Jessel MR said, at 231:
"To determine the first question, therefore, we have only to consider whether there is sufficient evidence to rebut the presumption.
Now, after the elaborate judgment delivered by the Learned President in the Court below, and by the Lord Chief Justice in this Court, I shall not recapitulate the details of the evidence; but I must say I am satisfied that the testator in this case died under the belief that he had left behind him a Will disposing, in a manner satisfactory to him, of his whole estate. Every act of his life which is proved, every statement made by him which is proved, in respect of his testamentary disposition, to my mind point to but one conclusion, and to arrive to a contrary conclusion would be to believe that Lord St Leonards not only spoke a lie but acted a lie to the last moment of his existence. I think in this case the presumption of revocation is completely rebutted, not only by the evidence of Miss Sugden herself, but by all the other evidence which is directed to that portion of the contest."
65 The other judges in the Court of Appeal (James LJ, Mellish LJ and Baggallay JA) agreed with the opinion of the Chief Justice concerning this question. Thus, Sugden v Lord St Leonards was a case where the presumption was found to be clearly rebutted.
66 Finch v Finch (1867) LR 1 PD 371 concerned a testator who had made a Will which left all his property to his daughter, thereby excluding a son who the testator regarded as, "a very lazy individual". He told his daughter about the making of that Will, and pointed out to her the particular drawer in which he kept the Will. It was established that there was no change in his personal relations with his son and daughter respectively between the making of that Will and the time of his death. After the father's death, the son was alone in the room where the Will was kept, and was seen coming from that room appearing to have something concealed under his coat. The Will was not found in the drawer where the testator had said it should be found. The basis of the conclusion of the court was, at 374:
"Now, if this evidence be true, it is obvious that this young man, while alone in his father's room, possessed himself of the key of the drawer, and, coupling that with the evidence of his leaving the room subsequently, as he did, a strong inference arises that he abstracted this Will. But the court is not bound to come to a conclusion one way or the other on that question. It is enough that the court is satisfied that there is no proof that this Will was not found in the depository of the testator. It is the non-existence of the paper at the time of death which leads to the legal presumption of revocation. A Will is good unless revoked; this Will is not revoked, unless the legal presumption arises; and to support that presumption the court must be satisfied that it was not in existence at the time of death. The evidence which has been produced does not satisfy the court that it was not in existence at that time; on the contrary, looking at the expressed intention of the testator to leave the property to his daughter, and the fact that he continued to express that intention up to the last occasion when he spoke about the Will, the court is satisfied that his determination remained unaltered until the time of his decease."
67 Thus, Finch v Finch is, in part, a case of the presumption not arising at all, because the court was not satisfied that the Will was not in existence at the time of the testator's death. It is also, in part, a case where the court was positively satisfied that there was no intention to revoke the Will.
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.
70 Section 18A(2) of the Wills, Probate and Administration Act 1898 has allowed evidence of statements made by a deceased person as to the manner of execution of his or her Will, or his or her testamentary intentions, to be admissible for the purpose of deciding to admit an informal Will to probate, or to admit the informal document as an amendment to a previous Will, or to treat the informal document as a revocation of a previous Will. Though section 18A(2) had been enacted at the time of the decision in Whiteley v Clune (No2) it supplemented, rather than replaced, the common law. Further, section 18A(2) did not cover the entire range of evidence which could be admitted to prove the contents of a lost Will. Prior to the introduction of the Evidence Act 1995, the common law rules which Powell J laid down in the fourth paragraph which I have quoted above, would have applied to decide the admissibility of evidence of a lost Will in those circumstances where section 18A(2) of the Wills, Probate and Administration Act 1898 could not be pressed into service.
71 Since the Evidence Act 1995 has been introduced, however, proof of the contents of documents (including lost Wills) must accord with that Act. Section 51 abolishes "the principles and rules of the common law that relate to the means of proving the contents of documents". Sections 48 to 50 of the Evidence Act 1995 set out the requirements of that Act for proof of documents. In the case of a lost Will, the relevant provision would be section 48(4)(b) which provides:
"(4) a party may adduce evidence of the contents of a document in question that is not available to the party, or the existence and contents of which are not in issue in the proceeding, by: …
(b) adducing oral evidence of the contents of the document in question."
