last Will and Testament this day of One thousand nine hundred and seventy seven.

SIGNED AND ACKNOWLEDGED by the said )

ROSARIO GIUSEPPE ORIFICI as and for )

his last Will and Testament in the presence of )

us both present at the same time who at his )

request in his presence and in the presence of )

each other have hereunto subscribed our names )

as witnesses :- )"

38 I am able to find, having regard to the whole of the evidence given at trial, that, as at 29 September 1977, being the date on which the 1977 Will was allegedly executed by the deceased at Mr Martella's office, the principal assets of the deceased consisted of his land at Bayswater (which was later sub-divided into two lots) and the Embleton property.

39 I find that the deceased's principal assets as at the date of his death were the Bayswater property (being one of the sub-divided lots), the Embleton property and arguably a portion of the proceeds from the sale of the other lot created by the sub-division of the land at Bayswater which was sold by the deceased in April 1999 for $155,000.

40 I will review the balance of the evidence concerning the alleged execution of the disputed 1977 Will in due course, including the cross-examination of the plaintiff and Mr Martella directed to that issue. However, it will now be useful to look at the pleadings with a view to identifying the central issues.

41 It is said by the plaintiff in par 1 of his statement of claim that he is one of the executors named in the 1977 Will.

42 The plaintiff alleges in par 2 of the statement of claim that the 1977 Will was never revoked or destroyed by the deceased or by any other person in his presence and by his direction with the intention of revoking the same, but was at the time of his death a valid and subsisting Will, but the same cannot now be found. The terms of the 1977 Will are then set out.

43 In his prayer for relief the plaintiff seeks an order that the Court shall decree probate of the contents of the Will as set out in par 3 of the statement of claim in solemn form of law. An order is sought that the costs of the application be paid out of the estate of the deceased.

44 The first and second defendants by their statement of defence deny that the deceased made a Will on or about 29 September 1977 and deny that the plaintiff is named in an executed Will of the deceased as executor. However, they admit that the deceased died on 17 January 2001.

45 As to par 2 of the statement of claim, the first and second defendants do not admit that at the time of the deceased's death the document referred to by the plaintiff was a valid and subsisting Will; they do not admit that there was any valid and subsisting Will of the deceased at the time of his death; they admit that no executed document purporting to be a Will of the deceased has been found.

46 With respect to par 3 of the statement of claim the first and second defendants do not admit that the document referred to by the plaintiff is an executed or valid and subsisting Will of the deceased.

47 By his statement of defence the third defendant simply admits par 1, par 2 and par 3 of the statement of claim. In other words, as I have indicated, the third defendant supports the plaintiff's case.

48 It emerges from this review of the pleadings that the plaintiff seeks to prove in solemn form and obtain probate in respect of an unsigned copy of a Will upon the basis that the original executed Will has not been found; that is, the plaintiff seeks probate of the document I have called the 1977 Will.

49 It is clear that the first issue to be determined is whether or not the Will allegedly prepared by Mr Martella was ever executed by the deceased.

50 If it be held that the so-called 1977 Will was prepared and executed by the deceased as alleged in the statement of claim, the next issue to be determined is whether that Will was revoked during the life of the deceased. This brings with it a number of subsidiary issues including a need to consider the steps taken to locate the Will. I must also have regard to the presumption of revocation and other matters bearing upon the doctrine which permits a party in certain circumstances to obtain probate of a lost Will.

51 It will now be useful to look at certain statutory provisions and decided cases bearing upon issues of this kind.

52 Section 8 of the Wills Act 1970 (WA) provides that a Will is not valid unless it is in writing, it is signed by the testator, the testator makes or acknowledges his signature in the presence of at least two witnesses present at the same time and the witnesses attest and subscribe the Will in the presence of the testator.

53 The provision just mentioned is expressly made subject to a later provision of the Wills Act concerning informal Wills. Section 34 of the Act provides that a document purporting to embody the testamentary intentions of a deceased person is a Will of that person, notwithstanding that it has not been executed in accordance with s 8, if the Supreme Court is satisfied that the deceased intended the document to constitute his Will.

54 Section 15 of the Act provides that a Will is revoked only by marriage (unless there is a declaration in the Will that it is made in contemplation of the marriage), a later Will that expressly or impliedly revokes the earlier Will, a writing declaring an intention to revoke it is executed in the manner prescribed by the Act, or, as provided by s 15(1)(d): "burning, tearing or otherwise destroying it by the testator or by some person in his presence and by his direction with the intention of revoking it". Section 36 of the Wills Act makes provision for the informal revocation of a Will.

55 Various decided cases have established that in certain circumstances a Court with jurisdiction to determine probate issues will recognise a lost Will and admit it to probate.

56 In Curley v Duff (1985) 2 NSWLR 716 Young J observed at 718 that five matters must be established when it is sought to have probate of a lost Will. First, it must be established that there actually was a Will, secondly, it must be shown that the Will revoked all previous Wills, thirdly, that the presumption that when a Will is not produced it has been destroyed must be overcome, fourthly, there must be evidence of its terms, and fifthly, evidence of due execution.

57 A few years after that decision the Wills, Probate and Administration Act 1898 (NSW) was amended in New South Wales to make provision for informal Wills. Section 18A(1) of that Act corresponds to s 34 of the Wills Act in this State.

