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[2025] NSWCA 256
respondent. Appeal dismissed with costs: [42]. Payne JA and Kirk JA agreed with Bell CJ: [43]-[44].
2 cited instruments linked from this judgment.
The missing original did not, by itself, establish that the deceased had destroyed her Will intending to revoke it. The evidence did not show that she had last possessed the original. In any event, her later conduct, including describing the Will as current shortly before her death, contradicted an intention to revoke it. The Court therefore dismissed the appeal against probate of a copy of the Will.
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2,159 words · generated 06/10/2026
Mimi Milka Berger died on 10 November 2022, aged 86. She had no children, and her siblings had predeceased her. Her estate was valued at more than $24 million as at 28 February 2025. The appeal concerned whether a copy of her 2015 Will could be admitted to probate when the original could not be found, and whether the missing original meant she should be treated as having died intestate. The Court of Appeal’s reasons are given by Bell CJ, with Payne JA and Kirk JA agreeing: [1]-[3], [43]-[44].
The Will was executed on 22 May 2015 and complied with the formal requirements in s 6 of the Succession Act 2006 (NSW). It left the deceased’s art collection to her grandnephew, Dusko Dundjerski, and divided the residue between Dusko and his mother, Bozica Dundjerski. Dusko and Bozica were appointed joint executors: [3]. The judgment also refers to people who had been told by the deceased about the Will and her intended distribution: [4].
The evidence about the original’s whereabouts was central. In 2017, the deceased asked Ms Leggat for a copy of the Will, then mailed a copy to Bozica in Switzerland. Bozica made another copy and gave it to Dusko: [5]. In 2018, when the deceased’s new solicitor, Marc O’Brien, said he had a copy but could not locate the original, the deceased said she believed the original was with Nicole Leggat and Associates and that she would contact them: [26]. The judgment records that, during a 2018 hospitalisation, she told Dusko to call Mr O’Brien if anything happened to her because he had her last will: [27].
In June 2022, while in hospital, the deceased signed an unwitnessed document headed “Codicil to my last will and testament”. It proposed giving a property at 113A Commonwealth Street, Surry Hills, to neighbours Srdja and Gordana Jankovic. She later instructed a new solicitor, Mr Bryant, about amending her Will, but did not execute the resulting draft before her death: [6]-[9]. In July 2022, when Mr Bryant asked whether she had a current will, she said yes and said it was held by Mr O’Brien: [37].
After the original Will could not be found, Dusko sought probate of a copy, alongside an application relating to the Codicil. Branka Jaksic-Repac argued that the deceased had destroyed the original intending to revoke it, and therefore died intestate. The primary judge rejected that argument, admitted a copy of the Will to probate, and gave effect to the Codicil under s 8 of the Act: [12]-[15]. Branka appealed. The Court of Appeal dismissed the appeal with costs: [16], [42].
The Court set out two requirements for the presumption of revocation by destruction. The original will must be missing despite a diligent search, and it must have been last traced to the testator’s possession. If those conditions are met, the law presumes, as a matter of fact, that the testator destroyed the will intending to revoke it. The presumption is rebuttable: [18]. Section 11(1)(e) of the Act was relevant because it provides for revocation by destruction where the required intention to revoke accompanies the act: [18].
Bell CJ treated the “last traced” question as anterior to whether the presumption should arise. If the original remained at a solicitor’s office or with another custodian and the testator never took possession of it, the presumption would not be engaged: [22]. The evidence did not establish that the deceased received or held the original. Mr Campbell, who prepared the Will, could not recall handing it over or retaining it. The firm’s records could not locate the original or a record of it being given to the deceased: [23]-[24].
Other evidence pointed away from the deceased having the original. She asked for a copy in 2017, which Bell CJ considered capable of supporting the inference that she did not have the original: [25]. In 2018 she identified the former firm as the likely holder. She later told Dusko that Mr O’Brien had her last will, and, in July 2022, told Mr Bryant the same: [26]-[28], [37]. The evidence about the former firm’s record-keeping did not resolve whether it had retained or released the original: [30]-[31]. Bell CJ concluded that Branka had not demonstrated that possession of the original was last traced to the deceased: [32].
