Probate - Letters of administration - Claim for proof of will in solemn form - Defence that will was revoked by destruction - Counterclaim for letters of administration upon intestacy - Compromise - Withdrawal of claim for proof of will - No opposition to counterclaim

Administration Act 1903 (WA)

Wills Act 1970 (WA)

Cheese v Lovejoy [1877] 2 PD 251

Hoare v Reyburn (in his capacity as the Executor named in the Purported Will) [2010] WASC 301

Hughes v National Trustees Executor & Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134

In the Goods of Dadds [1857] EngR 406; (1857) Dea. & Sw 290, 164 ER 579

In the Goods of Davis [1952] P 279

In the Goods of Reade [1902] P 75

In the Will of Broomhead [1947] VicLawRp 45; [1947] VLR 319

In the Will of Orbini (1939) 42 WALR 43

In the Will of Podger [1957] VicRp 35; [1957] VR 275

McCauley v McCauley [1910] HCA 16; (1910) 10 CLR 434

Re Finnemore [1991] 1 WLR 793

Re Grey Smith [1978] VicRp 56; [1978] VR 596

Re Hampshire [1951] WN 174

Sugden v Lord St Leonards (1876) LR 1 PD 154

Thompson v Jermyn (1927) 30 WALR 123

Velasco v Coney [1934] P 143

Welch v Phillips [1836] EngR 1157; (1836) 1 Moo PC 203; 12 ER 828

Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, SCNSW, 13 May 1993)

1 EM HEENAN J: Jeffry Francis McKenzie, late of 45 Porter Street, Kalgoorlie, died in the regional hospital at Kalgoorlie on 2 June 2008. He was then aged 83 years, having been born on 11 August 1924 at Port Augusta in South Australia. He was by occupation a retired locomotive engine driver and had never married. He had no children. The cause of death, according to the death certificate, was renal failure and glomerulosclerosis, each of some years' duration.

2 The affidavits of scripts show that the deceased made two wills, the first dated 29 July 1975 in regular form appointing the Public Trustee to be his executor and trustee. This was a typewritten will in orthodox terms and apparently formally executed in accordance with s 8 of the Wills Act 1970 (WA). The second will was made on 26 July 1996, on a standard will form but otherwise in manuscript. This too appears to have been duly executed in accordance with the requirements of the Wills Act and to be regular in its terms. It contained a standard clause revoking all previous wills and testamentary dispositions ever made by the testator.

3 According to the evidence, the deceased was a careful and meticulous man who kept his important papers and records together and in order. A copy of the will of 26 July 1996 was found in an envelope which contained directions as to the location of the original will, but the original could not be found at the place indicated and, despite extensive search and inquiry carried out after the deceased's death, has never been found.

4 In these circumstances, the plaintiff, Brett John Sawyer, the executor named in the July 1996 will, applied by motion in the non-contentious jurisdiction for a grant of probate of the will of 26 July 1996 on production of the copy of that will and with affidavit evidence seeking to establish due execution, formal validity and capacity of the testator at the time the will was executed. The evidence adduced in support of the proposed proof of that will in common form was directed to be read and was read in the action, and will be mentioned in detail later. At this point, it is sufficient to say that the state of the evidence led the Probate Registrar to issue requisitions to address, and if possible to rebut, the presumption arising that the loss of a will, if not adequately explained, may give rise to an inference that it was destroyed by, or at the direction of, the testator with the intention that it be thereby revoked. This form of revocation is set out in s 15 of the Wills Act which, so far as is presently material, provides:

Without limiting sections 14(1) and 14A(2) [which provide for revocation by subsequent marriage or divorce - not here applicable], the whole or any part of a will may be revoked only -

(a) by a later will, including a document that is a will by operation of Part X;

...

(c) by the testator, or some person in the testator's presence and by the testator's direction, burning, tearing or otherwise destroying it to give effect to the intention of the testator of revoking it.