58 The amendments prompted Campbell J in Cahill v Rhodes [2002] NSWSC 561 to make these observations:

"55. To take account of section 18A, the formulation of the five requirements which Young J laid down in Curley v Duff, needs to be modified as follows:

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

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 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.

60 The decided cases provide guidance also concerning the application of the so-called presumption of revocation. In Plucinski's case Master Newnes made these observations at [14]:

"Where a missing Will was last in the possession of the testator and cannot be found upon the testator's death, there is a presumption that the testator destroyed it with the intention of revocation: Welch v Phillips [1836] EngR 1157; (1836) 1 Mood CC 299; (1936) 12 ER 828, Allan v Morrison [1900] AC 604. The proponent of the missing Will has the burden of rebutting the presumption that it has been revoked by destruction: Re Will of Orbini (1939) 42 WALR 83 at 85; Dalton v Dalton (supra) at 5. The strength of the presumption which needs to be rebutted will depend upon a variety of circumstances, including the character of the testator's custody over it: McCauley v McCauley [1910] HCA 16; (1910) 10 CLR 434 at 438. The terms of the Will itself may affect the strength of the presumption. If 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 by the testator, with intention to revoke the Will, the presumption is so slight that it may be said not to exist: Sugden v Lord St Leonards [1876] LR 1 PD 154; Re Estate of Marcos [2001] VSC 69 at [23]."

61 In Cahill v Rhodes (supra) Campbell J cited with approval certain observations made by Powell J in Whiteley v Clune (No 2); The Estate of Brett Whiteley, unreported; SCt of NSW; Library No 102594; 13 May 1993 at 26 - 27 to this effect:

"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 (1876) LR 1 PD 154; Allan v Morrison [1900] AC 604; McCauley v McCauley [1910] HCA 16; (1910) 10 CLR 434);

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 (supra); Finch v Finch (1867) LR 1 P and D 371);

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 (supra) are as follows:

a. the contents of any lost instrument, including a Will, may be proved by secondary evidence;

b. written and oral declarations of a testator made before, or after, the execution of the Will are admissible as secondary evidence of its contents;

c. the evidence of a single witness, although interested, is admissible to prove the contents if his veracity and credibility are unimpeached;

d. Probate may be granted of so much of the contents as may be proved, even though proof is not available of the entirely [sic entirety].

It should, however, be noted that at least insofar as (b) and (d) are concerned, Sugden v Lord St Leonards (supra) although not overruled, has not escaped criticism (Woodward v Goulstone (1886) LR 11 App Cas 469; Atkinson v Morris [1897] P 40) so that it is improbable that the 'rules' will be extended."

62 Campbell J went on to say in Cahill v Rhodes (supra) that the notion of the character of the testator's custody over the Will 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; also who knows 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.

63 Campbell J also made these observations at [68] - [69]:

"68. 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.

69. The common law position concerning proof of the contents of a lost will, set out in Powell J's fourth proposition, has now become inapplicable through changes in legislation."

64 I digress briefly to note that Campbell J's critique of the fourth proposition was based upon an amendment to the common law affected by s 18A(2) of the Wills, Probate and Administration Act 1898 in New South Wales allowing for the admissibility of statements made by a deceased person. Section 34 of the Wills Act in this State concerning informal Wills does not extend to the amendment in question. Thus, in my view it is open to me to proceed in accordance with the common law position reflected in Powell J's fourth proposition.

65 The application of these principles can be usefully illustrated by reference to the facts and outcome in Cahill v Rhodes (supra). In that case the deceased died in 2001 aged 24 years. Some years earlier, in 1997, he had a Will in which he left the whole of his estate to a Miss Rhodes, who at that time he was intending to marry. The deceased's mother contended that the deceased executed a later Will in 1999 which made her the sole beneficiary, but the later Will had been lost. There was evidence before the Court that there had been a falling out between the deceased and Miss Rhodes subsequent to the making of the 1997 Will. There was evidence that the deceased had used a standard form obtained from a newsagent to make the later Will prior to the deceased leaving for East Timor as part of the Army's Peacekeeping Force.

66 Having reviewed the relevant statutory provisions and legal principles, and the evidence adduced in the case, Campbell J made these observations:

"73. I make these findings concerning the modified Curley v Duff requirements set out in paragraph 55 above. The Deceased made a new Will in about August 1999. That he did so is shown both by the evidence of oral statements which I have accepted, and also by being consistent with the probabilities. After the break-up of his relationship with Miss Rhodes, notwithstanding that he wished to remain friends with her, it is unlikely that he would have continued to wish that she received the whole of his estate. Further, the requirement of the Army that soldiers going to East Timor have an up-to-date Will is likely to have made him do something about his changed testamentary intentions. I am satisfied, particularly bearing in mind the evidence from Corporal Capaldi, that there was a document, which the Deceased understood and intended to be his Will, and which he had in his room.

74. I am satisfied that the document contained a revocation of prior Wills. When I am not satisfied about conversations 1 and 5 having occurred, I would not be justified in proceeding on the basis that the Will which the testator executed was one in the form of a standard form obtainable from a newsagent, and therefore likely to contain an express revocation clause. However, the statements which the Deceased made to other people, and which I have accepted, are ones which indicate that his break-up with Miss Rhodes was the reason for the change (conversations 4, 7, 8 and to a lesser extent 10) and a pattern of dispositions inconsistent with Miss Rhodes receiving any benefit (conversations, 6, 7 and 9). In those circumstances [sic], I find that the testamentary document contained, at the least, an implied revocation of his earlier Will.