The Court then considered the alternative. Even if the presumption had arisen, Bell CJ agreed with the primary judge that it was rebutted: [33]. The legal question was not merely whether the original might have been destroyed, but whether the evidence supported destruction with an intention to revoke. The reasons note that facts may rebut the presumption where, on the balance of probabilities, they create a higher degree of probability to the contrary, whether concerning destruction itself or the intention to revoke: [21].
Several features supported that conclusion. The Will was professionally prepared and made detailed provision for the estate. The Codicil referred to the Will and to it being held by Mr O’Brien. The deceased’s stated plan to leave the Surry Hills property to the Jankovics, while leaving the rest to Bozica and Dusko, was consistent with the Will and proposed Codicil being read together: [34]. Bell CJ added the deceased’s 2017 mailing of a copy to Bozica, and her 2018 request that more copies be made and kept safely: [36]. Most directly, shortly before death she described her will as current and identified where it was held: [37]. Bell CJ regarded speculation that she had destroyed the original after 2018 as inconsistent with that later exchange: [37]-[38].
The Codicil did not change the result on intestacy. Bell CJ noted that the primary judge’s conclusion under s 8(2) had not been effectively challenged. But once the presumption was found not to apply, or alternatively to be rebutted, the Codicil’s validity was not relevant to Branka’s contention that the deceased died intestate: [40]-[41].
The reasons present the governing presumption as an established rule, not a new legal test. Bell CJ states that the relevant principles were not in dispute: [17]. The judgment applies authorities including Sugden v Lord St Leonards, Bar-Mordecai v Rotman, Whiteley v Clune (No 2), Cahill v Rhodes, McCauley v McCauley and Demediuk v Demediuk: [18]-[20]. It does not purport to overrule or disapprove those authorities.
The judgment’s practical contribution is its application of the threshold condition to a contested evidential record. It emphasises that non-production of the original alone does not establish that it was last in the testator’s possession. Evidence about who held the document, what the testator said about its location, and the reliability of records about custody can determine whether the presumption is available at all: [22]-[32].
The reasons also illustrate the separate role of rebuttal. Even where the presumption is assumed to arise, the Court considers evidence of the testator’s later conduct and statements, including statements that the will remained current, to assess whether the presumption has been displaced: [33]-[39]. The judgment therefore distinguishes the threshold inquiry, whether possession was last traced to the testator, from the alternative inquiry, whether the presumption is rebutted.
There is no indication in the judgment that the state of the law changed after this decision. The Court affirmed the dismissal of the appeal and applied the existing principles to the facts. Nor does the supplied judgment provide a later appellate history of this decision. Any assessment of later legal developments would require sources beyond this judgment.
At [18], Bell CJ states that the presumption arises when the original cannot be found after diligent search and “the will was last traced to the testator’s possession”. In plain English, a missing original is not enough by itself. There must also be a basis for finding that the testator had the original last.
At [22], Bell CJ explains that the presumption would not apply if the testator never took possession because the original remained with a solicitor or another custodian. This identifies the factual gateway to the presumption. The question is not simply who had a copy, but who had custody of the original.
At [32], Bell CJ concludes that the deceased’s dealings with her solicitors were “quite inconsistent with her ever being in possession of the Original following its execution”. In practical terms, her requests for copies and her repeated references to a solicitor holding the will supported the conclusion that the original had not been shown to be in her custody.
At [37], the deceased’s reported exchange with Mr Bryant is significant. Asked whether she had a current will, she answered yes, and identified Mr O’Brien as holding it. The Court treated that statement, made only months before her death, as inconsistent with an intention to revoke the Will.
At [41], Bell CJ says the Codicil’s efficacy was not relevant to the intestacy argument once the presumption was found not to apply or to have been rebutted. In plain English, the appeal’s central intestacy issue could be resolved without deciding the dispute about the Codicil’s effect.
The judgment is relevant to disputes where a formally executed will’s original is missing after the testator’s death, a copy exists, and a party contends that the testator destroyed the original intending to revoke it. The threshold issue will be whether the original was last traced to the testator’s possession: [18], [22].
The factual circumstances highlighted by this case include uncertainty about whether a solicitor retained the original, incomplete or inconclusive custody records, and evidence that the testator believed the original remained with a solicitor: [23]-[32]. The judgment also shows the potential significance of a testator asking for copies, sending copies to family, or discussing where testamentary documents are held: [25]-[27], [36]-[37].
