Demediuk v Demediuk [2019] VSCA 79

1 The applicants seek leave to appeal against the decision of a trial judge of the Court by which they were refused leave to amend their Grounds of Objection to the grant of probate of the Will of their late father, Peter Demediuk ('the deceased'), who died on 15 February 2013.

2 At the time of his death, the deceased was 93 years of age. His wife, Taisa, had pre-deceased him. The deceased left four adult children, namely:

(a) the first respondent, Barbara Demediuk (the plaintiff);

(b) the first and second applicants, Peter Demediuk and Nicholas Demediuk (the first and third defendants);

(c) the second respondent, Sandra Willis (the second defendant).

3 The deceased made at least five Wills during his lifetime, which were dated as follows: 5 July 1956; 9 July 2010; 24 November 2010; 10 February 2012 ('the February Will'); and 27 June 2012 ('the June Will'). None of those Wills had been professionally drawn by a firm of solicitors. The first Will (made in July 1956) was completed in handwriting on proforma Will stationery. Each of the last four Wills were typewritten, and appeared to have been printed from a computer with a word processing program. They each consisted of three pages. The deceased was not computer literate, and it is accepted that he must have had some assistance at least in engrossing each of those last four Wills.

4 After the deceased died, the only version of the June Will, that was available, was a four page document. It consisted of two original pages, numbered 'one of three' and 'two of three' respectively, and two further photocopied pages both numbered 'three of three'. That third page contained the date and signature of the deceased and the two attesting witnesses.

5 The first respondent has made application to the Court for probate of the June Will. In her affidavit in support of that application, she deposed that on one day, when she was visiting the deceased at his home, he told her that he had made a new Will and he wanted her to have it. The deceased provided the first respondent with a document that, she observed, comprised multiple pages that were folded in half. She did not count the pages, or open or read them. Instead, she placed the document in her bag, where it remained for several days. Subsequently, she removed the document from her bag and placed it into a plastic sleeve which she stored with her own personal papers in a box at her home. She did not open or read the Will before the death of the deceased. After the deceased had passed away, she noted that the document comprised original pages 1 and 2, and two photocopies of page 3.

6 The application for probate was supported by an affidavit of the attesting witness, Ms Mafutaga Tomuli. Ms Tomuli had been the deceased's carer since August 2009. She deposed that on one day, in 2012, the deceased removed a wallet from the basket in his walker, and took some papers from it. He asked her to sign the document, which he described as his Will. She signed her name, and, at the request of the deceased, she initialled the foot of the other two pages. The deceased then put the wallet with the papers into his basket and they returned home. Ms Tomuli noted that the wallet remained in the basket for some time after that day. Sometime later, she noticed the wallet on the dining table of the deceased, where he kept many of his other papers.

7 The application for probate was also supported by an affidavit of the other attesting witness, Kate Rogers. Ms Rogers then resided in the property that adjoined the deceased's home. In her affidavit Ms Rogers stated that one day in about June 2012, the deceased attended at her home accompanied by his carer. The deceased handed Ms Rogers a document which she recognised as a Will. At the deceased's request, Ms Rogers witnessed the document, by signing page 3 of it, and initialling the foot of pages 1 and 2 of it. She confirmed that the carer signed the document while they were all seated at the same table. When the signing of the Will was complete, the deceased then left Ms Rogers' premises with the carer, taking the Will with him.

8 In his affidavit in opposition to the grant of probate, the second applicant deposed that shortly after the death of the deceased, he found the February Will (in its original form) in a purple plastic pocket located in a filing cabinet in the deceased's office in his home. He searched the deceased's house, but he could not locate the original page 3 of the June Will, and it has not been produced by anyone else.

9 The first respondent commenced the proceeding by originating motion applying for a grant of probate of the June Will in its hybrid original and photocopy form.

10 In response, the applicants and second respondent filed a notice of objection to the grant on three bases, namely: first, the June Will was not executed in conformity with the Wills Act 1997 (that objection was subsequently abandoned); secondly, the June Will was revoked by the deceased (based on the fact that the original page 3 of the June Will could not be found); and, thirdly, the June Will was made as the result of testamentary undue influence exercised upon him by the first respondent.

11 Subsequently, the applicants and second respondent filed and served affidavits in support of their objections. By summons dated 24 March 2016, the first respondent applied for summary judgment pursuant to s 63 of the Civil Procedure Act 2010 ('Civil Procedure Act') on the basis that the undue influence ground had no real prospect of success. The judge gave judgment in that application, finding that although the undue influence ground had no real prospect of success, nevertheless it should proceed to trial pursuant to s 64 of the Civil Procedure Act. Her Honour ordered that amended grounds of objection be filed and served.[1]

12 The judge also directed that the proceeding be relisted in order to determine any unresolved objections to the affidavits of the applicants and the second respondent. Relevantly, at that point in the proceeding, the applicants and the second respondent relied on confined grounds in support of the objection that the deceased had revoked the June Will, namely: the original of page 3 of the June Will, which contained the deceased's signature and attestation clause, was missing and could not be located; and the original pages 1 and 2 of the June Will and the copy of page 3 was given by the deceased to the plaintiff and the original page 3 remained in the deceased's possession until his death. The amended grounds contained a number of propositions relating to the ground of undue influence. The judge ruled on the objections to the affidavits in May 2017.[2] In respect of the argument by the second respondent and the applicants that much of the evidence, that was objected to, was relevant to both the undue influence and revocation grounds, the judge ruled:

The defendants' reliance on the alternative ground of revocation as a secondary means by which their affidavits might satisfy the relevance test must be rejected. The only basis for the ground of revocation in the defendants' amended grounds of objections is the absence of the third page of the June will. There is no allegation that the surrounding factual matrix, including matters that occurred prior to making the June will, are a basis for revocation of the June will.[3]

13 Following that ruling, the applicants and the second respondent applied by summons dated 17 July 2017 for leave to further amend the amended grounds of objection in respect of the revocation ground. That application was dealt with by written submissions. On 27 February 2018, the judge gave reasons granting the applicants and the second respondent leave to amend their grounds of objection in accordance with the proposed further amended grounds of objection, but only in respect of a limited part of those proposed grounds.[4] It is from the orders made by the judge, consequent upon that ruling, that the applicants now seek leave to appeal.