75. I am satisfied that adequate searches have been made for the Deceased's Will, and that it has not been found. I am not satisfied that the presumption that the 1999 Will was destroyed by the testator with the intention of revoking it has been rebutted. ..."

67 In summary, Campbell J found that a young soldier had initially made a Will in favour of Miss Rhodes at a time when he had in mind to marry her. Having lived together briefly, they had a falling out. Evidence was presented to the Court that the deceased had told various people, including friends in the Army, that he had made a new Will naming his mother as sole beneficiary but this Will was not found.

68 His Honour was satisfied that the first two elements of the lost Wills doctrine were present, given the persuasive quality of the evidence that a new Will had been made and the evidence of its terms, which were inconsistent with the terms of the earlier Will. Nevertheless, Campbell J rejected the mother's application for probate of the lost Will, on the ground that the presumption of revocation (that is, that when a Will is not produced it has been destroyed) had not been overcome. He found that the presumption of revocation was underpinned by the evidence, rather than rebutted, because there was evidence that the deceased was having some doubts about the appropriateness of the new Will after he had made it, and did not regard his falling out with Miss Rhodes as final.

69 Having found that a new Will had been made, revoking the prior Will, and the new Will was presumed to have been revoked, the conclusion arrived at by Campbell J was that the deceased died intestate and letters of administration were granted to his mother.

70 Put shortly, this was a case where the presumption of revocation was not rebutted because there was evidence before the Court that the deceased was having second thoughts about his new Will because of a change in his relationship with one of the beneficiaries.

71 It emerges, then, from a consideration of this case and the principles referred to in earlier discussion that in determining whether the presumption of revocation has been rebutted, it is important to give consideration to the domestic circumstances and age of the parties and whether there has been any change in the nature of the relationship of those likely to be affected by the terms of the lost Will contended for. Consideration must also be given to any change in the financial circumstances of the deceased or in the circumstances of his dependents or the proposed beneficiaries.

72 Let me now return to the evidence in the present case.

73 It will be apparent from my review of the pleadings and the related legal principles that the first issue to be determined is whether there actually was a 1977 Will that was prepared and executed by the deceased in the manner contended for by the plaintiff in these proceedings. If findings to that effect are made then the other matters which must be established when it is sought to have probate of a lost Will will quickly fall into place (because the terms of the 1977 Will are said to be the terms set out in the carbon copy) save for an issue as to whether the presumption of revocation that is said to arise when a Will cannot be produced has been overcome.

74 I described the evidence given by the plaintiff in his affidavit of scripts and the affidavit evidence given by the deceased's solicitor, Mr Martella, in earlier discussion. That evidence was to the effect that the deceased attended on Mr Martella on 16 September 1977 with instructions to prepare his Will. He returned to execute the Will prepared by Mr Martella on or about 29 September 1977, being a Will in the form of the carbon copy. The deceased left Mr Martella's office with the signed Will and an unsigned carbon copy of that Will remained on Mr Martella's file.

75 The plaintiff said in his affidavit sworn 8 June 2006 that he had a close relationship with the deceased and was accustomed to discuss business matters with him. He said that in 1972, while on holiday in Italy, he spent some time with the third defendant. The latter was married in approximately 1978 and has two children.

76 The plaintiff went on to say in that affidavit that on or about 29 September 1977 the deceased said that he was going to the offices of Sam Martella to sign his Will. He asked the plaintiff to pick him up when he had finished. According to the plaintiff, the deceased left Mr Martella's office and arrived at the plaintiff's car carrying a sealed envelope. The deceased advised the plaintiff that his Will was in that envelope. The deceased spent the rest of that day with the plaintiff at the plaintiff's service station. He advised that he had appointed the plaintiff as trustee and given his property to his son and daughter, but that he wanted his wife looked after during her lifetime. During the course of his life, the deceased said to the plaintiff on a number of occasions that the third defendant was to be provided for in the Will because when he was young he was never given any assistance by the deceased.

77 The first defendant said in her affidavit sworn 28 June 2006 that after her husband died she was told by her former solicitor, Mr Greg Mohen of Friedman Laurie Singh, that she needed to search to see if she could find any Will made by her husband. She does not say explicitly in her affidavit that she made a search of the matrimonial home for a Will and was unable to find such a document. However, she does describe the inquiries she made concerning documents held by the Commonwealth Bank of Australia, being the Bank that she and the deceased had banked with for many years. I will come back to this matter later.

78 The tenor of the evidence in the first defendant's affidavit and the evidence she gave under cross-examination was that no Will was found. She had no personal knowledge of any Will prepared by Mr Martella in 1977 being executed by her husband and had not seen such a Will.

79 In his responsive affidavit sworn 20 October 2006, the plaintiff said, with respect to this issue concerning the alleged preparation and execution of the 1977 Will, that prior to the deceased's death he never mentioned to either the first defendant or the second defendant that the deceased had executed a Will.