5 As to revocation by destruction, see In the Goods of Dadds [1857] EngR 406; (1857) Dea. & Sw 290, 164 ER 579 but such destruction will be effective only if carried out in the presence of the testator with animus revocandi: Velasco v Coney [1934] P 143 and Cheese v Lovejoy [1877] 2 PD 251. The Probate Registrar was not satisfied with the attempts by the plaintiff seeking probate in common form to rebut the presumption and declined to make a grant, leaving it to the plaintiff to commence these proceedings seeking proof in solemn form of the will of 26 July 1996.

6 Accordingly, this action was commenced by a writ issued by the plaintiff on 13 May 2010 naming Mervyn McKenzie as defendant. Mr McKenzie is the brother of the deceased, a person entitled in distribution to the deceased's estate in the event of an intestacy and, therefore, a person eligible to apply for letters of administration of the deceased's estate in the event that he did die intestate - Administration Act 1903 (WA) s 14 and s 25.

7 In these contentious proceedings, Mr McKenzie has filed a defence admitting that the deceased died on 2 June 2008 leaving property in this State, that he executed his last true will on 26 July 1996 in conformity with s 8 of the Wills Act, and that that will was duly executed. The defendant also admitted that the deceased had attained the age of 18 years at the time of execution of that will, was never married and had never lived in a de facto relationship. He also admitted that the plaintiff, Mr Sawyer, was the sole executor named in the 1996 will and that the original of that will could not be found. However, in that respect, the defendant pleads:

[T]he Defendant admits the July 1996 will cannot be found but says that the July 1996 Will was revoked or destroyed by the deceased or by some other person in his presence or by his direction with the intention of revoking it and says that at the time of the death of the deceased the July 1996 Will was not a valid and subsisting will.

8 Mr McKenzie then advanced a counterclaim alleging that the deceased died intestate and that there should be a grant of letters of administration to him of his brother's estate.

9 In his first affidavit in support of the application for a grant in common form of the will of 26 July 1996 Mr Sawyer deposed to the fact that he has attained the age of 18 years, that the deceased died on 2 June 2008 at the regional hospital in Kalgoorlie as a bachelor, never having married, and that the deceased had attained the age of 18 years at the date of that will. Also set out in that affidavit were details of the names and addresses of the subscribing witnesses and their current addresses. The affidavit annexed a statement showing the assets and liabilities of the deceased at the date of death. This revealed movable property to the estimated value of $445,213.16 within the State, and further immovable property within the State with an estimated value of $250,000, comprising the property at 45 Porter Street, Kalgoorlie. This produced a total estimated value of assets in the State of $695,213.16 less listed liabilities (mainly funeral expenses) of $15,295, giving a net estimated value of the deceased's estate as $679,918.16. In this affidavit Mr Sawyer swore to administer the estate according to law if granted probate and that, as far as he was aware, no other application for probate of any will of the deceased or administration of his estate had then been made. That affidavit was sworn on 13 October 2008.

10 In his affidavit Mr Sawyer describes his knowledge of events associated with the deceased's July 1996 will. He annexed to his affidavit the original envelope which the deceased gave to him soon after he executed his July 1996 will. That is a buff-coloured envelope with the following handwritten words printed or written upon it:

WILL

Copy of the last will and testament dated 26/7/96

of

Jeffry Francis McKenzie of 45 Porter Street, Kalgoorlie W Australia

(Original is affixed to inside of lid of metal filing cabinet at my flat - rear of above address)

11 Then Mr Sawyer deposed that he was aware that the July 1996 will was the last will of the deceased because, for some time prior to his death, the deceased had spoken to the plaintiff and to other persons in regard to changing the beneficiary of the first gift in the will. According to Mr Sawyer, the deceased told him on many occasions that that was the only change he wanted to make to the will. Again, according to the plaintiff, the deceased told him that he wanted to give all his photographic equipment, including camera, lenses, enlargers, chemicals, sensitised papers and films, books and many other items related to photography to the local Kalgoorlie camera club instead of to the named beneficiary of those items as listed in the will. According to the plaintiff, the deceased told him his reason for this was that that beneficiary had been charged with offences relating to dealings with children.