The rebuttal analysis may be relevant where the testator’s later statements and actions are inconsistent with revocation. Here, the deceased sent a copy to a beneficiary, asked that further copies be kept safely, and shortly before death described her will as current: [36]-[38]. The judgment does not say that any one of these facts will invariably be decisive. It evaluates them together with the evidence about custody and the contents of the Will.
The decision also involves an unwitnessed document intended to affect a will. Its treatment is limited in this appeal: Bell CJ noted the primary judge’s s 8(2) conclusion and that no effective challenge to it was made, but held that the issue did not matter to the intestacy contention once the revocation presumption failed: [40]-[41]. The judgment should not be read as a general ruling on every question arising from informal testamentary documents.
The supplied judgment does not identify any later decisions considering or applying Jaksic-Repac v Dundjerski. It therefore provides no source-grounded basis to describe subsequent treatment of this case.
The judgment does identify authorities that informed Bell CJ’s analysis. Sugden v Lord St Leonards, Bar-Mordecai v Rotman and Whiteley v Clune (No 2) are cited for the presumption and related principles: [18]. Rotman, Cahill v Rhodes, Sugden, McCauley v McCauley and Demediuk v Demediuk are cited regarding the significance of custody arrangements and care of the will: [19]. Clines v Johnston and Taylor v Waters are cited concerning the nature of the will and the strength of the presumption: [20]. These citations show the authorities Bell CJ considered, not later treatment of the present decision.
The judgment does not resolve how the presumption would apply where there is stronger evidence that the testator received the original, but the subsequent custody history is unclear. The Court’s conclusion turned on the particular evidence that the deceased repeatedly identified solicitors as holding her will, coupled with the inconclusive office records: [23]-[32].
Nor does the decision prescribe a general standard for what constitutes a “diligent search”. The requirement is stated at [18], but the reasons focus on whether the original was last traced to the deceased, rather than setting out a detailed search protocol.
The judgment also does not quantify how much weight particular forms of evidence should receive in other cases. It identifies custody arrangements, the nature of the will, declarations by the deceased and conduct after execution as relevant matters: [19]-[21], [34]-[39]. The force of each item will depend on the evidence in the case being considered.
Finally, the appeal did not require the Court to determine the Codicil issue as a contested question between competing beneficiaries. Bell CJ recorded that the primary judge’s s 8(2) reasoning was not effectively challenged and that the Codicil was irrelevant to the intestacy contention on the Court’s findings: [40]-[41]. The judgment therefore leaves broader questions about informal testamentary documents outside the scope of its decision.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Jaksic-Repac v Dundjerski [2025] NSWCA 256
Hearing dates: 26 November 2025
Date of orders: 02 December 2025
Decision date: 02 December 2025
Before: Bell CJ at [1];
Payne JA at [43];
Kirk JA at [44].
Decision: Appeal dismissed with costs.
Catchwords: SUCCESSION – Probate and administration – Missing original will – presumption of revocation by destruction – testator assumed the original was held by solicitors – testator assumed the will remained current – presumption not engaged – presumption rebutted in any event.
Legislation Cited: Succession Act 2006 (NSW) s 6, 8, 11, 15
Cases Cited: Bar-Mordecai v Rotman [2000] NSWCA 123
Cahill v Rhodes [2002] NSWSC 561
Clines v Johnston [2008] NSWSC 524
Demediuk v Demediuk [2019] VSCA 79
McCauley v McCauley (1910) 10 CLR 434; [1910] HCA 16
Sugden v Lord St Leonards (1876) LR 1 PD 154
Taylor v Waters (Supreme Court (NSW), 19 June 1992, unrep)
Whiteley v Clune (No 2); The Estate of Brett Whiteley (Supreme Court (NSW), 13 May 1993, unrep)
Category: Principal judgment
Parties: Branka Jaksic-Repac (Appellant)
Dusko Dundjerski (Respondent)
Representation: Counsel:
C Vindin with M Mando (Appellant)
S Chapple SC with D Yazdani (Respondent)
Solicitors:
Novakovic Lawyers (Appellant)
H+A Legal (Respondent)
File Number(s): 2025/00153997
Publication restriction: N/A
[This headnote is not to be read as part of the judgment]
The late Mimi Milka Berger (née Jaksic) (the Deceased) died on 10 November 2022 in New South Wales at the age of 86. The Deceased left behind an estate worth $24 million, comprising predominantly real property but also cash and her art collection (the Estate). She was divorced in 1995 and had no children. Her only surviving family members were a number of nieces and nephews. One of those was the Appellant, Branka Jaksic-Repac (Branka). The Respondent, Dusko Dundjerski (Dusko), was the Deceased’s grandnephew.