80 The plaintiff said further that on the day that the deceased executed his Will, in 1977, he came back to the plaintiff's service station with the plaintiff. At the time, the deceased had with him a yellow envelope and advised the plaintiff that the signed Will was in the envelope. The plaintiff drove him home after work that night and the deceased still had the Will with him at that time.

81 The plaintiff said that he did not see where the deceased put the Will in the house that night. That was the last time that the plaintiff saw it. The deceased never advised the plaintiff where he kept the Will and the plaintiff never suggested to him where he should keep it. The plaintiff was cross-examined about these matters.

82 The plaintiff said that the deceased never advised him during the course of his life that he had destroyed or altered his Will, removed the plaintiff as executor, or altered his testamentary intentions from those expressed in his Will of 1977.

83 Mr Martella agreed under cross-examination that the file copy of the 1977 Will did not bear any annotations indicating that it had been executed. He said it was not his practice at that time to initial or date the file copy of a Will, although he was now inclined, in more recent years, to photocopy any Will executed at his office and place the photocopy on the file.

84 He was pressed as to how in these circumstances he could be certain that the 1977 Will had been executed as alleged. He agreed that he was relying on his memory but referred also to the account or invoice reflecting the fees for his services dated 29 September 1977. That invoice described the work as to taking instructions to prepare a Will, the preparation of the same and an attendance upon the testator to execute the same. He said that such an account would not have been prepared unless the services described in the account had been performed.

85 Mr Martella was unable to point to any ledger card or record evidencing that the account had been paid. However, he asserted his strong belief that the account had been paid because otherwise there would be a note or copy letter on the file indicating an attempt by him to recover the debt. There was no such note or letter on his file.

86 Under cross-examination, Mr Martella said that he could not be sure whether he spoke to the deceased about the safest place to keep the Will. He said that he did see the deceased from time to time at the plaintiff's garage in Scarborough Beach Road. He acted for the plaintiff in respect of small debt collecting matters.

87 It was put to Mr Martella that after the death of the deceased a solicitor acting for the first defendant had raised a query about any Will made by the deceased. Mr Martella denied that in the course of any such conversation he had indicated or suggested that the information on his file was not consistent with the original of the file copy of the Will on the file having been executed by the deceased.

88 There is evidence before me from Mr Martella that in September 1977 he received instructions from the deceased to prepare a Will. Mr Martella said that he prepared a Will in response to those instructions which was executed by the deceased at his office on 29 September 1977 in the presence of Mr Martella himself and another witness.

89 Mr Martella confirmed that the terms of the Will in question are reflected in the carbon copy of the Will that remained on his file. This is the disputed 1977 Will in respect of which the plaintiff seeks a grant of probate. The plaintiff was unable to locate an original, executed copy of the disputed Will after the deceased's death.

90 The first defendant (the deceased's widow) could offer little evidence bearing upon the matters addressed by Mr Martella. She gave evidence to the effect that the deceased did not believe in Wills. The tenor of her evidence was that the deceased did not speak to her of making a Will such as the disputed Will, and she had not seen a Will in his possession.

91 In certain circumstances evidence of this kind, if given in a forthright manner by a widow who could say with conviction that she was closely involved in her husband's business affairs and in the safekeeping of documents thought to be important, could give rise to an inference that the disputed Will was not made by the deceased as alleged.

92 I am conscious also that the evidence of Mr Martella was not entirely satisfactory, because there are no overt indicia on the file copy that the disputed Will was actually executed, although I have no reason to doubt his evidence that he received instructions from the deceased and the disputed Will was prepared as alleged. In other words, having regard to the matters mentioned earlier, I have to take account of the possibility that the disputed Will was prepared but not executed.

93 However, I have to say that the first defendant was not a convincing witness. In arriving at that conclusion, I take account of the fact that the giving of her evidence was attended by difficulties in coping with the English language and the process of interpretation. Even so, I cannot overlook the fact that her replies to questions tended to be argumentative, and this in turn often led to her being evasive.

94 For the most part, the first defendant did not appear to consider the questions put to her in cross-examination in a conscientious way. She was inclined to say whatever seemed likely to be inconvenient to the questioner. She was not necessarily an untruthful witness, but I cannot regard her as a reliable witness, and generally I was not able to give much weight to the answers she gave under cross-examination concerning this aspect of the matter. There is nothing in her affidavit which bears directly upon the events described by Mr Martella and the plaintiff, and upon the making of the disputed Will.

95 Under cross-examination, Mr Martella was challenged about certain aspects of his evidence. However, in the end, having regard to the observations I have just made, I am of the view that I must give weight to and accept what he said. According to him, the disputed Will was prepared and executed by the deceased on 29 September 1977. According to Mr Martella, he was able to verify this by reference to the language of the account on his file and the indication that his account was paid. This suggested that the services had indeed been performed including an attendance upon the client for the purpose of executing the Will.

96 Mr Martella's evidence was corroborated to some extent by the plaintiff's evidence about what was said by the deceased in the context of a visit to Mr Martella's office at that time. It was corroborated also to some extent by the terms of the disputed Will which were clearly related to the accused's domestic circumstances.

97 Accordingly, as to the first issue, I am satisfied on the balance of probabilities, and so find, that on 29 September 1977 at Mr Martella's office the deceased executed the disputed 1977 Will as a valid Will. I find also that the original executed copy of the Will was not retained by Mr Martella. It was enclosed in a yellow envelope which was then handed to the deceased for safekeeping. It was that envelope, containing the disputed 1977 Will, which was later seen by the plaintiff in the way that he has described. As to this aspect of the matter, I find that the plaintiff was a reliable witness and have therefore given weight to his evidence on this point.