12 Mr Sawyer then deposed that when he left Kalgoorlie in late 2004 he returned the sealed envelope which contained the copy of the will to the deceased and was aware at that time of the deceased's intention to change his will. About 12 to 18 months after the plaintiff left Kalgoorlie, he was speaking to the deceased by telephone and asked him if he had changed his will. According to the plaintiff, in the course of that conversation the deceased told him that the change had not been made but asked if the plaintiff was still willing to be his executor. Mr Sawyer confirmed that he was so willing.

13 The plaintiff visited the deceased in hospital before his death when the deceased again raised the issue of changing his will. According to Mr Sawyer, he spoke to the deceased about the location of his will and was told that it was affixed to the inside of the lid of the metal filing cabinet under the table and gave the plaintiff permission to go to his home and find the will. Mr Sawyer says that he did go to the deceased's home and that he did find the metal filing cabinet, but that he was unable to find the original will. He did, however, find the sealed envelope which he had previously returned to the deceased.

14 After this visit, and at the request of the deceased, the plaintiff and another person arranged for a solicitor from the firm of McKenzie Partners in Kalgoorlie to attend the deceased in hospital to take instructions in regard to a new will or codicil. The solicitor, Mr McKenzie (not the defendant), attended the deceased in hospital but, because the testator was then under the influence of prescribed medication and was too unwell, the solicitor advised that he could not take instructions at that time. Following that visit, Mr Sawyer again visited the deceased in hospital and asked if the deceased remembered the visit by the solicitor. According to the plaintiff, the deceased said that he did recall the visit and that he was aware that his will had not been changed. According to the plaintiff it was, unfortunately, not possible to arrange for another visit by the solicitor to take instructions to change the will prior to the deceased's death.

15 Following the deceased's death, the plaintiff again went to his home at 45 Porter Street, Kalgoorlie and searched for the original will in the place stated on the envelope but did not find it at that location. He made a thorough search of the entire premises but was unable to find the original will. He also made inquiries of the National Australia Bank and the Goldfields Credit Union, where the deceased had substantial accounts, but was informed that they did not hold any documents or items in safe keeping for him. Inquiries made by the plaintiff with members of the deceased's family about the location of the will have also been unsuccessful in locating the original document.

16 Nola Wolski of Kalgoorlie is a registered nurse and manager who, with members of her family, had been a friend of the deceased for over 30 years. She visited him weekly over the last few years of his life, after he had commenced dialysis, and the deceased stayed at her home while he was adjusting to his new dialysis treatment. It was Nola Wolski who, with the plaintiff, and at the request of the deceased, had made arrangements for him to be visited in hospital by his solicitor to take instructions for a new will, as already described. In an affidavit of Mrs Wolski sworn 2 October 2008 she described how she was told by the deceased in about 2006 that he had organised his will, but she is unable to recall if he ever told her where the original was kept. According to Mrs Wolski, she had been aware, for about six months prior to the death of the deceased, that he was unhappy with some of the contents of his will. She then described a meeting on 4 May 2008 between the deceased, the plaintiff and herself, held to discuss what help the deceased wanted and his wishes in the event of his death. According to Mrs Wolski, the deceased said that he wanted to exclude one named beneficiary from his will because that person had been charged with a sexual assault. Mrs Wolski was not entirely sure of the details but thinks that the charge may have involved a minor. According to her, that was the only change which the deceased wished to be made to his will. Accordingly, she rang his solicitor at the firm of McKenzie Partners in Kalgoorlie and was present when that solicitor attended on the deceased at Kalgoorlie Hospital some weeks before the deceased's death in order to take instructions about a change to the will. At that time, Mrs Wolski was caring for the deceased but she says that in the solicitor's opinion the deceased was not well enough to give him proper instructions. This was because the deceased was in renal failure and his cognitive function was impaired.