72 Thus, it is now to the rules of the Evidence Act 1995 for adducing of oral evidence, and to any other specific provisions in legislation (such as section 18A(2) of the Wills, Probate and Administration Act 1898) that one must look for the rules of evidence which now apply to prove the contents of a lost Will, or a Will which has been destroyed in circumstances where there was no intention to revoke it. Even though section 18A(2) of the Wills, Probate and Administration Act 1898 predates the Evidence Act 1995, it continues to function alongside the Evidence Act - section 8 of the Evidence Act says, "This Act does not affect the operation of the provisions of any other Act"
Conclusions Concerning the Facts
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 circumstance, 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. The evidence from Corporal Capaldi, about conversation number 7, in which the Deceased shook his head when Corporal Capaldi told him to make sure he handed the Will in, on his return to Australia, suggests that even at that stage the Deceased might have been having some doubts about the appropriateness of the Will. The Deceased's letters from East Timor show that, by the time they were written, he did not regard the break-up with Miss Rhodes as final, and was trying to persuade her to resume the relationship. The Deceased actually resuming, to a significant though not complete extent, his relationship with Miss Rhodes upon his return to Australia is a circumstance which casts serious doubt on whether he would have seen the Will which he made immediately before going to East Timor, as still being an appropriate one. It was not submitted that the evidence showed that anyone other than the Deceased had access to his Will and might have removed it from his custody. In these circumstances, I am not satisfied that the presumption has been rebutted.
76 When I am not satisfied that the presumption of revocation by destruction has been rebutted, it is not necessary for me to consider what findings I might have made concerning the precise terms of the Will.
77 It follows that I find that the deceased died intestate.
78 The deceased died leaving no spouse, and no issue. Miss Rhodes has not contended that she was a de facto spouse. Section 63(b) of the Wills, Probate and Administration Act 1898 permits administration of the estate of an intestate person to be granted to one or more of the next of kin. Mrs Cahill is therefore entitled to apply for a grant. No contention has been put forward that anyone besides Mrs Cahill has a better claim to a grant. The grant will therefore be made to Mrs Cahill.
Costs
79 In Re Estate of Paul Frances Hodges Deceased; Shorter v Hodges (1988) 14 NSWLR 698 at 709 Powell J said (in words he repeated in Whiteley v Clune (No 2); The Estate of Brett Whiteley (13 May 1993, unreported), at 29):
"Costs are, of course, in the discretion of the court, but that discretion, being a judicial, and not an unfettered, one must be exercised in accordance with established principle.
The general principle to be applied in adversary litigation is that costs follow the event, those costs being taxed on a party and party basis. However, over the years, a number of exceptions to this general rule have come to be recognised. In the field of Probate litigation, two such exceptions have come to be recognised, they being: -
1. where the testator has, or those interested in residue have, been the cause of the litigation, the costs of unsuccessfully opposing Probate may be ordered to be paid out of the estate;
2. if the circumstances led reasonably to an investigation in regard to the document propounded, the costs may be left to be borne by those who respectively incurred them: see, eg Mitchell and Mitchell v Gard and Kingwell (1863) 3 Sw and Tr 278; 164 ER 1280; Orton v Smith (1873) LR 3 P and D 23; Wilson v Bassil [1903] P 239; Spiers v English [1907] P 122; Kenny v Wilson (1911) 11 SR 460: In the Estate of Holtam: Gillett v Rogers (1913) 108 LT 732.
To these exceptions to the general principle should, perhaps, be added the principle that, although a legal personal representative may be entitled to recover from a party to litigation costs only on a party and party basis, he, as a fiduciary, retains the right to an indemnity from the estate, and, thus, may have recourse to the estate for any difference between his costs on a trustee basis and the costs recovered from a party."
80 In the present case, this litigation has been occasioned by the fact that the testator died leaving real doubt about whether he had left a Will, and if so what that Will was. In these circumstances, it is appropriate for the costs of the parties to be paid from his estate.
Orders