The Deceased validly executed a will on 22 May 2015 (the Will), which left all of her art collection to Dusko, and divided the balance of the Estate between Dusko and his mother, Bozica Dundjerski (Bozica), one of the Deceased’s nieces. Dusko and Bozica were appointed joint executors under the Will. On 14 June 2022, while in hospital, the Deceased signed a document headed “Codicil to my last will and testament of Mimi Jaksic Berger” (the Codicil) which left her property at 113A Commonwealth Street, Surry Hills (the Surry Hills Property) to her neighbours and close friends, Srdja and Gordana Jancovic. The Codicil was not witnessed, the Deceased not trusting the hospital staff to do so.
Upon the Deceased’s death, the original of the Will (the Original) could not be found. Neither the Deceased nor any of her lawyers recalled seeing the Original after the execution of the Will. Consequently, Dusko commenced proceedings seeking to have a copy of the Will, as well as the Codicil, admitted to probate. Branka maintained that the Deceased died intestate, arguing that because the Original could not be found, it should be presumed that the Deceased had destroyed it with the intention of revoking it (i.e. applying the “presumption of revocation”).
The primary judge admitted the Will to probate, finding that the presumption of revocation (i) did not apply in circumstances where it was not established that the possession of the Original could be last traced to the Deceased, and (ii) was rebutted in any event. His Honour also admitted the Codicil to probate even though it had not been properly executed on the basis, in accordance with s 8 of the Act, that the Deceased intended it to form an alteration to the Will.
On appeal, Branka sought to have both probate orders set aside, as well as a declaration that the Deceased died intestate, and an order that the administration of the Estate be granted to her.
The Court (Bell CJ, Payne JA and Kirk JA agreeing) held, dismissing the appeal:
Sugden v Lord St Leonards (1876) LR 1 PD 154; Bar-Mordecai v Rotman [2000] NSWCA 123; Whiteley v Clune (No 2); The Estate of Brett Whiteley (Supreme Court (NSW), 13 May 1993, unrep); Cahill v Rhodes [2002] NSWSC 561; McCauley v McCauley (1910) 10 CLR 434; [1910] HCA 16; Demediuk v Demediuk [2019] VSCA 79; Clines v Johnston and Anor [2008] NSWSC 524; Taylor v Waters (Supreme Court (NSW), 19 June 1992, unrep), cited.
BELL CJ: The late Mimi Milka Berger (née Jaksic) (the D****eceased) died on 10 November 2022 in New South Wales at the age of 86. A successful artist and businesswoman, she left an estate worth in excess of $24 million (as of 28 February 2025), comprising predominantly real property but also cash and her art collection (the E****state). One of the properties forming part of the Estate was in Commonwealth Street, Surry Hills (the Surry Hills Property). The relevance of that will become clear later in these reasons.
The Deceased divorced her husband in 1995 and had no children. All of her siblings predeceased her. She had a number of nieces and nephews, children of her siblings. One of those was the Appellant in these proceedings, who was the fifth defendant/cross claimant in the proceedings at first instance, Branka Jaksic-Repac (Branka or the Appellant).
The Deceased executed a will on 22 May 2015 (the Will), having met with Mr Bradley Campbell, a solicitor at the offices of Leggat & Associates (Leggat & Associates) for the purposes of executing it. The Will fully complied with the formal requirements specified in s 6 of the Succession Act 2006 (NSW) (the Act). Under the Will, all of the Deceased’s artworks were left to Dusko Dundjerski (Dusko), the Deceased’s grandnephew, with the balance of the Estate divided equally between Dusko and his mother, Bozica Dundjerski (Bozica), one of the Deceased’s nieces. Dusko and Bozica were appointed joint executors under the Will. Both reside in Switzerland.