17 One of the witnesses to the July 1996 will, Donald Alfred Scarlett, has made an affidavit sworn 25 October 2008 which, among other things, testifies to the due execution of the will on 26 July 1996. According to Mr Scarlett, he had known the deceased for 43 years prior to his death and was a very good friend and, for a few years, had been a business associate. Mr Scarlett saw the deceased on a regular basis, at least twice a week and sometimes more often, especially in the last 12 to 18 months of the deceased's life. According to Mr Scarlett, he was aware that the deceased still had a will which he had witnessed in 1996, but the deceased had expressed to him on many occasions over a period of at least the past nine years before his death that he intended to change that will. According to Mr Scarlett, he had been told by the deceased on many occasions that he wanted one named beneficiary removed from his will because that person was not the worthy person the deceased had thought him to be, and the deceased could not bear the thought that such a 'low life' would be in possession of his equipment. According to Mr Scarlett, the deceased would often express his disappointment and disgust at what he regarded as the low and despicable act which this person had committed. Mr Scarlett believed that the offence related to incest or indecent dealings with a child. Mr Scarlett was also aware that a solicitor in Kalgoorlie had attended on the deceased at the Kalgoorlie Hospital some weeks prior to his death in order to take instructions with regard to a change of the will.

18 In a supplementary affidavit of the plaintiff sworn 9 December 2008 he deposes to his belief that the deceased collapsed at his home in Kalgoorlie on 27 May 2008 and was admitted to Kalgoorlie Regional Hospital that day, where he remained until his death. Again referring to his meeting with the deceased and Mrs Nola Wolski at the latter's house on 4 May 2008, when there had been a discussion with the deceased in which the deceased said that he would have to change his will, Mr Sawyer deposed that, after telephoning the solicitor in Kalgoorlie requesting him to visit the deceased to make a new will, he had also suggested that the deceased should grant a power of attorney to Mrs Wolski and to one of his family members and that the deceased said that he wanted the plaintiff and Mrs Wolski to be his attorneys. According to the plaintiff, he again rang the solicitor in Kalgoorlie to suggest that there was no need for a power of attorney because it seemed that the deceased did not have long to live but that the deceased still wanted to change his will.

19 According to Mr Sawyer, his observation of the deceased over time was that on the one hand the deceased was very thorough in some things he did, such as writing notes, keeping records and paying bills on time, but that on the other hand he could be untidy. According to the plaintiff, for many years before the deceased's death there was paperwork such as mail scattered throughout his house and even in his car but, despite this, the deceased could always find things. Again referring to his earlier affidavit, the plaintiff said that on the day when he went to look for the deceased's will, also in the filing cabinet he found an envelope containing an unsigned copy of a will prepared for the deceased and apparently made on 29 July 1975, and that inside that envelope there was a receipt from the Public Trustee for the original of that will. Copies of those documents were annexed to the affidavit, being the envelope containing the 1975 will, an unsigned copy of that will and the receipt for that will given by the Public Trustee. On the envelope containing the copy of the 1975 will and receipt were handwritten words 'superseded by new will made out on 26 July 1996' in the handwriting of the deceased.

20 Mr Sawyer went on to depose that on the envelope containing the copy of the July 1996 will there was no note or writing indicating that it had been superseded, nor was there anything to indicate that the 1996 will had been destroyed or revoked. According to Mr Sawyer, and from his knowledge of the deceased, he believes that had the deceased destroyed or otherwise revoked the 1996 will, he would have told the plaintiff about it and he would have made a notation to that effect on the envelope containing the copy of that will. Finally, Mr Sawyer observed that after he left Kalgoorlie in 2004, up until the death of the deceased, he estimates that the subject of the proposed change of the deceased's will had been raised in conversation between them approximately five times, but deposes that nothing was ever said indicating that the will had been destroyed or revoked.

21 The July 1975 will appointed the Public Trustee to be executor and trustee of the will of the deceased, and contained the following devises and requests free of all probate and estate duties:

(a) the deceased's land and residence situate at and known as 41 Piccadilly Street, Kalgoorlie, to his nephew, Donald Peter McKenzie;

(d) his gold coins to his friend, Alfred Thomas Clews;

(e) all his cameras and his photographic equipment to his niece, Margaret Hitching;

(f) his vacant land situate at and known as lot 667 Warnbro Beach to his niece, the said Jean McGrechan;

(g) his vacant land situate at and known as lot 668 Warnbro Beach to his niece, the said Margaret Hitching.