Proposed further amended grounds of objection

14 It is necessary, for the purposes of this application, to set out the proposed further amended grounds of objection in their entirety. They were:

1. The Deceased revoked the June Will. The Defendants rely upon the following facts, matters and circumstances:

(a) the original page 3 of the June Will, which contains the Deceased's signature, attestation clause, witnesses' signatures and the words 'This is the end of my Will', is missing;

(b) the original of pages 1 and 2 of the June Will, and the copy of page 3, was given by the Deceased to the Plaintiff and the original of page 3 and any copies of pages 1 and 2 were last in the Deceased's possession;

(c) the original of page 3 of the June Will and the copies of pages 1 and 2 cannot be located;

(d) accordingly, the presumption of revocation applies and the June Will is presumed to have been revoked by the Deceased; and

(e) further the following facts, matters and circumstances support the presumption or in the alternative the inference that the Deceased revoked the June Will:

(i) prior to the making of the June Will the Plaintiff was angry with and resentful of the Deceased in particular because the Plaintiff considered she had not been treated fairly by her parents and that the defendants Sandra Willis and Nicholas Demediuk had been preferred by her parents;

(ii) prior to the making of the June Will the Deceased was subjected to attempts by the Plaintiff to cause him to alter arrangements to improve her financial interests, in particular:

(A) by urging and pressing the Deceased to procure the immediate transfer of interests in properties at Erskine Street North Melbourne and Dawson Avenue, Brighton from the defendant Sandra Willis to the Plaintiff ('the transfers');

(B) by pressing the Deceased for, and arranging, reimbursement of the income tax she had paid on rental income from properties the Deceased had placed in her name, despite it being a longstanding arrangement that the Deceased's children paid such income tax without reimbursement; and

(iii) the Plaintiff wanted the Deceased to change his Will and communicated that wish to the Deceased;

(iv) prior to the making of the June Will the Deceased was greatly distressed by various exchanges with the Plaintiff concerning the transfers, including occasions when the Plaintiff yelled and screamed at him;

(v) at the time of making the June Will, the Deceased was vulnerable: he was 93 years old, recently widowed after a long marriage, in poor health, had been hospitalised several times, required a carer, was profoundly deaf, became exhausted easily and had limited mobility;

(vi) the June Will contained unexplained changes from the Deceased's Will of 10 February 2012 ('the February Will') which significantly benefitted the Plaintiff by her receiving:

(A) devises of real property of a value exceeding $2 million more than she received under the February Will; and

(B) devises of property or interests in property left in previous wills to the defendant Sandra Willis (Cloyne Street, Highett), the defendants Peter Demediuk, and Nicholas Demediuk (Opawa Street, Brighton) and Peter Demediuk for the benefit of Peter Demediuk's daughters (Lusk Drive, Vermont);

(vii) the changes referred to in paragraph 2(e)(vi) above were unusual in that:

(A) the Deceased (and his late wife) had longstanding and settled intentions that the Cloyne Street, Highett property would pass to the defendant Sandra Willis and his interest in the Opawa Street, Brighton property would pass to the defendants Nicholas Demediuk and Peter Demediuk, so that the four children would have an equal share;

(B) in the February Will the Deceased left the Lusk Drive, Vermont property (which in the Deceased's earlier wills from 2010 onward was to be sold to pay debts), to Peter Demediuk for the benefit of Peter Demediuk's daughters in gratitude for the care Peter Demediuk's daughters took of his late wife during her last illness;

(C) at the time of the June Will, there was nothing in the circumstances of the relationships the Deceased had with Sandra Willis, Peter Demediuk, Peter Demediuk's daughters or Nick Demediuk to provide any reason for the Deceased to change his mind in relation to those devises;

(D) at the time of the June Will Sandra Willis had lost her long term employment and had informed the Deceased of that;

(E) the June Will included in relation to Dawson Avenue, Brighton the wish of the Deceased that Sandra Willis transfer her one-quarter interest in Dawson Avenue, Brighton to the Plaintiff, even though that transfer had been signed in May 2012; and

(F) the June Will bequeathed the Battery Street, Clovelly, NSW, property to Sandra Willis although the Deceased had signed a transfer of land for nil consideration in favour of Sandra Willis on 23 March 2012;

(vii) The June Will was prepared and copied in unknown circumstances and the Deceased was unable to use a computer;

(ix) The Deceased managed his own financial affairs and personally kept careful and well-organised custody of important documents, including his current and previous wills, and in particular:

(A) his Will file was kept in a filing cabinet in his office;

(B) it was out of character for him to provide his will or a copy of it to the Plaintiff or anyone else;

(C) it would have been out of character for him inadvertently to lose the original page 3 of the June Will;

(D) on an occasion in March 2012 when the Deceased had been feeling really sick overnight the Deceased had retrieved a purple plastic pocket containing his Will from the filing cabinet and placed it on a table in his home;

(E) after the Deceased's death the February 2012 Will was located in the filing cabinet in a purple plastic pocket; and

(F) after the Deceased's death no copies of pages 1 and 2 and the original of page 3 of the June Will were found among the Deceased's possessions.