Various witnesses gave evidence at trial of having been informed by the Deceased of the existence of the Will and her plans to distribute the Estate between Dusko and/or Bozica. Such people included Bozica herself, Ms Maria Lazaros, a practice manager of an accounting firm professionally acquainted with the Deceased, and Mr Dragan Radovic, a close friend of the Deceased for 20 years before she died.
On 1 March 2017, in response to a request of the Deceased, Ms Leggat of Leggat & Associates provided her with a copy of the Will, Mr Campbell previously having left the firm. The Deceased mailed a copy of the Will to Bozica in Switzerland, who received it in March 2017, and made a copy of it which she gave to Dusko. Mr Radovic gave evidence that he was told by the Deceased that she had sent a copy of the Will to Bozica.
The Deceased was hospitalised in May 2022 after falling and breaking her arm. At that time, the Deceased shared with one of her neighbours, Srdja Jankovic (Srdja), her intention to leave him and his wife Gordana the Surry Hills Property on account of their spiritual connection and close friendship.
“1. I leave my real estate located at 113A Commonwealth Street Surry Hills NSW to Srdja and Gordana Jankovic of XX XXXX Road Rockdale NSW.
- I hereby confirm and republish my Last Will kept by Marc O’Brien, of Redmond Hale Simpson solicitors, in all respects other than those mentioned here.
IN WITNESS WHEROF, I have signed my name on this 14th day of JUNE 2022.”
“I will sign it for you so that you have proof of my decision, but, sorry, I cannot use hospital staff to witness it. I do not want them to know that I have properties. I do not trust them to know that I have properties. They can charge me for all my staying in the hospital. You saw that they already charge me $365.00 to remove cast from my arm. I heard a number of stories where older people lost their properties when not being careful. I am out of the hospital in two weeks and we will go to the solicitor and I will amend my will with my decision to leave to you and Gordana the house at 113A Commonwealth Street Surry Hills. Is this OK with you?”
The Deceased, following her discharge, did go to a new solicitor, Mr Bryant, to amend the Will and gave instructions consistent with the proposed gift of the Surry Hills Property to Srdja and Gordana. She had not executed that amended will prior to her death, though Mr Bryant did send a draft to her which was in evidence.
On 22 May 2023, more than 6 months after the death of the Deceased, Branka and a number of her relations (her sibling and numerous cousins), lodged a caveat in the following terms:
“We require that:
- No grant of probate or reseal be made in the estate of Mimi Milka Jaksic Berger late of Arncliffe NSW, painter/artis[t] who died on 9 November 2022 without prior notice to me.
Our interest is:
- We are ones amongst the next of kinds entitled under intestacy as the deceased did not have children nor husband and or de facto partners that survived the deceased.
- The deceased was unduly influenced at about the time will 25 May 2015 was made.
- Interest under the trust for the beneficiaries (including ourselves) of the estate where neither probate nor letters of administration is granted yet.”
Notwithstanding its terms, no claim of undue influence ever appears to have been pursued. Indeed, Senior Counsel for Branka expressly disavowed such a claim at first instance.
Central to the proceedings at first instance, however, was the fact that following the Deceased’s death, the original of the Will (the Original) could not be found. Thus it was that, when Dusko commenced proceedings in the Equity Division, apart from seeking the withdrawal of the caveat, he also sought orders in the following terms (with emphasis supplied and noting that prayer 4A was subsequently added by amendment):
“2. An order pursuant to the section 8 of the Succession Act 2006 that the document dated 14 June 2022 signed by Mimi Milka Jaksic Berger (the deceased) was intended by Mimi Milka Jaksic Berger to form an alternation to her will dated 22 May 2015.
- An order that probate of the copy will dated 22 May 2015 of Mimi Milka Jaksic Berger and the document dated 14 June 2022 be granted to the plaintiff limited until the original will is proven.
- In the alternative to 3, an order that probate in solemn form of the copy will dated 22 May 2015 of Mimi Milka Jaksic Berger and the document dated 14 June 2022 be granted to the plaintiff.
4A. In the further alternative, an order that probate in solemn form of the copy will dated 22 May 2015 of Mimi Milka Jaksic Berger be granted to the Plaintiff.”