98 It follows from these findings that the disputed 1977 Will can be traced into the defendant's possession in late September 1977. I am able to infer, and so find, that on the day the Will was executed, the deceased took to his home at Embleton the yellow envelope containing the disputed Will.

99 I have no direct evidence before me from either the plaintiff or the first defendant or any other person as to what happened to the Will thereafter, or as to where it was kept. I find that the defendant did not tell his wife (the first defendant) that he intended to or had in fact made a Will.

100 This brings me to the further issues mentioned in earlier discussion concerning the question of whether the disputed Will was revoked by the deceased. In addressing these issues I must now return to the evidence.

101 The plaintiff said in his affidavit sworn 8 June 2006 that his brother, the deceased, discussed business matters with him. He said that it is typical of Italian culture that men would discuss business matters with each other but not necessarily divulge them to their wives or family. He said that in 1981 and 1996 the deceased went to Italy to see his son, Vincenzo. Vincenzo came to Australia for a holiday in 1997. He brought his wife and sons with him and stayed for approximately two months.

102 According to the plaintiff, while Vincenzo was in Perth the deceased took him to Bayswater to show him the land that he owned at River and Colwyn Roads, Bayswater. This land was near the Tonkin Highway. While at the land the deceased said to Vincenzo that the land would some day belong to him. The plaintiff was present when this was said. However, since then, one of the sub-divided lots comprising the land was sold.

103 The plaintiff went on to say that during the course of his life the deceased said to the plaintiff on a number of occasions that Vincenzo was to be provided for in the Will that Mr Martella had prepared because when Vincenzo was young he was never given any assistance by the deceased.

104 The plaintiff said that he did not believe the deceased had destroyed the disputed Will. The deceased was precise with his business affairs, and discussed his Will with both Vincenzo and the plaintiff. In the plaintiff's belief, if the deceased had destroyed the Will, he would have discussed the matter with the plaintiff, as it was the type of matter that they would discuss.

105 In his affidavit sworn 20 October 2006 (being an affidavit filed in response to the first defendant's affidavit) the plaintiff said that from the mid-1970s until approximately 18 months before he died the deceased would attend the plaintiff's service station at Scarborough Beach Road almost daily and stay for most of the day there. The plaintiff also went to the deceased's house for dinner on Friday nights.

106 The plaintiff said that approximately six months before the deceased died, he had a conversation with the deceased on the driveway at his home. The deceased passed a note to the plaintiff. He said that there was cash located in different hidden spots in his house. The note disclosed the locations of those hiding spots. He told the plaintiff that of the cash, $15,000 was to go to Vincenzo and the rest was to be divided evenly between the first defendant and the second defendant. At that time the deceased appeared to be in good health, although he said that he was losing his strength. I will call this the "deceased's note".

107 The deceased's note appears to refer to five numbered locations which are described in Italian. These locations appear to have been translated to refer to sites such as "under the bench in garage" or "box behind door". The note also bears an endorsement "$15,000 - per Vincenzo my son".

108 The plaintiff said that upon the deceased's death he advised Mr Martella of the existence of the note and asked if he could arrange for a joint inspection of the house to check the locations. However, Mr Martella sent the note to the first defendant's solicitors without organising for a joint inspection. The firm in question, Friedman Laurie Singh, subsequently advised that the first defendant had searched those locations and no cash was found.

109 The plaintiff said that he believed the deceased had cash reserves because he (the plaintiff) paid him many cash amounts over many years, for his assistance at the service station. After a period of time, the deceased indicated that he did not want any more cash because he had plenty.

110 The plaintiff acknowledged that the deceased never advised the plaintiff where he kept the Will and the plaintiff never suggested to him where he should keep it. He said that approximately two weeks before the deceased died, while the plaintiff was at the deceased's house, the deceased said to him that everything was fixed for Vincenzo. The plaintiff understood this to mean simply that the Will was still in place.

111 The plaintiff said also that he could recall that after the deceased went to Italy in 1996 to visit Vincenzo, the first defendant moved out to live with her daughter. The deceased told the plaintiff that his wife was jealous that he had gone to visit Vincenzo. At about this time, the deceased also advised the plaintiff that the first defendant wanted to sell the house so that they could separate and she could buy her own unit. Centrelink visited the home on a number of occasions in relation to this.

112 The plaintiff said further that at the time they were separated, the first defendant would not go back to the Embleton house without police company. After a few weeks the first defendant moved back in with the deceased.

113 The plaintiff said further in his affidavit that throughout many years that he spent with his brother the deceased would regularly talk of Vincenzo, and from those discussions the plaintiff was aware that they would speak every couple of months, as well as on birthdays and at Christmas. He was not aware of any change in the relationship between his brother and Vincenzo prior to the deceased's death, and the deceased never made any adverse or critical comments to the plaintiff concerning Vincenzo during his life.

114 According to the plaintiff, the deceased never advised him during the course of his life that he had destroyed or altered his Will, removed the plaintiff as executor or altered his testamentary intentions from those expressed in his Will of 1977.