(x) the original page 3 of the June Will contained the Deceased's signature, the attestation clause, witnesses' signatures and the words 'This is the end of my Will'; and

(xi) the Deceased, after making the June Will, conducted himself as if the June Will did not exist:

(A) in late September or early October 2012 the Deceased discussed with Peter Demediuk, Peter Demediuk's plans for the Lusk Drive, Vermont property;

(B) in August or September 2012 the Deceased posted the duplicate Certificate of Title for Cloyne Street to Sandra Willis;

(C) in late 2012 the Deceased spoke to Lucy Demediuk about the Lusk Drive property and recommended she and her sister rent it out once Peter Demediuk had renovated it;

(D) in late 2012 the Deceased told Nick Demediuk that he was leaving Cloyne Street, Highett to Sandra Willis; and

(E) in December 2012 the Deceased told Sandra Willis:

(i) that he had left his property at 1 Alton Avenue Brighton and a share of the Opawa Street, Brighton property to Nicholas Demediuk in his Will and that he hoped that would make 'Nick' happy; and

(ii) that her mother would be happy that he was leaving their original home, Cloyne Street, Highett, to Sandra Willis.

15 In ruling on the amendments, the judge first considered the principles relating to the presumption of revocation, which arises where a Will, last traced to the possession of the deceased, is not forthcoming on the deceased's death. Her Honour noted that the presumption is one of fact which may be rebutted by appropriate evidence.[5]

16 The judge further noted that in Cahill v Rhodes,[6] Campbell J had set out the principles to be applied where there is a lost Will. In particular, based on that decision, her Honour considered that, in a case in which the presumption of revocation may arise, the relevant examination of the factual circumstances is confined to the period between the making of the Will and the date of death. In reaching that conclusion, the judge expressed the view that matters that were antecedent to the making of the Will, were not relevant to that issue.[7]

17 Having discussed the authorities relating to the application of the presumption, the judge noted that the proceeding does not involve a missing or lost Will that was last traced to the possession of the deceased. Rather, it involves a missing original page 3 of the June Will, in circumstances where the original pages 1 and 2 have been traced in the possession of the first respondent (the plaintiff). The judge observed that that scenario raises an argument as to whether the presumption of revocation is applicable at all, and, if it is, whether the presumption of destruction is not more probable than accidental loss of the original page 3 of the June Will.[8]

18 Having made that observation, the judge then turned to the proposed amendments that are contained in paragraph 2 of the further amended grounds of objection. Her Honour noted that the amendments to the existing ground under paragraphs 2(a), (b) and (c) made that ground clearer, so that leave to amend those paragraphs would be granted.[9]

19 The judge then examined paragraph 2(e) of the proposed further amended grounds of objection. Her ruling on that subparagraph may be summarised as follows:[10]

(1) Paragraph 2(e)(i)-(iv) concerned matters antecedent to the making of the June Will. Based on Cahill, the relevant examination of the facts or circumstances is confined to the period between the making of the Will and the time of death.

(2) Paragraph 2(e)(v) stated a conclusion, and was not relevant to the revocation of the June Will, because it related to the time at which the Will was made.

(3) Paragraphs 2(e)(vi) and (vii) comprised a combination of submissions, speculation and conclusions, and relate to matters that predate the making of the June Will. Accordingly, they are not relevant.

(5) Paragraph 2(e)(ix), which refers to the deceased's custody of important documents, may be relevant where the Will is missing. However, in this case it is uncontroversial the deceased did not store his Will as he handed it to the plaintiff (first respondent).

(6) Paragraph 2(e)(x) does no more than repeat some of the matters contained on page 3 of the June Will.

20 For those reasons, the judge refused leave to amend the grounds of objection to include paragraph 2(e)(i)-(x). Her Honour granted leave in respect of paragraph 2(e)(xi), as it related to discussions after the date of the June Will and to the posting of a duplicate certificate of title to the second respondent after that Will was executed.[11]

21 The applicants seek leave to appeal that decision on the following ground:

The learned Judge was in error in holding that the matters described in the Proposed Further Amended Grounds of Objection dated 31 July 2017 for which leave to amend the Amended Grounds was not allowed, were not capable of:

(i) supporting a presumption that the deceased revoked the will made on 27 June 2012 ('June Will'); or

(ii) supporting an inference that the deceased revoked the June Will.

22 In support of the proposed ground of appeal, counsel for the applicants noted that the authorities, relating to the presumption of revocation, place some emphasis on the question whether the Will, which was missing, was one which was arrived at after mature deliberation, or whether it was a hasty expression of a passing dissatisfaction with one or more of the persons who might otherwise benefit by the testator's dispositions. In support of that proposition, counsel relied on the judgment of Hannen P in Sugden v Lord St Leonards[12] and Griffith CJ in McCauley v McCauley.[13] It was submitted that the authorities demonstrated that the question, whether the deceased made a careful and complete disposition of his or her estate in the Will that was missing at the date of death, necessarily requires consideration of circumstances preceding and including the time of the making of the Will. In particular, it was submitted, those circumstances provide a context within which to characterise the content of the Will itself.