22 Subject to the payment of his debts, funeral and testamentary expenses, and probate and estate duties, he then devised and bequeathed the residue of his real and personal estate to his trustee upon trust:

(a) as to four one-fifth shares thereof for equal division among such of them my brother Mervyn McKenzie, my nephew, the said Donald Peter McKenzie, and my nieces, the said Jean McGrechan and the said Margaret Hitching as shall survive me;

(b) as to the remaining one-fifth share thereof for equal division among such of them, my friends, Joyce Swain, Jillian Patricia Swain and Robyn Swain, as shall survive me.

23 The copy of the 1975 will found by the plaintiff had manuscript notes on the clause containing the specific devises indicating that the lands at lot 667 and lot 668 Warnbro Beach which had respectively been left to his two nieces had been sold.

24 By contrast, the copy of the will of 27 July 1996 which the plaintiff had sought to propound provided for the appointment of the plaintiff as executor and, after directing payment of all debts, funeral expenses and all death duties, contained the following devises and bequests:

(a) all photographic equipment, including cameras, lenses, enlargers, chemicals, sensitised papers and films, books and any other items related to photography to (here was inserted the name and address of the beneficiary who it appears later earned the disapproval of the testator because of unacceptable conduct);

(b) a 1973 (approximate) model KTM 175 cc Enduro motorcycle to Brett John Sawyer of 1A Short Street, Boulder;

(c) two 1958 model NSU 'Max' 250 cc motorcycles, one almost complete, the other partially assembled and with its parts in my garden shed, to Arthur Kullack of 32 Turner Street, Kalgoorlie;

(d) radios, including CB radios, whether installed in my home or in any vehicle owned by me and any other radio or associated equipment used in a hobby capacity, to Des Martin of 210 Piccadilly Street, Kalgoorlie;

(e) all other items including my house at 45 Porter Street, Kalgoorlie and all vehicles, with the exception of the above-mentioned motorcycles to be sold;

(f) accounts at National Bank Kalgoorlie, savings, cheque, term, to be closed and gold kruger rand coins, to be sold and all proceeds added to proceeds of previous item;

(g) two insurance bond accounts with National Mutual to be converted to cash, which is to be added to the two previous items;

(h) income from combined sources, above, to be disposed of as follows:

(1) funeral expenses, taxes and any government charges

(2) any outstanding debts

(3) to Brett Sawyer $5,000 to cover any personal expenses and inconvenience involved in the execution of this will

(4) the remaining money to be distributed in equal shares, between the following:

(a) Margaret Hitching, niece, of Busselton

(b) Callum, son of Margaret

(c) Rhys, also son of Margaret

(d) John McGrechan of 9 Anthea Street, Hazelmere, widower of my late niece Jean

(e) Colleen, daughter of John and the late Jean

(f) Marie, also daughter of John and Jean

(g) Dennis, son of John and Jean

(h) Peter McKenzie, son of my brother Mervyn, of 32 Bedford Street, Cunderdin and now resident in New Zealand

(i) Sarah McKenzie of Perth, daughter of Peter

Should any of the persons listed above (a) to (i) pre-decease his or her spouse, then that person's share will go not to the spouse, but be shared equally amongst any children of that union.

25 It is common ground that the 1975 will was revoked by the July 1996 will and would not have been revived if the 1996 will had itself been revoked as alleged by the defendant: Wills Act s 16; In the Goods of Davis [1952] P 279; and In the Goods of Reade [1902] P 75.

26 The terms of the July 1996 will show that the proposed alteration to its contents discussed by the testator with the plaintiff and Ms Wolski would only have effected a minor change to the overall dispositions as it proposed no more than a revocation of the bequest of the photographic equipment to the named beneficiary (see [24](a) above) and, presumably, the selection of a substitute beneficiary or beneficiaries for those items or, possibly, a direction that they be sold and the proceeds be added to the residue of the estate. Such a change could, readily enough, have been accomplished by a codicil.