115 The plaintiff was cross-examined as to various facts and matters bearing upon the further issues. He acknowledged that he was not told by the deceased that the deceased had prostate cancer. The plaintiff did not ask the deceased where he had put his Will and he was never told by the deceased where it was.

116 The plaintiff agreed that the land at Bayswater was sub-divided. After one of the lots was sold by the deceased the plaintiff did not ask the deceased whether he had made a new Will. The plaintiff agreed that the deceased's wife (the first defendant) had a problem with her knees but he could not recall whether this gave rise to any discussion with the deceased about providing her with a house because of her condition. The plaintiff said that there were problems in the relationship between the deceased and his wife after they came back from Italy in 1996. He said that the deceased's daughter (the second defendant) was married in about 1980.

117 The plaintiff said that a portion of the Bayswater land was sold by the deceased in April 1999. According to the plaintiff, the proceeds of the sale were used by the deceased to buy a new car and to put in air-conditioning in his house. He understood that the rest of the proceeds were put in the bank.

118 Under cross-examination the plaintiff acknowledged that he (the plaintiff) never told the first defendant that there was money hidden in the house. That was because the plaintiff was waiting for the lawyers to deal with the matter. He had to proceed in that way because the first defendant had stopped talking to him.

119 The first defendant in her affidavit sworn 28 June 2006 gave evidence bearing upon the further issues. She said that whether or not her husband signed the disputed Will as alleged, he would have revoked that Will before he died. In her belief if he had wanted to die leaving a Will, and if he had wanted to leave Vincenzo any part or any substantial part of his estate, perhaps without wanting her to know about it, he would have either got possession of the disputed Will and given it to the plaintiff. Alternatively, if he had revoked that Will, he would have made a new Will and would have given possession of that Will to the plaintiff.

120 She said that her husband knew for about five years that he had prostate cancer. He knew, about four years before he died, that the cancer was getting worse and that it would only be a matter of time before it took his life, as it did.

121 The first defendant said that she did not know where her husband kept the certificates of title to the Bayswater land or to the Embleton residential property. It was only after her husband died that she found out that certificates of title had been left by her husband in a safe custody packet with the Commonwealth Bank of Australia.

122 She said that after her husband died, she was told by her former solicitor, Mr Greg Mohen of Friedman Laurie Singh, that she needed to search to see if she could find any Will made by her husband. This led her to make enquiries with the Commonwealth Bank of Australia because she and her husband had banked with that Bank for many years and because the third defendant, alleged through his solicitors in Italy, that her husband had made a Will and that it was kept at the Commonwealth Bank. At her request, and in her presence, the relevant safe custody packet was opened and it contained only certificates of title to the Bayswater property and to the matrimonial home at 163 Drake Street, Embleton.

123 The first defendant said that her husband was careful about keeping documents. They sent quite a lot of money to Vincenzo in Italy over the years and her husband kept documents relating to the transfer of these moneys.

124 I pause here to say that certain parts of the first defendant's affidavit contained matters of speculation which I will pass over. However, the first defendant did assert that after Vincenzo and his family visited Australia in 1997 from Italy, Vincenzo made little effort to keep in contact with her husband. She referred to this as a reason why her husband might have revoked any Will he might have previously made in which a substantial portion of his estate was left to his son.

125 The first defendant said that she paid for the costs of flying the third defendant and his wife and two children to Australia when they visited in 1997. She paid for this trip with money that she had earned. The airfares cost about $7000. The money was not repaid. She believed that her husband felt that he had helped Vincenzo enough and that if it had ever been appropriate in the past to make provision for him from his estate, it was not appropriate or necessary to do so in the final years of his life. She and her husband knew, before he died, that Vincenzo had adequate property for himself and his family, and that both he and his wife had good jobs.

126 The first defendant said also that she had caused a search to be performed at the Public Trustee's Register of Wills and believed that her husband did not make a Will with the Public Trustee.

127 The first defendant was cross-examined at length by counsel for the plaintiff and the third defendant about various matters bearing upon the further issues. Unfortunately, as I indicated in earlier discussion, the cross-examination was complicated by her difficulties with the English language and the process of interpretation. In addition, the first defendant's argumentative style often meant that it was difficult for an observer to discern what exactly the answer was to various questions. For these reasons, and the reasons given previously, I am inclined to treat much of what was said in the course of cross-examination with caution.

128 However, subject to these reservations, I note that in the course of cross-examination she confirmed that the only documents in the safe custody packet at the Bank were the certificates of title concerning the land. She agreed that the properties owned by the deceased were held in his name alone. She disputed that the deceased's note was in his handwriting. She said that she did not look in the locations mentioned on the note because it was not necessary for the deceased to hide money. There was no money.

129 She said that she had never asked her husband whether he had made a Will because she knew from what he said that he did not believe in Wills. He said also that whatever was his was hers.

130 She was pressed about what happened to the proceeds from the sale of one of the lots at Bayswater, being the sum of $155,000. The first defendant said, sarcastically, that she was sure he did not throw the money into the sea. She continued to assert that it was she who had paid the price of Vincenzo's ticket out of her own funds. She acknowledged that the defendant spoke to Vincenzo on the telephone a couple of time. She said that no important documents were kept at the Embleton residential property. However, the receipts for money sent to Vincenzo were kept in the bedside drawer in the bedroom. She denied that the plaintiff was as close to the deceased as he had represented. This was because more than once the deceased "had been offended by Mr Signorino Orifici in the garage" (TS 172).