23 Counsel also submitted that the decision of Campbell J in Cahill does not stand for the principle relied on by the judge, namely, that it is impermissible to have regard to circumstances that occurred before or at the time of the making of the Will, in order to determine whether that Will had been subsequently intentionally revoked by the testator. Counsel contended that in a number of cases - including the decision of the High Court in McCauley and the decision of the Court of Appeal in Sugden - the Court did in fact take into account circumstances that preceded the making of the Will in order to determine the question of whether that Will had been subsequently revoked. Accordingly, it was submitted, the judge erred in refusing to allow leave to include matters contained in paragraph 2(e)(i) to (iv) of the proposed amended grounds.

24 Counsel further contended that leave ought to have been granted to include the matters contained in paragraph 2(e)(vi) and (vii). Those subparagraphs detailed the changes between the February Will and the June Will which favoured the first respondent, and detailed matters which rendered those unexplained changes unusual. It was contended that those matters were relevant to determine whether the June Will constituted a careful and complete disposition of property by the testator, which, in turn, would bear on the probability of a subsequent decision by the deceased to revoke that Will.

25 In addition, counsel contended, the circumstances, outlined in those subparagraphs, gave necessary context to the circumstances contained in paragraph 2(e)(xi), which the judge concluded were relevant to the issue of revocation.

26 In respect of paragraph 2(e)(viii), it was contended that the circumstances in which the June Will was produced were relevant, when considered in the context to the other matters contained in the proposed grounds. Counsel further submitted that the matters contained in paragraph 2(e)(ix) were relevant, because the nature of the custody of the Will and the habits of the deceased in respect of its custody were important to the inquiry whether the missing document had been destroyed with the intention of revoking it.

27 Finally, counsel contended that the matters contained in paragraph 2(e)(x) were relevant, because, in paragraph 2(e) of the proposed grounds, the applicants seek to rely, not only on the presumption of revocation, but also on an inference to be drawn from all the circumstances of the case, including those contained in that subparagraph.

28 In response, counsel for the respondent contended that the authorities established that the question, whether the presumption of revocation is rebutted, depends on two issues, namely, first, whether the testator's Will made a careful and complete disposition of the testator's property, and, secondly, whether there are circumstances between the time of the making of the Will and the time of death that reveal any likely change in the deceased's testamentary intentions so as to demonstrate that the testator had any reason to revoke the Will. Thus, counsel contended, the only matters that were of relevant concern, first, the testamentary intentions of the deceased as expressed in the missing Will, and, secondly, the deceased's testamentary intentions between the date of the Will and the date of death. In support of that proposition, counsel relied on a number of authorities, including Whiteley v Clune (No 2); the Estate of Brett Whiteley,[14] Cahill, and Sugden. Counsel submitted that conduct and circumstances before the making of the Will is only relevant to a limited extent, namely, where it demonstrated a clear intention of the testator to make the dispositions contained in the Will. In the present case, it was contended, it is apparent from the face of the June Will that it was a careful and complete disposition of the deceased's estate. That Will followed the general format of each of the deceased's previous Wills, and made provision for each of those for whom the deceased felt a sense of responsibility. In particular, no legitimate claimant on his bounty was overlooked or disregarded. Accordingly, it was submitted, there is no occasion for the Court to have regard to any of the circumstances that existed before or at the time of execution of the Will.

29 Counsel further contended that the judge was correct to conclude that in determining whether the Will had been revoked, the Court confines its consideration to circumstances subsequent to the making of that Will. In particular, counsel relied on Cahill as authority for that proposition.

30 Accordingly, it was submitted, the judge was correct to refuse leave to the applicants to include the proposed amendments contained in paragraph 2(e)(i)-(x) of the proposed amended grounds of objection. It was contended that those paragraphs each sought to introduce wide ranging matters well beyond the scope of the first limb of inquiry, namely, whether the June Will was a careful and complete disposition of the testator's property. In particular, it was contended, those subparagraphs were an attempt by the applicants to demonstrate that there was insufficient justification for the testator to make the June Will in the first place. As such, they were not relevant to the question of whether the Will itself made a careful and complete disposition of the testator's property, which is the first test that needs to be addressed.

31 Counsel contended that the matters, contained in proposed ground 2(e)(i)-(iv), were a misconceived attempt by the applicants to argue that influence exerted by the first respondent (but falling short of undue influence) somehow might give rise to an inference of subsequent revocation of the June Will. Similarly, it was contended, the matters contained in proposed ground 2(e)(v) were irrelevant, other than in respect of the separate ground of undue influence.

32 Counsel further contended that proposed grounds 2(e)(vi) and (vii) were not relevant. The fact that the June Will made changes from the deceased's previous dispositions could not affect the likelihood of that Will being subsequently revoked. Similarly, it was contended that proposed ground 2(e)(viii) was irrelevant because it does not relate to the ground of presumed or inferred revocation. Counsel further contended that proposed ground 2(e)(ix) is inconsistent with the uncontradicted evidence of the first respondent that the deceased gave her the four page June Will, telling her at the time that it was his Will.

33 The decision, in respect of which the applicant seeks leave to appeal, is, of its nature, interlocutory. Ordinarily, in such a case, the Court will only grant leave to appeal where there is sufficient doubt attending the decision below, and substantial injustice would be done to the applicant were the decision to stand.[15]

34 In the present case, however, the decision, which is the subject of this application, went beyond deciding an issue of practice. In effect, the decision constituted the preliminary determination by the primary judge as to what facts and circumstances would be relevant and admissible, at the trial of the proceeding, in respect of the issue whether the deceased revoked the June Will. In that way, if the decision were to remain, and if it were incorrect, a manifest injustice would be occasioned to the applicants.