27 A partial revocation of a will is possible - Wills Act s 15: Re Woodward (1871) LR 2 P & D 206 and Re Finnemore [1991] 1 WLR 793. In the circumstances of this case, where the original will is lost and there are grounds for concluding that the testator had it in his mind to make a new will or codicil at the time when he was in declining health, the disappearance of the original is more consistent with total revocation than partial revocation, especially if, as the inferences suggest, the whole of the document was destroyed by the deceased.

28 In the contentious proceedings the plaintiff decided not to pursue his claim to prove the July 1996 will and chose, instead, to allow the counterclaim for a grant of letters of administration upon an intestacy to proceed undefended. Consequently, at a status conference held on 4 October 2010 leave was granted to enter the matter for trial on an undefended basis and it was directed that evidence in the action be given by affidavit. The evidence in support of the counterclaim was an affidavit of the defendant sworn 2 May 2011, which deposed to the death of the deceased, the fact that the defendant was over the age of 18 years, and the defendant's search and inquiry for a will which referred to the will of 26 July 1996 but which the defendant believed had been destroyed by the deceased prior to his death with the intention of making a new will. Reference was also made to the first will of 29 July 1975 which, as already noted, was accepted as having been revoked by the will of 26 July 1996.

29 The defendant referred to the property left by the deceased within the jurisdiction and swore that if he were granted letters of administration he would administer the estate according to law. In this affidavit, Mr Mervyn McKenzie deposes that the deceased died a bachelor and was not living in a de facto relationship immediately before his death, that he had two sisters, Ella Melva McKenzie and Agnes Jean McKenzie, both of whom pre-deceased the deceased, leaving no children surviving them, and that he, the defendant, was the only brother surviving the deceased. According to the defendant, both parents of the deceased had pre-deceased his brother, and he knew of no person who may be a child of the deceased or who is, or who claims to be, an illegitimate child of the deceased, or who claims to be entitled in distribution through any such person. He also deposes that the deceased did not adopt any child or children, and that there is no person entitled to letters of administration of the estate with an equal or prior entitlement to his own. The defendant asserts, and it is accepted, that under the provisions of s 14 of the Administration Act he is the only person entitled in distribution to the estate of the deceased in the event of an intestacy. The defendant, Mr Mervyn McKenzie, was born on 23 March 1920 and is, therefore, presently aged 91 years.

30 Mr Mervyn McKenzie annexes to his affidavit a copy of a deed of family arrangement dated 15 March 2011 entered into between himself and the residuary beneficiaries of the July 1996 will. That deed encompasses an agreement regarding the distribution of the residuary estate of the deceased in the event that letters of administration of the estate are granted to the defendant. Among the recitals to this deed are:

1. There is doubt as to whether the Will [the 26 July 1996 will] was ever revoked or destroyed [by] the Deceased or by any other person in his presence or by his direction with the intention of revoking it.
2. Mervyn alleges that the Will was revoked and that the Deceased died intestate and that he is the lawful brother and only person entitled pursuant to the provisions of the Administration Act 1903 to the estate of the Deceased.

1. Pursuant to the terms of the Will Margaret, Callum, Rhys, John, Colleen, Maree, Dennis, Peter and Sarah are the residuary beneficiaries of the estate of the Deceased.

1. The parties have been in dispute in relation to whether the Will was revoked by the Deceased and accordingly as to whether the Deceased died intestate.
2. Margaret, Callum, Rhys, John, Colleen, Maree, Dennis, Peter and Sarah being the only persons entitled to share in the residuary estate of the [Deceased] and Mervyn being the only person entitled to the estate of the Deceased by way of intestacy have reached an agreement in relation to the distribution of the estate of the Deceased according to the terms set out in this Deed.
3. The parties have agreed that the Will has been revoked and that Mervyn apply to the Supreme Court of Western Australia for Letters of Administration in the manner set out in this Deed.