Branka, by way of cross claim, maintained that the Deceased died intestate and sought an order that the administration of the intestate estate be granted to her. The essence of her contention was that, because the Original could not be located, it should be presumed that the Deceased had destroyed it with the intention of revoking it.
The primary judge held that no such presumption was engaged and that, even if it were, it was rebutted in all the circumstances of the case. Accordingly, his Honour set aside the caveat and granted probate of the copy of the Will on the application of Dusko as executor. He also gave effect to the Codicil even though it had not been properly executed on the basis, in accordance with s 8 of the Act, that the Deceased intended it to form an alteration to the Will: The Estate of Mimi Milka Jaksic (Berger) [2025] NSWSC 253 (PJ or primary judgment).
It is from that decision that the appeal is brought. Branka seeks to have both probate orders set aside, a declaration that the Deceased died intestate, an order that the administration of the Estate be granted to her, as well as costs in the Court below and of the appeal.
For the reasons given below, the appeal should be dismissed with costs.
The relevant principles were not in dispute either at first instance or on appeal.
Where a will (meaning the original and not secondary evidence of it such as a copy will) cannot be found upon a testator’s death despite a diligent search, and provided the will was last traced to the testator’s possession, a rebuttable presumption of fact arises that the will was destroyed with the intention of revoking it: Sugden v Lord St Leonards (1876) LR 1 PD 154 (Sugden); see also Bar-Mordecai v Rotman [2000] NSWCA 123 at [135] (Rotman); Whiteley v Clune (No 2); The Estate of Brett Whiteley (Supreme Court (NSW), 13 May 1993, unrep) (Whiteley). In this context, it should be noted that s 11(1)(e) of the Act provides that the whole or any part of a will may be revoked but only “by the testator, or by some person in his or her presence and by his or her direction, burning, tearing or otherwise destroying the will with the intention of revoking it" (emphasis added).
The strength of the presumption depends on the character of the testator’s custody of the will, including the physical arrangements the testator has in place for it, who knows or has access to it, and the degree of care taken in looking after it: Rotman at [136]; Cahill v Rhodes [2002] NSWSC 561 at [59] (Cahill); Sugden at 217-8; see also McCauley v McCauley (1910) 10 CLR 434 at 438; [1910] HCA 16; Demediuk v Demediuk [2019] VSCA 79 at [39].
The strength of the presumption also depends on the nature of the will itself: Rotman at [136]; Clines v Johnston and Anor [2008] NSWSC 524 at [9]; Taylor v Waters (Supreme Court (NSW), 19 June 1992, unrep). In Cahill at [58], Campbell J quoted Powell J’s enumeration of the following four principles in Whiteley:
“1. although, where a Will is traced into the possession of the testator and is not forthcoming on his death, there is a presumption that he destroyed it animo revocandi, the presumption may be rebutted;
2. the strength of the presumption depends upon the character of the testator's custody over it (Sugden v Lord St Leonards (1876) LR 1 PD 154; Allan v Morrison [1900] AC 604; McCauley v McCauley (1910) 10 CLR 434);
3. where the Will makes a careful, and complete, disposition of the testator's property, and there are no other circumstances to point to a probable destruction, animo revocandi , by the testator, the presumption is so slight that it may be said not to exist (Sugden v Lord St Leonards (supra); Finch v Finch (1867) LR 1 P and D 371);
4. where a Will is lost or destroyed, and the presumption of destruction, animo revocandi, either, does not arise, or, is rebutted, its contents may be proved by parol evidence. The “rules” laid down in Sugden v Lord St Leonards (supra) are as follows: -
a. the contents of any lost instrument, including a Will, may be proved by secondary evidence;
b. written and oral declarations of a testator made before, or after, the execution of the Will are admissible as secondary evidence of its contents;
c. the evidence of a single witness, although interested, is admissible to prove the contents if his veracity and credibility are unimpeached;
d. Probate may be granted of so much of the contents as may be proved, even though proof is not available of the entirely.
It should, however, be noted that, at least insofar as (b) and (d) are concerned, Sugden v Lord St Leonards (supra), although not overruled, has not escaped criticism (Woodward v Goulstone (supra); Atkinson v Morris [1897] P 40) so that it is improbable that the ‘rules’ will be extended.”