35 Before turning to the merits of the application, we note that, as the primary judge stated in her ruling, there may be a significant question at the trial of the proceeding whether the presumption of revocation is applicable in a case such as this, in which two original pages of the Will are in existence, combined with two photocopies of the missing third page. That question has not been raised for our consideration in this application, and it is better that it is determined at the trial of the action. For the purposes of determining this application, therefore, we will assume that (but not decide whether) the presumption does apply in such circumstances.

36 The competing submissions on this application raise the question whether facts and circumstances, that were antecedent to or contemporaneous with the execution of the missing Will, may be relevant in determining whether, after the execution of that Will, the deceased destroyed or disposed of the Will with an intention of thereby revoking it.

37 The presumption of revocation is a long-standing principle in the law of probate. In Welch v Phillips,[16] the testatrix made and published a Will in November 1820. Subsequently, she made a second Will in May 1825. At the time of her death, in 1833, the second Will could not be located. On appeal from the Prerogative Court of Canterbury, the Privy Council held that the presumption, that the Will of 1825 had been cancelled by the deceased, had not been rebutted. Parke B stated the relevant principles as follows:

Now the 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 that 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 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 a 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.[17]

38 In determining whether the testator had revoked the missing Will, particular importance is attached to the nature and contents of the document itself. In Sugden, Hannen P (at first instance) stated:

... it is obvious that the question whether or not the testator revoked this instrument must depend to a considerable degree upon what conclusion I may arrive at as to the contents of the instrument itself. It is obvious that where a Will, shewn to have been in the custody of a testator, is missing at the time of his death, the question whether it is probable that he destroyed it must depend largely upon what was contained in the instrument. Was it one arrived at after mature deliberation; did it deal with the interests of the whole of his family, carefully arranging the dispositions which he would make in favour of the several members of it, or was it the hasty expression of a passing dissatisfaction with some or more of them? These are questions naturally having the strongest possible bearing upon the ultimate question which I may have to determine, namely, whether or not the testator himself destroyed this instrument.[18]

39 The strength of the presumption of revocation may also depend on the nature of the testator's custody over the missing document. Obviously, if the testator was given to keeping the document under tight security, and it is missing at the time of his or her death, that circumstance would lend more heavily in favour of the presumption of revocation, than if the testator were lax about the manner in which he or she had kept and retained important documents such a will. Thus, in Sugden, Cockburn CJ stated:

Now, where a Will is shewn to have been in the custody of a testator, and is not found at his death, the well-known presumption arises that the Will has been destroyed by the testator for the purpose of revoking it, but of course that presumption may be rebutted by the facts. Although presumptio juris,[19] it is not presumptio de jure,[20] and of course the presumption will be more or less strong according to the character of the custody which the testator had over the Will.[21]

40 The principal question, which arises on this application, is whether, in determining whether a Will executed by a testator, which is missing at the time of the testator's death, was intentionally revoked by the testator, it is permissible to have regard to circumstances which existed before or at the time of the making of that Will.

41 As we have noted, the primary judge was of the view that matters, which were antecedent to or contemporaneous with the execution of the missing Will, may not be taken into account in determining whether, subsequently, it was destroyed by the testator with an intention of revoking it. The judge relied, principally, on the decision of Campbell J in Cahill as support for that proposition. As a consequence, her Honour excluded paragraph 2(e)(i)-(vi) and parts of paragraph 2(e)(ix) of the proposed amended grounds.

42 In support of the judge's decision, counsel for the respondent has contended that, in determining whether the presumption of revocation has been rebutted, a two-fold inquiry is undertaken. The first such inquiry, it was submitted, was whether the Will made a careful and complete disposition of the testator's property. It was contended that that issue was to be determined solely by reference to the contents of the Will, and not by reference to any facts or circumstances existing at the time of or before the execution of the Will. The second issue, it was submitted, was whether there were circumstances between the time of the making of the Will and the time of death that revealed any likely change in the testator's testamentary intentions so as to show that the testator had any reason to revoke the Will.

43 Before considering the authorities, and in particular Cahill, as a matter of basic principle, it is not evident why the inquiry, in such a case, must be restricted solely and exclusively to events which occurred after the execution of the missing Will.

44 At common law, and under s 55 of the Evidence Act 2008, subject to any established exclusionary rule, the fundamental principle is that evidence, that could rationally affect the assessment of the probability of the existence of a fact in issue, is relevant and admissible in the determination of the existence of that fact. As a matter of logic, it is clear that circumstances existing before or at the time of the execution of a missing Will may well bear on an assessment of the probabilities of the question whether, after executing that Will, the testator intentionally revoked it by destroying it.

45 In particular, it can be readily conceived that evidence of circumstances antecedent to, or contemporaneous with, the execution of the Will could be relevant to a number of issues involved in the determination of that question. By way of example, they include the following. It would be relevant to inquire whether the testator's custody of the missing Will was different to, or the same as, the manner in which the testator had kept custody of any previous Wills. Further, it would be relevant to know whether, in the past, the testator had been in the practice of making a new Will, whenever the testator formed the view that the existing Will did not adequately reflect his or her testamentary intentions. Indeed, in the present case, the first respondent will rely, at the trial, on the evidence that the deceased had a history of only revoking his earlier Wills by making a new Will.

46 More generally, the question whether the Will made a careful and complete disposition of the testator's property could only be realistically and properly assessed by reference to circumstances which existed at that time. In order to address that question, it may be necessary to have regard to the circumstances of the testator, and of those who might, at the time of the making of the Will, have had legitimate expectations to have a claim on the testator's bounty. For example, where the testator had a family member who was dependent upon the testator for maintenance and support, evidence as to the nature of that reliance, and as to the testator's recognition of it, may well be relevant to determining the question whether the missing Will made a careful and complete disposition of the testator's property.

47 In the course of argument, counsel for the respondent accepted - and indeed suggested - that it would be permissible, in an appropriate case, for the Court to take into account particular circumstances in which, and reasons why, the testator made the Will which subsequently went missing. For example, it was accepted that it might be permissible to take into account the fact that a Will was prepared and executed urgently before the testator underwent an important medical procedure.[22]

48 The question, then, is whether, notwithstanding those propositions, there is authority which constrains a Court to take into account, only, circumstances which occur subsequent to the execution of a missing Will in deciding whether that Will was subsequently intentionally revoked by the testator.

49 In determining that question in favour of the first respondent, the judge relied on the following passage from the judgment of Campbell J in Cahill:

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.[23]

50 On analysis, that passage from the judgment of Campbell J does not stand for the proposition that the Court is confined, exclusively, to a consideration of circumstances which post-dated the making of the missing Will, in determining whether it has been intentionally revoked by the testator. In that passage, Campbell J referred to an 'examination of the circumstances relevant to the deceased's testamentary intentions between the time of the making of [the] Will and the time of his death ...'. Campbell J did not, thereby, confine the evidence, relevant to that question, to evidence of circumstances that post-dated the making of the Will. Rather, and importantly, what is to be taken into account are the circumstances 'relevant to' the intentions of the deceased between the time of the making of the Will and the time of the testator's death. As we have discussed, circumstances which pre-dated or were contemporaneous with the making of the Will may well reflect on, and be relevant to, the deceased's testamentary intentions subsequent to the time of the making of the Will.

51 Further, the two authorities, referred to by Campbell J in that passage, do not support the proposition contended for by the first respondent, and relied upon by the primary judge.

52 In Finch v Finch,[24] the testator made a Will which left all his property to his daughter, excluding his son, who he regarded as a lazy individual. He told his daughter that he kept the Will in a particular drawer in his room. After his death, the son was alone in the room where the Will was kept. He was observed to leave that room while appearing to have something concealed under his coat. The Will was not found in the drawer. At the trial of the proceeding, the son, although challenged to explain his conduct, did not appear in Court and submit himself to cross-examination. In those circumstances, the Court was satisfied that the Will in fact remained in existence at the date of the testator's death, so that the presumption of revocation did not arise. Thus, the decision in that case did not support the proposition now contended for by the first respondent, and relied upon by the primary judge.

53 In Sugden, the testator executed a Will in 1867. He subsequently executed a further Will in 1870. That Will was last seen in August 1873. The testator died in January 1875. Hannen P (at first instance) held that the 1870 Will was duly executed and attested and found that the Will had not been intentionally destroyed or disposed of by the testator. In upholding that decision on appeal, the Court of Appeal expressly had reference to evidence of the habits and character of the testator both before and after the execution of the missing 1870 Will. Thus, Cockburn CJ stated:

Next comes the question whether it is or is not probable that the Will should have been destroyed by the testator, and here we must look at the position and character of the man. It would be difficult to find a more methodical man of business in the late Lord St Leonards; it would be difficult to find anyone who had a deeper sense to the importance of testamentary dispositions. We find that between 1867 and 1873 he made no less than two Wills and eight codicils. He always exhibited the greatest possible anxiety to make a proper provision for the members of his family ... It must be remembered that it is in the evidence that upon two occasions when he was making his Will, in 1867 and 1870, there was the greatest difficulty in prevailing upon him to take refreshment, because he would not be interrupted in the work, and he gave as a reason that, if anything should happen to him while the Will was, as it were, in suspense, questions might afterwards arise upon it.[25]

54 In the same way, in McCauley, the High Court took into account circumstances and conduct of the testator that pre-dated, and post-dated, the making of the missing Will. In that case, the testator made a Will in October 1907 in favour of the plaintiff for life, with the remainder to his godson and nephew, Desmond McCauley. After he died in June 1908, the original of that Will could not be found. In determining whether the presumption of revocation had been rebutted, the High Court took into account evidence as to the attitude by the testator to Desmond that pre-dated the making of the October 1907 Will. In particular, Griffith CJ noted that 'as early as 1906' the testator had expressed the intention of making a Will in favour of Desmond. He also took into account that the testator was aware that if he died intestate his share would go to his father, who he was concerned would dissipate it. Griffith CJ concluded:

Putting together all these facts - his affection for Desmond McCauley, his unwillingness to die intestate, the improbability of his changing his intention, his careless custody of documents, the probability of loss before 15th June, and his statement to Dr Connolly - I come to the conclusion that there is a higher degree of probability that the will was lost before that date than that it was destroyed by the testator with the intention of revoking it.[26]

55 Similarly, in upholding the decision of the primary judge that in the circumstances there was a high degree of probability that the Will was accidentally lost or destroyed, rather than intentionally destroyed, O'Connor J stated:

In taking that view he (the trial judge) arrived, in my opinion, at a right conclusion. The testator's affection for his godson and desire to benefit him by his Will goes back to 1906. It was frequently expressed to members of the family from that time until it resulted in the execution of the Will propounded, and the evidence satisfies me that that was his frame of mind when he left Sydney for Lismore.[27]