131 The first defendant was asked by counsel for the third defendant whether, after her husband's death, she looked for a Will in the house. She said "Yes, I looked around a little bit and I couldn't find anything and they knew it" (TS 189). When pressed, she spoke of looking around, including in the toilet. Having calmed down, she was pressed further as to where in the house she did look.

132 The exchanges in Court bearing upon this part of the cross-examination are as follows:

"GRASSO, MR: Where did you look, Mrs Orifici?---In the toilet.

Okay, you looked in the toilet. Whereabouts in the toilet? Is there a cupboard in the toilet?---Yes, they have a hole and then when you sit, I look in there.

You think this is a big joke, don't you, Mrs Orifici?---It is.

You just lied - -

HASLUCK J: All right now, let us just all quieten down please. Mrs Orifici?---Horrible things, you know, with my husband and me, we no kill anybody, we no rob anybody, we just live our life.

Mrs Orifici, please calm down. Please calm down. These are questions of facts. You needn't worry about what's behind the question. The question is simply a question of fact. Where in the house did you look?---We were putting all our bankbooks and documents in a drawer in our bedroom and that - I still do the same.

The reason you put them in the bedroom is because they are safe there. Correct?---That is a place that we always used and we knew that they were there.

I suggest to you, Mrs Orifici, that that was where the will was and you tore it up?---I thank you very much because you was with me and you was the one to tell me to do it.

HASLUCK J: Mrs Orifici, just answer the question?---You have told me - and I never done such a thing. If my husband wanted to do something, I let him do. My husband was a sick person. I have a big (indistinct) for x-ray, to show everybody how sick he was since I've been with him. His half-brother destroy - -

Now, the question again was: did you find a will in the drawer by your bed after your husband's death?---No, I didn't."

133 Counsel for the third defendant then referred expressly to the carbon copy of the disputed 1977 Will extracted from Mr Martella's file and asked the first defendant whether in the course of searching the house she found the original of that document signed by her late husband. This exchange then occurred (TS 192):

"GRASSO, MR: Mrs Orifici, did you find the original of that copy of the will signed by your late husband?---No, I never found it. I have never seen it.

Did you find it anywhere else in the house?---No."

134 The plaintiff, as one of the executors named in the disputed 1977 Will sought to be proved, was not able to produce an executed copy of the Will. There is no direct evidence before me that the deceased revoked the missing Will by an act of destruction. I am therefore obliged to give consideration to the principles bearing upon the doctrine of lost Wills.

135 The decided cases establish that where a missing Will was last in the possession of the deceased (as I have found) and cannot be located upon the deceased's death there is a presumption that the testator destroyed it with the intention of revocation. The proponent of the missing Will (in this case the plaintiff) has the burden of rebutting the presumption that the Will has been revoked by destruction.

136 The strength of the presumption of revocation depends upon various considerations including the character of the testator's custody over the missing Will and whether the Will makes a careful and complete disposition of the deceased's property.

137 When I stand back and look at the circumstances of the present case as a whole, I must begin by noting that at the time the disputed 1977 Will was made the deceased had been married for less than 12 months. However, prior to that time, he had been living with the woman who was destined to become his wife (the first defendant) in a de facto relationship for close to 17 years.

138 His son in Italy was 26 years of age at the time the disputed Will was made. His Australian born daughter (the second defendant) was 17 years of age and unmarried. The deceased had owned the Bayswater land for many years and had recently acquired the Embleton property. I accept that as at 1977 the deceased had, over many years, harboured a sense of responsibility for his son in Italy.

139 When the matters in issue are set in this context it is open to me to infer that the terms of the disputed 1977 Will represent a careful and complete disposition of the deceased's property at a time when the nature of his assets and his family relationships were reasonably well defined. By his Will the deceased purported to make provision for each of those for whom the deceased felt a sense of responsibility. It might have been disappointing to the first defendant (had she been aware of he terms of the Will) that she had been provided with a life estate only, but it cannot be said that her claim upon the deceased's bounty was overlooked or disregarded. She would have been at liberty to stay on in the matrimonial home.

140 Observations of this kind prompted counsel for the plaintiff and the third defendant to submit that in the present case the presumption of revocation by destruction was slight and should not be acted on. In other words, counsel contended, the evidence relied upon by the proponents of the disputed Will was sufficient to rebut the presumption of revocation with the result that effect should be given to the disputed Will on the basis that it represented the final testamentary position of the deceased, although an executed copy of the missing Will could not be found.

141 This submission was reinforced by various contentions. It was said that the first defendant was not a credible witness. In the absence of credible evidence from her that a thorough search had been made by the first defendant at the Embleton property for the missing Will the Court could not make a finding with any confidence that the deceased had destroyed the disputed 1977 Will.

142 Having regard to the evidence that no such document was found at the deceased's Bank, and having regard to the first defendant's evidence that certain documents of some importance were kept in the bedroom or in a bedside drawer, the character of the testator's custody over the disputed Will was probably such that it could easily have been lost or removed by a family member or some other person with an interest adverse to the terms of the disputed Will.