31 In the operative parts of the deed, the parties agree that the specific bequests in the July 1996 will should be put into effect, including the specific bequest of the deceased's photographic equipment and associated items for distribution to the person named in the will, that being the person about whom the deceased reported dissatisfaction. Then, for the balance of the estate, the deed provides that all the assets should be realised, that the liabilities of the estate be discharged, and that the plaintiff's costs in a specified amount up to the date of the deed of family arrangement, and the defendant's costs of the application for the grant of letters of administration, including his costs of these proceedings, be paid. The plaintiff is to receive $5,000, then of the remaining balance of the estate one-half is to be paid to the defendant and the other half distributed equally between Margaret, Callum, Rhys, John, Colleen, Maree, Dennis, Peter and Sarah.

32 The deed contains a term, in prominent type, that each of the parties acknowledges and agrees that they have been given an opportunity to read the deed, and to obtain independent advice, and to have taken such legal advice upon it as each considers necessary. Although not expressly so stated, the deed is conditional upon a grant of letters of administration being made to the defendant in these proceedings as sought.

Significance of the failure to find the July 1996 will

33 It is well-established that where a will which was last in a testator's possession is lost or missing, there is a rebuttable presumption that it has been destroyed by the testator with the intention of revoking the will: Welch v Phillips [1836] EngR 1157; (1836) 1 Moo PC 302; 12 ER 828; McCauley v McCauley [1910] HCA 16; (1910) 10 CLR 434; In the Will of Broomhead [1947] VicLawRp 45; [1947] VLR 319; In the Will of Podger [1957] VicRp 35; [1957] VR 275; and In the Will of Orbini (1939) 42 WALR 43.

34 In McCauley v McCauley O'Connor J at 446 expressly cited and applied the following observations of Lord Wensleydale, then Baron Parke, in Welch v Phillips at 829:

[T]he rule of the law of evidence on this subject, as established by a course of decisions in the Ecclesiastical Courts, is this: that if a Will, traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and the presumption must have effect, unless there is sufficient evidence to repel it. It is a presumption founded on good sense; for it is highly reasonable to suppose that such an instrument of so much importance would be carefully preserved, by a person of ordinary caution, in some place of safety, and would not be either lost or stolen; and if, on the death of the maker, it is not found in his usual repositories, or else where he resides, it is in high degree probable, that the deceased himself has purposely destroyed it. But this presumption, like all others of fact, may be rebutted by others which raise a higher degree of probability to the contrary.

The onus of proof of such circumstances, is undoubtedly on the party propounding the Will.

That rule has often been applied and has never been departed from or varied. The probability that a will not forthcoming has been destroyed animo revocandi and not lost obviously depends upon circumstances. One important element to be considered is the nature and the custody in which it is kept. All the facts of the case must be considered, and amongst them the nature of the provisions and the will itself is very material.

36 It has been said that 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 (1876) LR 1 PD 154 and Finch v Finch (1867) LR 1 P & D 371 cited by Powell J in Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, SCNSW, 13 May 1993) [26] - [27]. Nevertheless, the presumption exists and if there are circumstances implying that it is improbable that the will would have been destroyed by the testator animo revocandi, then it will be rebutted but, if not, it will be given such weight as the particular facts and circumstances suggest.

37 The presumption may be rebutted by evidence that the will simply went missing or was lost, as opposed to having been destroyed with the necessary intention: Re Hampshire [1951] WN 174. The presumption may also be rebutted by evidence that the testator lacked the necessary capacity to revoke the will by destroying it.

38 In the present case, in the affidavits filed in the non-contentious proceedings, there is a quantity of evidence from deponents about conversations which they had with the deceased signifying his dissatisfaction with one of the bequests in the July 1996 will and his desire to change that will to alter that disposition. The question arises as to the admissibility and, if admissible, the significance of such evidence. I do not consider that any of that evidence can be treated as expressing the testamentary intention of the deceased which could be carried into effect. However, on an analogy of the approach taken to hearsay evidence of a deceased testator in Thompson v Jermyn (1927) 30 WALR 123 and by Gibbs J in Hughes v National Trustees Executor & Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, 150, I consider that the evidence is admissible as bearing on the issue of whether or not the testator was dissatisfied with the terms of the July 1996 will and therefore had a reason or an inclination to revoke it by destruction if no other practicable option was available to him at a time of failing health.

39 The evidence is that serious attention was being given by the testator to altering his will at a meeting with his friends on 4 May 2008 when he was at the home of Mrs Wolski adjusting to his dialysis treatment, and that shortly after that he returned to his home at Porter Street, Kalgoorlie, where he was living alone, until his collapse on 27 May 2008 and his final admission to hospital, from which he did not return. It is apparent, therefore, notwithstanding that his conversations with the plaintiff and his friend and nurse Mrs Wolski imply that the 26 July 1996 will was still in existence and kept in safe keeping at his home in early May 2008, that he had an opportunity to destroy it between then and his final admission to hospital. Given the care which the deceased took to record the location at which the original will was kept, and to inform the plaintiff of that, there is at least potential significance in the fact that he never told the plaintiff, or Mrs Wolski, or anyone else in the last weeks or months of his life that the will had been moved to some other safe place.

40 Nevertheless, the present situation is that there is no longer any person seeking to propound the deceased's will of 26 July 1996. The only application before the court is for a grant of letters of administration upon an intestacy which, in turn, relies on the presumption that the disappearance of the original of the 1996 will raises the presumption of destruction by the testator with the intention of revocation. I realise that behind this position stands the agreement of the parties for a consensual division of the residue of the estate as set out in the deed of family arrangement, but that agreement is not determinative of the approach which the court should take. The situation is that there is an unopposed claim for letters of administration of the estate of the deceased upon an alleged intestacy which has disclosed the existence of a prior valid will of 26 July 1996 which, although it cannot be found, raises a presumption of destruction with a view to revocation. There are, as I have described, particular facts and circumstances which lend some degree of support for the presumption. These include: the testator's expressed dissatisfaction with the terms of the will because of his discovery of apparent disreputable conduct by one of the intended beneficiaries; his wish expressed on numerous occasions to have the will changed; clear evidence of his disclosure to others of the precise location at which the original will could be found; and then the absence of the will from that site, or any other place within his home at his death, which had been preceded by an opportunity for him to destroy the testament. No effort has been made to attempt to rebut the presumption.

41 In this situation, I consider that the observations of Murphy J in Re Grey Smith [1978] VicRp 56; [1978] VR 596 apply with appropriate adaptations to the situation where, as in this case, the claimant is seeking letters of administration, and where there is doubt about the existence or validity of a former testamentary document which could not be found. As I observed in Hoare v Reyburn (in his capacity as the Executor named in the Purported Will) [2010] WASC 301, with appropriate adjustments to the circumstances of this case, the counterclaiming defendant has disclosed to the court and to all beneficiaries entitled under it the existence of the July 1996 will and a copy of that testament has been produced to the court. The executor named in that will is a party to these proceedings and all the residuary beneficiaries are on notice of them, as appears from the fact that they are parties to the deed of family arrangement. Neither the plaintiff nor any of those beneficiaries now wishes to propound that will or to oppose the application for letters of administration. All the circumstances support the existence of a well-founded suspicion as to lack of effect of the July 1996 will because of presumed revocation and, as all concerned were on notice of these matters, I do not consider that it is necessary or appropriate for the court to carry the issue of the presumed revocation of that will any further than the decision of the parties themselves.

42 In the circumstances, therefore, I am satisfied that the plaintiff's application for proof in solemn form of the will of the deceased dated 26 July 1996, not having been pursued, should be dismissed. I am also satisfied that the court should order that there be a grant of letters of administration in solemn form of law of the estate of Jeffry Francis McKenzie in favour of the counterclaiming defendant Mervyn McKenzie. The form of the grant should be settled by the Probate Registrar with liberty to apply.

43 It is agreed by the parties that the costs of these proceedings should be paid out of the estate.