56 In In the Estate of Gibbs,[28] the deceased executed a Will in 1999. Subsequently in 2000 another Will was prepared for her. The original of that Will was lost. Gray J held that the original of the Will drafted in 2000 had existed and was duly executed. In the circumstances, his Honour found that the presumption of revocation was not rebutted, and the 2000 Will was presumed to have been destroyed by the deceased. In reaching that conclusion, the judge differentiated between the earlier 1999 Will and the 2000 Will. In particular, his Honour noted that the deceased's history of executing Wills in 1999 and 2000 suggested that she was prepared to vary her Will as circumstances changed. The judge also noted that the changes between the 1999 Will and the 2000 Will were perplexing. For those reasons, the judge concluded that the presumption of revocation was not rebutted.[29]

57 In Cahill, Campbell J derived the principles, on which he relied, from a passage in the unreported judgment of Powell J in Whiteley. In that case, the testator, who died in June 1992, had made a series of Wills, the last of which was executed in April 1991. After he died, that last Will could not be located. Powell J, having reviewed the evidence, held that in the circumstances of the case the presumption of revocation of the April 1991 Will was rebutted. In doing so, Powell J took into account evidence that reflected the intentions of the testator both before and after the making of the April 1991 Will. Thus his Honour stated:

... the question thus is, whether, in all the circumstances, the presumption of destruction, animo revocandi, ought to be regarded as having been rebutted.

In my view, the presumption ought so to be regarded. ... It is my view that the overwhelming effect of the evidence to which I have earlier referred - and which I accept as true - is that, as from about January 1991, the Deceased's testamentary intentions remained constant. That being so, and that Will making a complete disposition of the Deceased's Estate, it seems to me - particularly as the possibility of others having access to the studio during the Deceased's absence, or after his death, cannot be excluded - this is a case in which it is proper to say that the presumption is so weak as to not exist.[30]

58 Thus, a review of the decisions in Sugden, McCauley, Gray and Whiteley each reveal that, in determining whether the presumption of revocation has been rebutted in the case of a missing Will, the Courts have taken into account circumstances existing at and before the time of the execution of the missing Will. As we have discussed, there are manifold reasons why such an inquiry would, logically, be relevant to the question whether, after the Will was executed, it was subsequently destroyed or disposed of by the testator with the intention of thereby revoking it. In that way, both authority and principle strongly favour the view, which we accept, that in determining whether, in a particular case, the presumption of revocation has been rebutted, or in determining whether an inference of intentional revocation should be drawn, the Court should take into account all relevant circumstances, including circumstances that existed before and at the time of the making of the Will that is missing.

59 Counsel for the first respondent contended that the test, postulated by him, and comprising a two stage process, has been quoted and applied in a number of subsequent cases.[31] However, on analysis, none of the cases, referred to by counsel, either stated or applied that test. In each of the cases referred to by counsel, the Court cited, and applied, the passage from the judgment of Campbell J in Cahill[32] relied on by the primary judge. However, in each case, the Court did not interpret or restate the test in the terms contended for by counsel for the first respondent. Nor was Cahill considered, in any of those cases, to be authority for the proposition relied on by the primary judge, namely, that in considering whether the presumption of revocation has been revoked, the Court is confined exclusively to circumstances that post-date the making of the missing Will.

60 It is correct that, in each of those cases, the focus of the Court was on the period between the date of the execution of the missing Will and the date of death. That focus is understandable, as in four of the cases referred to that period was quite lengthy - in Re Moschoudis it was twelve years, in Ponikvar fourteen years, in Nicholls fifteen years, and in Stevens fifteen years. However, the fact that, in those cases, the focus was primarily on the period between the date of the Will and the date of death did not have the consequence that the Court either considered, or acted on the basis that, circumstances preceding or at the time of the making of the missing Will were irrelevant.

61 Indeed, in two of the cases cited by counsel for the first respondent, the Court did consider and take into account circumstances that predated the making of the missing Will. In Re Moschoudis, McMillan J took into account, as relevant, the circumstance that the missing Will had been prepared by the solicitor and executed by the deceased as a matter of urgency before the deceased underwent a medical procedure.[33] In Lawrence, the testator made Wills in 2007, 2008 and 2009. After he died in June 2011, the original of the 2009 Will could not be located. There was a carbon copy of that Will in existence. Young AJA held that the facts and circumstances of the case demonstrated that the presumption of revocation was rebutted. In reaching that conclusion, he took into account that the testator had been very conscious that he should not die intestate, and that he was 'almost obsessive' about making Wills.[34]

62 It follows, from the foregoing analysis, that both authority and principle support the proposition, contended for by the applicants, that in determining whether the presumption of revocation is rebutted, or in determining whether in all the circumstances the Court should infer that the testator has intentionally revoked a Will, the Court may have regard to relevant facts and circumstances existing at or before the time of the making of the lost Will.