“The presumption will be rebutted where other facts (or inferences drawn from them) raise, on the balance of probabilities, a higher degree of probability to the contrary: McCauley v McCauley (1910) 10 CLR 434 at 438, 440. The contrary can be either as to the destruction itself or as to the presence of intention to revoke.”
Last traced
The proviso to the engagement of the presumption is important. Thus, the original of the will in question must be “last traced” to the testator’s possession. The presumption would thus not be engaged if it were established, for example, that the testator never took possession of the original because it was retained at a solicitor’s office or was left with some other custodian. This is an anterior question of fact. It was answered against the Appellant in the present case.
The primary judge accepted the evidence of Mr Campbell that he did not recall handing over any original documents or retaining any original documents after the signing of the Will. Mr Campbell left Leggat & Associates on 31 March 2016 and did not have access to any files of the firm after that.
Leggat & Associates was wound up on 31 March 2016 following Mr Campbell’s departure. The primary judge noted at PJ [29] that Ms Leggat had “undertaken a thorough review of her electronic and hard copy files and [could not] locate the original Will” or, equally importantly, “any record of it being provided to the deceased.”
In about February 2017, the Deceased called Ms Leggat and requested a copy of the Will. It may be inferred that the Deceased would not have done so had the Original been (or remained) in her possession.
In 2018, after the Deceased instructed a new solicitor, Marc O’Brien, to request her lease files and testamentary documents from Ms Leggat and he received them, the following exchange occurred (which the primary judge accepted):
“O’Brien: I’ve got a copy of your will in the file, but I could not locate the original. Do you know where the original is?
Deceased: I believe the original is with Nicole Leggat and Associates. I will contact them to see where it is.”
Whether the Deceased’s belief was accurate or not, this was powerful evidence that she did not have possession of the Original and, coupled with the observation made in [25] above, was capable of sustaining a conclusion that the Original could not be “last traced” into the possession of the Deceased.
When the Deceased was hospitalised in 2018, she told Dusko “if something happens to me call Marc O’Brien, he is my lawyer…He has my last will”: PJ [28].
The primary judge also noted that on 18 July 2022, the Deceased told her new solicitor, Mr Bryant, that her will was held by Mr O’Brien (see [37] below), and, sometime in July 2022, she had also told Gordana the same thing.
This short recitation of the evidence sustains the primary judge’s stated lack of satisfaction that the presumption was engaged.
The primary line of attack on this conclusion in the appeal was by reference to evidence of office practice at Leggat & Associates but that evidence was, with no disrespect to Mr Campbell and Ms Leggat, who gave it, quite inconclusive. Thus, Mr Campbell was cross-examined as follows:
“Q. Would it be the case, going back to your recollection as an employee or an officer of the firm, that there was some form of wills register or similar register for important documents?
A. There was a list of original documents retain in the office, but there were not a lot of original documents retained, as far as I could remember.
Q. If appropriate, that list or register identified the nature of the document being retained[?]
A. Yes, it did.
Q. The date on which it was received or created and kept [?]
A. I don’t remember if it had that detail.
Q. If the document was uplifted or removed or sent away, there would’ve been an appropriate notation to that effect[?]
A. I don’t know if that was kept in the register. I just know there was a list of documents that were kept in a filing cabinet.
Q. Presumably, if common sense applies, if a document that was identified in the register came out of the filing cabinet to go somewhere, there would’ve been a notation somewhere [?]
A. Somewhere, yes.
Q. Either in the fil[ing] cabinet, or the register, or an empty envelope[?]
A. Or in the matter file, there might’ve been a letter[?]
Q. There’s no such reference in any register or any envelope or whatever to the deceased’s May 15 will, is there?
A. I don’t know. I haven’t seen the register. I can’t remember.
Q. You don’t remember creating such an entry[?]
A. No.”
Ms Leggat, who had nothing to do with the creation of the Will, said she could only speak for herself when agreeing that if her firm had retained the Original, there would have been some sort of record of it either being deposited, maintained or then uplifted.