143 Accordingly, on this view of the matter, one could not conclude that the missing Will had been destroyed by the deceased with the intention of revoking it. Counsel referred to the unsatisfactory evidence given by the first defendant concerning her income and the cash that was said to be in the house, as suggested by the deceased's note. It was said further that the deceased's note and other evidence before the Court, including the payments made to Vincenzo, established that the deceased felt a sense of responsibility for his son in Italy throughout his life. This made it unlikely that he would destroy a carefully considered Will in which provision was made for the son.

144 It was submitted further that the family and financial circumstances of the deceased had not changed in any significant respect between the making of the disputed Will on 29 September 1977 and the deceased's death 23 years later in early 2001. The only change of any significance, these parties contended, was the sale in April 1999 of one of the two sub-divided lots at Bayswater for the sum of $155,000.

145 Thus, it was said, if the disputed Will could be characterised as a careful and complete disposition of the deceased's property in 1977 then, in the absence of any significant change in his circumstances, the Court could not reasonably infer that the deceased was likely to or had in fact revoked his Will prior to his death by destroying it. The presumption of revocation was rebutted by this and other circumstances.

146 However, it is at this point, in my view, that the plaintiff's contention (as supported by the third defendant) begins to break down. There may not have been any dramatic change in the deceased's circumstances but it is necessary to give consideration to the passing of the years.

147 In the years after the making of the Will in 1977 the deceased's son in Italy and his daughter in Australia moved to full maturity. The daughter married. Payments were made by the deceased to his son in Italy. On the other hand, the deceased and his wife of many years standing began to move into old age. It seems that they faced a domestic difference of opinion in 1996 but it is clear that they were soon reconciled. The deceased's health began to deteriorate, and there is evidence before me that the first defendant had a problem with her knees and was not as strong as before. The prospects of the first defendant remarrying after the death of her husband were not the same as in 1977 when a decision was made to give her a life estate only.

148 Accordingly, when the relationship in question is considered in this light, I am of the view that I must be cautious in accepting too readily that after the disputed Will was made in 1977 the deceased's life ran on uneventfully. The revocation of a Will by destruction is not necessarily undertaken in a fit of pique or in response to some dramatic event, such as a family row or a sudden increase or diminution in wealth. It may occur quietly, after a period of reflection, when, in the privacy of his own mind, a testator concludes that what once seemed fair is no longer appropriate, due simply to the passing of the years, and gradual changes in the circumstances and health of those forming part of his family circle.

149 This brings me back to the starting point of this discussion. The disputed 1977 Will has not been found. I have expressed some disquiet about the evidence given by the first defendant but I am prepared to give some weight to her evidence that a search for the deceased's Will was made but the disputed Will or any document of that kind could not be found. Her evidence in that regard is corroborated to some extent by the objective and undisputed evidence that a search for documents at the deceased's Bank was carried out but did not lead to the discovery of a Will.

150 The first defendant was challenged about her evidence in various ways but she made no admission that the disputed Will or anything like it was found. I am inclined to disregard her remarks about the toilet, and other sarcastic asides, on the basis that utterances of this kind were part of her argumentative style and not meant to be taken entirely seriously.

151 It emerges, then, that the disputed Will can be traced into the deceased's possession close to 30 years ago. However, there is no evidence before me of any kind that the disputed Will has been seen since. There is nothing to suggest that it was not open to the deceased at any time to destroy such a document with the intention of revocation. There is no clear proof that the missing Will was appropriated by a party to this action or by any other person.

152 On the other hand, there is evidence before me that a portion of the land at Bayswater, allegedly the subject of the deceased's promise to his son, was sold in 1999, some years after the promise was made. I am prepared to give some weight to the first defendant's evidence that in the last years of his life the deceased concluded that he had done enough for his son and that no money was stored in the matrimonial home as envisaged by the deceased's note. I give greater weight to that part of her evidence which confirms that after his return from Italy, the deceased had a disagreement with his wife about the deceased's support for his son, but this was followed by a reconciliation. All of this, plus the length of the marriage, supports an inference that towards the end of his life, the deceased may have had doubts about the terms of the disputed 1977 Will. The plaintiff's evidence about the deceased's note suggests that if the deceased had wanted the disputed 1977 Will to apply upon his death he would have given it to his brother, or told the plaintiff where it could be located, but the undisputed fact is that he did not do either of these two things.

153 I am of the view that, in these circumstances, I must give weight to the presumption that the deceased destroyed the missing Will with the intention of revocation. For the reasons I have given I am not satisfied that the plaintiff has rebutted the presumption of revocation. To my mind, the passing of the years, accompanied by changes in the deceased's domestic and financial circumstances, means that in this case the presumption of revocation cannot be regarded as of only slight effect.

154 In all the circumstances, I am satisfied on the balance of probabilities that the defendant destroyed the disputed 1977 Will with the intention of revocation. It follows that the plaintiff's application for proof in solemn form of the disputed 1977 Will will be dismissed. The corollary of this conclusion is a ruling that the deceased died intestate.

155 The plaintiff's claim will be dismissed. I will hear from the parties as to whether any further orders or directions are required.

Administration Act 1898

Cahill v Rh

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (182 paragraphs)

ORIFICI as Executor of the Estate of ROSARIO GIUSEPPE ORIFICI -v- ORIFICI & ORS [2007] WASC 74 (4 May 2007)

Parties

Legislation Cited (1)

Cases Cited (2)