63 Bearing that principle in mind, we turn, then, to the proposed grounds of objection excluded by the primary judge.

64 As we have noted, the judge excluded the grounds contained in paragraph 2(e)(i) to (vii) on the basis that they related to matters that were antecedent to the making of the June Will. As we have discussed, that circumstance would not preclude a court from having regard to those facts if they were otherwise relevant. The matters contained in paragraph 2(e)(i) to (iv) relate primarily to the nature of the relationship between the deceased and the first respondent. While those matters may be relevant to the question of undue influence, that circumstance does not preclude them also having some relevance to the issue of whether the June Will was intentionally revoked by the deceased. In our view, the nature of the relationship between the deceased and the first respondent is relevant to that issue. In combination with other matters sought to be relied on by the respondents, it is, logically, capable of supporting the proposition that, at some time after he had executed the June Will, the deceased may have had reason to have second thoughts about some of the dispositions that he had made in it in favour of the first respondent. Whether such an inference might be drawn is a matter for the judge who hears the trial of the proceeding. However, the circumstances set out in those subparagraphs are capable of bearing on that issue.

65 Similarly, the matters contained in paragraph 2(e)(v), in combination with other factors, may also have some relevance to the issue just discussed. The deceased's circumstances and health at the time of the making of the June Will, in combination with the matters relating to his relationship with the first respondent, are capable of bearing rationally on the probabilities of the question whether, subsequently, the deceased intentionally revoked the June Will.

66 The matters stated in paragraph 2(e)(vi) and (vii) are clearly relevant. As counsel for the applicants has contended, they provide a context to the matters contained in paragraph 2(e)(xi), which the judge permitted to be included in the proposed grounds.

67 The matters set out in paragraph 2(e)(viii) are not controversial. They are capable of rationally affecting the probabilities of whether, subsequent to making the June Will, the deceased intentionally revoked it.

68 The matters contained in paragraph 2(e)(ix) are also relevant. The manner in which the deceased otherwise maintained custody of important documents is capable of supporting the conclusion that the fact, that the third page, being the attestation page, of the Will, was missing, was not due to any accident or careless omission by the deceased.

69 Paragraph 2(e)(x) essentially repeats the matters contained in paragraph 2(a), which the judge had ruled to be a permissible particular of the ground of revocation. In paragraph 2(a), the particular is used as a basis to give rise to the presumption of revocation. In paragraph 2(e), it is used to support the presumption, or in the alternative to support the inference, that the deceased revoked the Will. For that reason it is appropriate that it be repeated in paragraph 2(e)(x).

70 It follows from the foregoing, that we conclude that the judge did not have an appropriate basis upon which to exclude, from the grounds of objection based on revocation, the matters contained in paragraph 2(e)(i) to (x) of the proposed further amended caveators' grounds of objection.

71 Accordingly, the applicants should be granted leave to appeal, and the appeal should be allowed. Paragraphs 1 and 2 of the Orders made by the primary judge dated 28 May 2018 should be set aside, and, in lieu, the applicants be granted leave to amend the Amended Grounds of Objection in accordance with the Proposed Further Amended Grounds of Objection dated 31 July 2017.

[1] Re Demediuk [2016] VSC 587.

[2] Re Demediuk (No 2) [2017] VSC 236.

[4] Re Demediuk (No 3) [2018] VSC 86 ('Reasons').

[6] [2002] NSWSC 561 ('Cahill').

[12] (1876) LR 1 PD 154, 176 ('Sugden').

[13] [1910] HCA 16; (1910) 10 CLR 434, 438 ('McCauley').

[14] (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993) ('Whiteley').

[15] Niemann v Electronic Industries Limited [1978] VicRp 44; [1978] VR 431, 433 (McInerney J); Swan Hill Chemicals Pty Ltd v MA & J Tripodi Pty Ltd [2016] VSCA 264 [21]-[22].

[16] [1836] EngR 1157; (1836) 1 Moo PCC 299. See also Colvin v Fraser 2 Hag 266, 325; McCauley [1910] HCA 16; (1910) 10 CLR 434, 438 (Griffith CJ), 446 (O'Connor J), 451 (Isaacs J); Sugden (1876) LR 1 PD 154, 217 (Cockburn CJ), 231 (Jessel MR).

[17] Welch v Phillips [1836] EngR 1157; (1836) 1 Moo PCC 299, 302-303.

[18] Sugden (1876) LR 1 PD 154, 176.

[19] A legal presumption ordinarily rebuttable.

[20] A legal presumption that is so powerful that it is not ordinarily rebuttable.

[21] (1876) LR 1 PD 154, 217-18. See also McCauley [1910] HCA 16; [1910] 10 CLR 434, 438 (Griffith CJ); Cahill [2002] NSWSC 561 [59] (Powell J); Whiteley (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993) at 27.

[22] Re Moschoudis [2016] VSC 139 [61].

[23] [2002] NSWSC 561 [68]

[24] (1867) LR 1 PD 371.

[25] Sugden (1876) LR 1 PD 154, 218-19. See also at 232 (Jessel MR).

[26] McCauley [1910] HCA 16; [1910] 10 CLR 434, 441.

[27] Ibid 448. See also at 454 (Isaacs J).

[28] [2012] SASC 230; (2012) 115 SASR 182.

[30] Whiteley (Unreported, Supreme Court of New South Wales, 13 May 1993) [30].

[31] Re Moschoudis [2016] VSC 139 [15], [59]; In the Estate of Frances Ponikvar (deceased) [2016] SASC 95 [22] ('Ponikvar'); In the Estate of Nicholls [2014] SASC 204 [14]; In the Estate of Sheila Ann Stevens (deceased) [2014] SASC 78 [53] (Bampton J) ('Stevens'); Lawrence v Australian War Memorial [2014] NSWSC 757 [45] (Young AJA) ('Lawrence').

[32] Cahill [2002] NSWSC 561 [68].

[33] Re Moschoudis [2016] VSC 139 [51].

[34] Lawrence [2014] NSWSC 757 [45].