Implicit in the primary judge’s statement at PJ [54] that he was “not persuaded” that the presumption applies is the fact that the Appellant carried the burden in establishing that possession of the Original was last traced to the Deceased. The exiguous evidence referred to in the previous two paragraphs does not generate any reason in my mind to question his Honour’s lack of persuasion or to reverse his conclusion on appeal. On the contrary, for the reasons given by the primary judge and elaborated upon above, the Appellant did not demonstrate that the Original was last in the possession of the Deceased so as to engage the presumption. The Deceased’s conduct and her requests and interactions with her various solicitors were all quite inconsistent with her ever being in possession of the Original following its execution.
Even if the presumption had been engaged, the primary judge expressed the conclusion that “it has been well and truly rebutted”: PJ [55]. I agree.
The primary judge at PJ [59] identified the factors driving this conclusion as follows:
“1. the Will is a carefully and professionally drawn document, making full and detailed provision for the disposition of the deceased’s entire estate;
- the Codicil refers to the Will as if it exists. If, as it was contended on behalf of Branka the deceased knew that destruction of a will amounted to revocation the reference in the Codicil to her Will is irrational. Evidence from various witnesses establishes she was in full control of her mental processes;
- contrary to the submission put on behalf of Branka, the reference in the Codicil to the reference in it to “my Last Will kept by Marc O’Brien, of Redmond Hale Simpson Solicitors” is manifestly one to the Will. There is no other candidate that satisfies this description. Added to this, is the deceased’s references to it being her will; and
- the Codicil, read together with the Will reflect the deceased’s intentions stated on a number of occasions that the Jankovics would get the Surry Hills property and Bozica and Dusko the rest.”
To these factors may be added a number of further factors which were inconsistent with any destruction of the Original with the intention of revoking it.
First, the Deceased’s mailing of a copy of the Will to Bozica in Switzerland in March 2017 is inconsistent with her either having destroyed the Original with a view to revocation or otherwise manifesting any intention of revoking the Will. The same may be said of Dusko’s having discussed the Will with the Deceased in 2018, and the Deceased having told him, as accepted by the primary judge, “please make more copies and keep them in a safe place”: PJ [27].
Counsel for the Appellant said that this still left open the possibility that the Deceased may have destroyed the Original at some time after these exchanges in 2017 and 2018. Apart from being pure speculation, this submission was flatly inconsistent with the exchange deposed to by Mr Bryant as having taken place between the Deceased and him on 18 July 2022, only months prior to the Deceased’s death. That exchange was to the following effect:
“Bryant: Do you have a current will?
Deceased: Yes
Bryant: Do you know where it is located?
Deceased: It is held by Marc O’Brien at Redmond Hale Simpson”.
It was followed by the Deceased then having asked Mr Bryant to obtain all her papers and testamentary documents from Mr O’Brien.
The Appellant’s reference in argument to the uncontroversial fact that, between May 2004 and May 2015, the Deceased had made and destroyed several testamentary instruments had no forensic significance in view of the Deceased’s positive statements to Mr Bryant in July 2022 as to the currency of her will. The will to which she referred in that exchange can only have been the copy of the Will the subject of the application for probate.
These considerations only reinforce the primary judge’s reasons for concluding that the presumption, if engaged, had been rebutted.
The primary judge added for completeness at PJ [61] that he was “satisfied that the deceased intended the Codicil to form her Will or an alteration to her Will within s 8(2). If the Will had been destroyed animo revocandi, the Codicil revived it. Either way, there is no room for the presumption to have operated.”
No effective attack was made on this reasoning. The primary judge accepted the evidence of Srdja noted at [8] above as to why the Codicil was not witnessed by the hospital staff. In any event, once it is accepted that the presumption did not apply or in any event was rebutted, the efficacy of the Codicil was of no relevance to the Appellant’s contention that the Deceased died intestate. It was relevant as between the beneficiaries of the gift of the Surry Hills Property and the beneficiaries under the Will. There was no contest between those parties.
The appeal should be dismissed with costs.
PAYNE JA: I agree with the Chief Justice.
KIRK JA: I agree with Bell CJ.
Jaksic-Repac
Dundjerski [2025] NSWCA 256
(1910) 10 CLR 434
Appeal dismissed with costs: [42]. Payne JA and Kirk JA agreed with Bell CJ: [43]-[44].
On 14 June 2022, while still in hospital, the Deceased signed a document headed “Codicil to my last will and testament of Mimi Jaksic Berger” (the Codicil), the operative parts of which provided: